Procedures for Asylum and Bars to Asylum Eligibility
| Published date | 19 December 2019 |
| Citation | 84 FR 69640 |
| Record Number | 2019-27055 |
| Section | Proposed rules |
| Court | Executive Office For Immigration Review,U.s. Citizenship And Immigration Services |
Federal Register, Volume 84 Issue 244 (Thursday, December 19, 2019)
[Federal Register Volume 84, Number 244 (Thursday, December 19, 2019)]
[Proposed Rules]
[Pages 69640-69661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27055]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 244 / Thursday, December 19, 2019 /
Proposed Rules
[[Page 69640]]
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 208
RIN 1615-AC41
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[EOIR Docket No. 18-0002; A.G. Order No. 4592-2019]
RIN 1125-AA87
Procedures for Asylum and Bars to Asylum Eligibility
AGENCY: Executive Office for Immigration Review, Department of Justice;
U.S. Citizenship and Immigration Services, Department of Homeland
Security.
ACTION: Joint notice of proposed rulemaking.
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SUMMARY: The Department of Justice and the Department of Homeland
Security (collectively, ``the Departments'') propose to amend their
respective regulations governing the bars to asylum eligibility. The
Departments also propose to clarify the effect of criminal convictions
and to remove their respective regulations governing the automatic
reconsideration of discretionary denials of asylum applications.
DATES: Written or electronic comments must be submitted on or before
January 21, 2020. Written comments postmarked on or before that date
will be considered timely. The electronic Federal Docket Management
System will accept comments prior to midnight eastern time at the end
of that day.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0002, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 18-0002 on your correspondence. This mailing
address may be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Lauren Alder Reid, Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact
Telephone Number (703) 305-0289 (not a toll-free call).
FOR FURTHER INFORMATION CONTACT:
Lauren Alder Reid, Assistant Director, Office of Policy, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls
Church, VA 22041, Contact Telephone Number (703) 305-0289 (not a toll-
free call).
Maureen Dunn, Chief, Division of Humanitarian Affairs, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services, U.S.
Citizenship and Immigration Services (USCIS), DHS, 20 Massachusetts NW,
Washington, DC 20529-2140; Contact Telephone Number (202) 272-8377 (not
a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Departments also invite comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
Comments must be submitted in English, or an English translation must
be provided. To provide the most assistance to the Departments,
comments should reference a specific portion of the rule; explain the
reason for any recommended change; and include data, information, or
authority that support the recommended change.
All comments submitted for this rulemaking should include the
agency name and EOIR Docket No. 18-0002. Please note that all comments
received are considered part of the public record and made available
for public inspection at www.regulations.gov. Such information includes
personally identifiable information (such as a person's name, address,
or any other data that might personally identify that individual) that
the commenter voluntarily submits. You may wish to consider limiting
the amount of personal information that you provide in any voluntary
public comment submission you make to the Departments. The Departments
may withhold information provided in comments from public viewing that
they determine may impact the privacy of an individual or is offensive.
For additional information, please read the Privacy Act notice that is
available via the link in the footer of http://www.regulations.gov.
If you want to submit personally identifiable information as part
of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
paragraph of your comment and precisely and prominently identify the
information for which you seek redaction.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment and precisely and prominently identify the confidential
business information for which you seek redaction. If a comment has so
much confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted on
www.regulations.gov. Personally identifiable information and
confidential business information provided as set forth above will be
placed in EOIR's public docket file, but not posted online. To inspect
the public docket file in person, you must make an appointment with
EOIR. Please see the FOR FURTHER INFORMATION CONTACT paragraph above
for the contact information specific to this rule.
II. Background
Asylum is a discretionary immigration benefit that generally can be
sought by eligible aliens who are physically present or arriving in the
United States, irrespective of their status, as provided in section 208
of the Immigration and Nationality Act (``INA''), 8 U.S.C. 1158.
Congress, however, has provided that certain
[[Page 69641]]
categories of aliens cannot receive asylum and has further delegated to
the Attorney General and the Secretary of Homeland Security
(``Secretary'') the authority to promulgate regulations establishing
additional bars on eligibility to the extent consistent with the asylum
statute, as well as the authority to establish ``any other conditions
or limitations on the consideration of an application for asylum'' that
are consistent with the INA. See INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C.
1158(b)(2)(C), (d)(5)(B). This proposed rule will limit aliens'
eligibility for this discretionary benefit if they fall within certain
categories related to criminal behavior. The proposed rule will also
eliminate a regulation concerning the automatic reconsideration of
discretionary denials of asylum applications.
A. Joint Notice of Proposed Rulemaking
The Attorney General and the Acting Secretary of Homeland Security
publish this joint notice of proposed rulemaking in the exercise of
their respective authorities concerning asylum determinations.
The Homeland Security Act of 2002, Public Law 107-296, as amended
(``the Act'' or ``the HSA''), transferred many functions related to the
execution of federal immigration law to the newly created Department of
Homeland Security (``DHS''). The Act charges the Secretary ``with the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens,'' 8 U.S.C.
1103(a)(1), and grants the Secretary the power to take all actions
``necessary for carrying out'' the provisions of the immigration and
nationality laws, id. 1103(a)(3). The Act also transferred to U.S.
Citizenship and Immigration Services (``USCIS'') responsibility for
affirmative asylum applications, i.e., applications for asylum made
outside the removal context. See 6 U.S.C. 271(b)(3). If an alien is not
in removal proceedings or is an unaccompanied alien child, DHS asylum
officers determine in the first instance whether an alien's asylum
application should be granted. See 8 CFR 208.9.
At the same time, the Act retained for the Attorney General
authority over certain individual immigration adjudications, including
those related to asylum. These proceedings are conducted by the
Department of Justice through the Executive Office for Immigration
Review (``EOIR''), subject to the direction and regulation of the
Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). Accordingly,
immigration judges within the Department of Justice continue to
adjudicate all defensive asylum applications made by aliens during the
removal process and review affirmative asylum applications referred by
USCIS to the immigration courts. See 8 U.S.C. 1101(b)(4); 8 CFR 1208.2.
See generally Dhakal v. Sessions, 895 F.3d 532, 536-37 (7th Cir. 2018)
(describing affirmative and defensive asylum processes). The Board of
Immigration Appeals within the Department of Justice, in turn, hears
appeals from immigration judges' decisions. 8 CFR 1003.1. In addition,
the HSA amended the INA to mandate ``[t]hat determination and ruling by
the Attorney General with respect to all questions of law shall be
controlling.'' 8 U.S.C. 1103(a)(1). This broad division of functions
and authorities informs the background of this proposed rule.
B. Domestic Legal Framework for Asylum
Asylum is a form of discretionary relief under section 208 of the
INA, 8 U.S.C. 1158, that precludes an alien from being subject to
removal, creates a path to lawful permanent resident status and
citizenship, and affords a variety of other ancillary benefits, such as
allowing certain alien family members to obtain lawful immigration
status derivatively. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th
Cir. 2017); see also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C.
1158(c)(1)(A), (C) (asylees cannot be removed and can travel abroad
without prior consent); INA 208(b)(3), 8 U.S.C. 1158(b)(3) (allowing
derivative asylum for asylee's spouse and unmarried children); INA
209(b), 8 U.S.C. 1159(b) (allowing the Attorney General or Secretary to
adjust the status of an asylee to that of a lawful permanent resident);
INA 316(a), 8 U.S.C. 1427(a) (describing requirements for
naturalization of lawful permanent residents). Aliens who are granted
asylum are authorized to work in the United States and to receive
certain financial assistance from the Federal Government. See INA
208(c)(1)(B), (d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8 U.S.C.
1612(a)(2)(A), (b)(2)(A); 8 U.S.C. 1613(b)(1); 8 CFR 274a.12(a)(5); see
also 8 CFR 274a.12(c)(8) (providing that asylum applicants may seek
employment authorization 150 days after filing a complete application
for asylum).
In 1980, the Attorney General, in his discretion, established
several mandatory bars to asylum eligibility. See 8 CFR 208.8(f)
(1980); Aliens and Nationality; Refugee and Asylum Procedures, 45 FR
37392, 37392 (June 2, 1980). In 1990, the Attorney General
substantially amended the asylum regulations, but exercised his
discretion to retain the mandatory bars to asylum eligibility related
to persecution of others on account of a protected ground, conviction
of a particularly serious crime in the United States, firm resettlement
in another country, and the existence of reasonable grounds to regard
the alien as a danger to the security of the United States. See Aliens
and Nationality; Asylum and Withholding of Deportation Procedures, 55
FR 30674-01, 30678, 30683 (July 27, 1990); see also Yang v. INS, 79
F.3d 932, 936-39 (9th Cir. 1996) (upholding firm resettlement bar);
Komarenko v. INS, 35 F.3d 432, 436 (9th Cir. 1994) (upholding
particularly serious crime bar), abrogated on other grounds by Abebe v.
Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc). In 1990, Congress
added another mandatory bar for those with aggravated felony
convictions. Immigration Act of 1990, Public Law 101-649, sec. 515, 104
Stat. 4987.
With the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (``IIRIRA'') in 1996, Congress added three more
categorical bars on the ability to apply for asylum, for: (1) Aliens
who can be removed to a safe third country pursuant to a bilateral or
multilateral agreement; (2) aliens who failed to apply for asylum
within one year of arriving in the United States; and (3) aliens who
have previously applied for asylum and had the application denied.
Public Law 104-208, div. C, sec. 604. Congress also adopted six
mandatory bars to asylum eligibility that largely reflected the pre-
existing, discretionary bars set forth in the Attorney General's
existing asylum regulations. These bars cover (1) aliens who ``ordered,
incited, or otherwise participated'' in the persecution of others; (2)
aliens convicted of a ``particularly serious crime'' in the United
States; (3) aliens who committed a ``serious nonpolitical crime outside
the United States'' before arriving in the United States; (4) aliens
who are a ``danger to the security of the United States;'' (5) aliens
who are inadmissible or removable under a set of specified grounds
relating to terrorist activity; and (6) aliens who were ``firmly
resettled'' in another country prior to arriving in the United States.
Id. (codified at 8 U.S.C. 1158(b)(2) (1997)). Congress further added
that aggravated felonies, defined in 8 U.S.C. 1101(a)(43), would be
considered ``particularly serious crime[s].'' Id. (codified at 8 U.S.C.
1158(b)(2)(B)(i) (1997)).
Although Congress has enacted specific asylum eligibility bars,
that statutory list is not exhaustive. Congress, in IIRIRA, further
provided
[[Page 69642]]
the Attorney General with the authority to establish by regulation
``any other conditions or limitations on the consideration of an
application for asylum,'' so long as those limitations are ``not
inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B); see also INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
Aliens who apply for asylum must satisfy two criteria. They must
establish that they (1) are statutorily eligible for asylum; and (2)
merit a favorable exercise of discretion. INA 208(b)(1)(A),
240(c)(4)(A), 8 U.S.C. 1158(b)(1)(A), 1229a(c)(4)(A); Matter of A-B-,
27 I&N Dec. 316, 345 n.12 (A.G. 2018), abrogated on other grounds by
Grace v. Whitaker, 344 F. Supp. 3d 96, 140 (D.D.C. 2018); see also,
e.g., Fisenko v. Lynch, 826 F.3d 287, 291 (6th Cir. 2016); Kouljinski
v. Keisler, 505 F.3d 534, 541-42 (6th Cir. 2007); Gulla v. Gonzales,
498 F.3d 911, 915 (9th Cir. 2007); Dankam v. Gonzales, 495 F.3d 113,
120 (4th Cir. 2007); Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir.
2002). As the Attorney General recently observed, ``[a]sylum is a
discretionary form of relief from removal, and an applicant bears the
burden of proving not only statutory eligibility for asylum but that he
also merits asylum as a matter of discretion.'' Matter of A-B-, 27 I&N
Dec. at 345 n.12; see also Moncrieffe v. Holder, 569 U.S. 184, 187
(2013) (describing asylum as a form of ``discretionary relief from
removal''); Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007)
(``Asylum is a discretionary form of relief . . . . Once an applicant
has established eligibility . . . , it remains within the Attorney
General's discretion to deny asylum.'').
With respect to eligibility for asylum, section 208 of the INA
provides that an applicant must (1) be ``physically present'' or
``arrive[ ]'' in the United States, INA 208(a)(1), 8 U.S.C. 1158(a)(1);
(2) meet the statutory definition of a ``refugee,'' INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A); and (3) otherwise be eligible for asylum, INA
208(b)(2), 8 U.S.C. 1158(b)(2); 8 CFR 1240.8(d).
In general, a refugee is someone who is outside of his country of
nationality and who is unable or unwilling to return to that country
``because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.'' INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A). The alien bears the burden of proof to establish that
he meets eligibility criteria, including that he qualifies as a
refugee. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i).
Aliens must also establish that they are otherwise eligible for
asylum, meaning that they are not subject to one of the statutory bars
to asylum or any ``additional limitations and conditions . . . under
which an alien shall be ineligible for asylum'' established by
regulation. See INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). The INA
currently bars from asylum eligibility any alien who (1) ``ordered,
incited, assisted, or otherwise participated in the persecution of any
person on account of'' a protected ground; (2) ``having been convicted
by a final judgment of a particularly serious crime, constitutes a
danger to the community of the United States;'' (3) ``has committed a
serious nonpolitical crime outside the United States'' prior to arrival
in the United States; (4) constitutes ``a danger to the security of the
United States;'' (5) is described in the terrorism-related
inadmissibility grounds, with limited exception; or (6) ``was firmly
resettled in another country prior to arriving in the United States.''
INA 208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi).
Aliens who fall within one of these bars are subject to mandatory
denial of asylum. Where there is evidence that ``one or more of the
grounds for mandatory denial of the application for relief may apply,''
the applicant in immigration court proceedings bears the burden of
establishing that the bar at issue does not apply. 8 CFR 1240.8(d); see
also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008)
(applying 8 CFR 1240.8(d) in the context of the aggravated felony bar
to asylum); Su Qing Chen v. U.S. Att'y Gen., 513 F.3d 1255, 1257 (11th
Cir. 2008) (applying 8 CFR 1240.8 in the context of the persecutor
bar); Xu Sheng Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d Cir. 2007)
(same).
Because asylum is a discretionary benefit, aliens who are eligible
for asylum are not automatically entitled to it. Rather, after
demonstrating eligibility, aliens must further meet their burden of
showing that the Attorney General or Secretary should exercise his or
her discretion to grant asylum. See INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A) (the ``Secretary of Homeland Security or the Attorney
General may grant asylum to an alien'' who applies in accordance with
the required procedures and meets the definition of a refugee (emphasis
added)); Matter of A-B-, 27 I&N Dec. at 345 n.12; Matter of Pula, 19
I&N Dec. 467, 474 (BIA 1987).
Additionally, aliens whose asylum applications are denied may
nonetheless be able to obtain protection from removal under other
provisions of the immigration laws. A defensive application for asylum
that is submitted by an alien in removal proceedings is also
automatically deemed an application for statutory withholding of
removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8
CFR 1208.3(b). An immigration judge may also consider an alien's
eligibility for withholding and deferral of removal under regulations
implementing U.S. obligations under Article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(``CAT''), which were issued pursuant to section 2242 of the Foreign
Affairs Reform and Restructuring Act of 1998, Public Law 105-277 (8
U.S.C. 1231 note). See 8 CFR 1208.13(c)(1); see also 8 CFR 1208.16(c)
through 1208.18.
These forms of protection prohibit removal to any country where the
alien would more likely than not be persecuted on account of a
protected ground or tortured. Applying the relevant standard, if an
alien proves that it is more likely than not that the alien's life or
freedom would be threatened on account of a protected ground, but is
denied asylum for some other reason--for instance, because of an
eligibility bar or a discretionary denial of asylum--the alien may be
entitled to statutory withholding of removal if not otherwise
statutorily barred. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR
208.16, 1208.16; see also Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir.
2017) (``[W]ithholding of removal has long been understood to be a
mandatory protection that must be given to certain qualifying aliens,
while asylum has never been so understood.''). Likewise, an alien who
establishes that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal will qualify for
CAT protection. See 8 CFR 1208.16(c) through 1208.18. But, unlike
asylum, statutory withholding and CAT protection do not (1) prohibit
the Government from removing the alien to a third country where the
alien does not face persecution or torture, regardless of whether the
country is a party to a bilateral or multilateral agreement
specifically authorizing such removal, contra 8 U.S.C. 1158(a)(2)(A)
(denying eligibility to apply for asylum ``if the Attorney General
determines that the alien may be removed, pursuant to a bilateral or
multilateral agreement, to a [third] country''); (2) create a path to
lawful permanent resident status and citizenship; or (3) afford the
same ancillary benefits (such as derivative protection for family
members). See R-S-C, 869 F.3d at 1180.
[[Page 69643]]
C. Bars to Eligibility for Asylum
Eligibility for asylum has long been qualified both by statutory
bars and by the discretion of the Attorney General and the Secretary to
create additional bars. Those bars have developed over time in a back-
and-forth process between Congress and the Attorney General. The
original asylum provisions, as set out in the Refugee Act of 1980,
Public Law 96-212, simply directed the Attorney General to ``establish
a procedure for an alien physically present in the United States or at
a land border or port of entry, irrespective of such alien's status, to
apply for asylum,'' and provided that ``the alien may be granted asylum
in the discretion of the Attorney General if the Attorney General
determines that such alien is a refugee'' within the meaning of the
title. 8 U.S.C. 1158(a) (1994); see also INS v. Cardoza-Fonseca, 480
U.S. 421, 427-29 (1987) (describing the 1980 provisions).
In the 1980 implementing regulations, the Attorney General, in his
discretion, established several mandatory bars to asylum eligibility
that were modeled on the mandatory bars to eligibility for withholding
of deportation under the existing section 243(h) of the INA. See 8 CFR
208.8(f) (1980); 45 FR at 37392 (``The application will be denied if
the alien does not come within the definition of refugee under the Act,
is firmly resettled in a third country, or is within one of the
undesirable groups described in section 243(h) of the Act, e.g., having
been convicted of a serious crime, constitutes a danger to the United
States.''). Those regulations required denial of an asylum application
if it was determined that (1) the alien was not a refugee within the
meaning of section 101(a)(42) of the INA; (2) the alien was firmly
resettled in a foreign country before arriving in the United States;
(3) the alien ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, religion,
nationality, membership in a particular group, or political opinion;
(4) the alien had been convicted by a final judgment of a particularly
serious crime and therefore constituted a danger to the community of
the United States; (5) there were serious reasons for considering that
the alien has committed a serious non-political crime outside the
United States prior to the arrival of the alien in the United States;
or (6) there were reasonable grounds for regarding the alien as a
danger to the security of the United States. 45 FR at 37394-95.
In 1990, the Attorney General substantially amended the asylum
regulations, but exercised his discretion to retain the mandatory bars
to asylum eligibility for persecution of others on account of a
protected ground, conviction of a particularly serious crime in the
United States, firm resettlement in another country, and reasonable
grounds to regard the alien as a danger to the security of the United
States. See 55 FR at 30683; see also Yang, 79 F.3d at 936-39 (upholding
firm resettlement bar); Komarenko, 35 F.3d at 436 (upholding
particularly serious crime bar). In the Immigration Act of 1990,
Congress added an additional mandatory bar to eligibility to apply for
or be granted asylum for ``an[y] alien who has been convicted of an
aggravated felony.'' Public Law 101-649, sec. 515, 104 Stat. 4987.
In 1996, with the passage of IIRIRA and the Antiterrorism and
Effective Death Penalty Act of 1996, Public Law 104-132, Congress
amended the asylum provisions in section 208 of the INA, 8 U.S.C. 1158.
Among other amendments, Congress created three categories of aliens who
are barred from applying for asylum: (1) Aliens who can be removed to a
safe third country pursuant to bilateral or multilateral agreement; (2)
aliens who failed to apply for asylum within one year of arriving in
the United States; and (3) aliens who have previously applied for
asylum and had the application denied. Public Law 104-208, div. C, sec.
604.
Congress also adopted six mandatory bars to asylum eligibility that
largely reflected the pre-existing, discretionary bars set forth in the
Attorney General's existing asylum regulations. These bars cover (1)
aliens who ``ordered, incited, or otherwise participated'' in the
persecution of others; (2) aliens convicted of a ``particularly serious
crime'' in the United States; (3) aliens who committed a ``serious
nonpolitical crime outside the United States'' before arriving in the
United States; (4) aliens who are a ``danger to the security of the
United States;'' (5) aliens who are inadmissible or removable under a
set of specified grounds relating to terrorist activity; and (6) aliens
who were ``firmly resettled'' in another country prior to arriving in
the United States. Id. (codified at 8 U.S.C. 1158(b)(2) (1997)).
Congress further added that aggravated felonies, defined in 8 U.S.C.
1101(a)(43), would be considered ``particularly serious crime[s].'' Id.
(codified at 8 U.S.C. 1158(b)(2)(B)(i) (1997)).
Although Congress has enacted specific asylum eligibility bars,
that statutory list is not exhaustive. Congress, in IIRIRA, expressly
authorized the Attorney General to expand upon two bars to asylum
eligibility--the bars for ``particularly serious crimes'' and ``serious
nonpolitical offenses.'' See id. Although Congress prescribed that all
aggravated felonies constitute particularly serious crimes, Congress
further provided that the Attorney General may ``designate by
regulation offenses that will be considered'' a ``particularly serious
crime,'' by reason of which the offender ``constitutes a danger to the
community of the United States.'' INA 208(b)(2)(A)(ii), (B)(ii), 8
U.S.C. 1158(b)(2)(A)(iii), (B)(ii). Courts and the Board of Immigration
Appeals (``Board'') have long held that this grant of authority also
authorizes the Board to identify additional particularly serious crimes
(beyond aggravated felonies) through case-by-case adjudication. See,
e.g., Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir. 2011) (en banc);
Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006). Congress likewise
authorized the Attorney General to designate by regulation offenses
that constitute ``a serious nonpolitical crime outside the United
States prior to the arrival of the alien in the United States.'' INA
208(b)(2)(A)(iii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(iii), (B)(ii).\1\
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\1\ Although these provisions continue to refer only to the
Attorney General, those authorities also lie with the Secretary by
operation of the HSA.
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In addition to authorizing the discretionary expansion of crimes
that would constitute particularly serious crimes or serious
nonpolitical offenses, Congress further provided the Attorney General
with the authority to establish by regulation ``any other conditions or
limitations on the consideration of an application for asylum,'' so
long as those limitations are ``not inconsistent with this chapter.''
INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B); see also INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C) (allowing for the establishment by regulation of
``additional limitations and conditions, consistent with this section,
under which an alien shall be ineligible for asylum''). As the Tenth
Circuit has recognized, ``[t]his delegation of authority means that
Congress was prepared to accept administrative dilution of the asylum
guarantee in Sec. 1158(a)(1),'' given that ``the statute clearly
empowers'' the Attorney General and the Secretary to ``adopt[ ] further
limitations'' on asylum eligibility. R-S-C, 869 F.3d at 1187 & n.9. In
providing for ``additional limitations and conditions,'' the statute
gives the Attorney General and the Secretary broad authority in
determining what the ``limitations and conditions'' should be--e.g.,
based on non-criminal or procedural grounds like the existing
[[Page 69644]]
exceptions for firm resettlement, INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), or based on filing time limits, INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B), or based on certain criminal activity, INA
208(b)(2)(A)(ii), 8 U.S.C. 1158(b)(2)(A)(ii). The additional
limitations on eligibility must simply be established ``by
regulation,'' and must be ``consistent with'' the rest of 8 U.S.C.
1158.
Thus, the Attorney General in the past has invoked section
208(b)(2)(C) of the INA to limit eligibility for asylum based on a
``fundamental change in circumstances'' and on the ability of an
applicant to safely relocate internally within a country. See Asylum
Procedures, 65 FR 76121, 76127 (Dec. 6, 2000) (codified at 8 CFR
208.13(b)(1)(i)(A) and (B)). The courts have also viewed this provision
as a broad authority, and have suggested that ineligibility based on
fraud would be authorized under it. See Nijjar v. Holder, 689 F.3d
1077, 1082 (9th Cir. 2012) (noting that fraud can be ``one of the
`additional limitations . . . under which an alien shall be ineligible
for asylum' that the Attorney General is authorized to establish by
regulation'').
The current statutory framework accordingly leaves the Attorney
General (and, after the HSA, the Secretary) significant discretion to
adopt additional bars to asylum eligibility. Congress has expressly
identified one class of particularly serious crimes--aggravated
felonies--so that aliens who commit such offenses are categorically
ineligible for asylum and there is no discretion to grant such aliens
asylum under any circumstances. Congress has left the task of further
defining particularly serious crimes or serious nonpolitical offenses
to the discretion of the Attorney General and the Secretary.\2\ And
Congress has provided the Attorney General and Secretary with
additional discretion to establish by regulation additional limitations
or conditions on eligibility for asylum. Those limitations may involve
other types of crimes or non-criminal conduct, so long as the
limitations are consistent with other aspects of the asylum statute.
---------------------------------------------------------------------------
\2\ ``[A]n alien who has been convicted of an aggravated felony
(or felonies) for which the alien has been sentenced to an aggregate
term of imprisonment of at least 5 years shall be considered to have
committed a particularly serious crime. The previous sentence shall
not preclude the Attorney General from determining that,
notwithstanding the length of sentence imposed, an alien has been
convicted of a particularly serious crime.'' H.R. Rep No. 104-863,
at 616 (1996).
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D. United States Laws Implementing International Treaty Obligations
The proposed rule is consistent with U.S. obligations under the
1967 Protocol relating to the Status of Refugees (``Refugee Protocol'')
(incorporating Articles 2 through 34 of the 1951 Convention relating to
the Status of Refugees (``Refugee Convention'')) and the CAT. Neither
the 1967 Refugee Protocol nor the CAT is self-executing. See Khan v.
Holder, 584 F.3d 773, 783 (9th Cir. 2009) (`[T]he [1967 Refugee]
Protocol is not self-executing.''); Auguste v. Ridge, 395 F.3d 123, 132
(3d Cir. 2005) (the CAT ``was not self-executing''). Therefore, these
treaties are not directly enforceable in U.S. law, but some of the
obligations they contain have been implemented by domestic legislation.
For example, the United States has implemented the non-refoulement
provisions of these treaties--i.e., provisions prohibiting the return
of an individual to a country where he or she would face persecution or
torture--through the withholding of removal provisions at section
241(b)(3) of the INA and the CAT regulations, not through the asylum
provisions at section 208 of the INA. See Cardoza-Fonseca, 480 U.S. at
440-41. The proposed rule is consistent with those obligations because
it affects only eligibility for asylum. It does not affect grants of
the statutory withholding of removal or protection under the CAT
regulations. See R-S-C, 869 F.3d at 1188 n. 11; Cazun v. Att'y Gen.,
856 F.3d 249, 257 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 813 F.3d 240,
241 (5th Cir. 2016).
Limitations on eligibility for asylum are also consistent with
Article 34 of the 1951 Refugee Convention, concerning assimilation of
refugees, as implemented by 8 U.S.C. 1158. Section 1158 reflects that
Article 34 is precatory and not mandatory, and accordingly does not
provide that all refugees shall receive asylum. See Cardoza-Fonseca,
480 U.S. at 441; R-S-C, 869 F.3d at 1188; Mejia v. Sessions, 866 F.3d
573, 588 (4th Cir. 2017); Garcia, 856 F.3d at 42; Cazun, 856 F.3d at
257 & n.16; Ramirez-Mejia, 813 F.3d at 241. Moreover, the state parties
to the Refugee Convention sought to ``deny admission to their
territories of criminals who would present a danger to security and
public order.'' United Nations High Comm'r for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees ]
148 (1979) (edited Jan. 1992). Accordingly, the Refugee Convention
incorporated exclusion clauses, including a bar to refugee status for
those who committed serious nonpolitical crimes outside the country of
refuge prior to their entry into the country of refuge that sought ``to
protect the community of a receiving country from the danger of
admitting a refugee who has committed a serious common crime.'' Id. ]
151. As noted above, Congress has long recognized this principle in
U.S. law by imposing various statutory bars to eligibility for asylum
and by authorizing the creation of new bars to eligibility through
regulation.\3\
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\3\ Courts have likewise rejected arguments that other
provisions of the Refugee Convention require every refugee to
receive asylum. Courts have held, in the context of upholding the
bar on eligibility for asylum in reinstatement proceedings under
section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), that limiting the
ability to apply for asylum does not constitute a prohibited
``penalty'' under Article 31(1) of the Refugee Convention. Mejia,
866 F.3d at 588; Cazun, 856 F.3d at 257 n.16. Courts have also
rejected the argument that Article 28 of the Refugee Convention,
governing issuance of international travel documents for refugees
``lawfully staying'' in a country's territory, mandates that every
person who might qualify for withholding must also be granted
asylum. R-S-C, 869 F.3d at 1188; Garcia, 856 F.3d at 42.
---------------------------------------------------------------------------
III. Regulatory Changes
The Departments now propose to (1) establish additional bars to
eligibility for asylum for aliens with certain criminal convictions;
(2) clarify the effect of criminal convictions; and (3) remove the
regulations regarding reconsideration of discretionary denials of
asylum.
The Attorney General possesses general authority under section
103(g)(2) of the INA, 8 U.S.C. 1103(g)(2), to ``establish such
regulations . . . as the Attorney General determines to be necessary
for carrying out this section.'' See Tamenut v. Mukasey, 521 F.3d 1000,
1004 (8th Cir. 2008) (en banc) (per curiam) (describing section
1103(g)(2) as ``a general grant of regulatory authority''). Similarly,
Congress has conferred upon the Secretary the authority to ``establish
such regulations . . . as he deems necessary for carrying out his
authority under the provisions of [the INA].'' INA 103(a)(1), (3), 8
U.S.C. 1103(a)(1), (3).
Additionally, the Attorney General and the Secretary have authority
to promulgate this proposed rule under sections 208(b)(2)(B)(ii) and
(C) of the INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C). Under section
208(b)(2)(B)(ii), ``[t]he Attorney General may designate by regulation
offenses that will be considered to be a ``particularly serious crime''
under INA 208(b)(2)(A)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), or a ``serious
nonpolitical crime'' under INA 208(b)(2)(A)(iii), 8 U.S.C.
[[Page 69645]]
1158(b)(2)(A)(iii). Under INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), the
Attorney General may ``by regulation establish additional limitations
and conditions, consistent with [8 U.S.C. 1158], under which an alien
shall be ineligible for asylum under'' INA 208(b)(1).
A. Additional Limitations on Eligibility for Asylum
The Departments propose to revise 8 CFR 208.13 and 1208.13 by
adding paragraphs (c)(6) through (8) to add bars on eligibility for
asylum for certain aliens. First, the regulations would add bars on
eligibility for asylum for aliens who commit certain offenses in the
United States after entering the country. Those bars would apply to
aliens who are convicted of (1) a felony under federal or state law;
(2) an offense under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) (Alien
Smuggling or Harboring); (3) an offense under 8 U.S.C. 1326 (Illegal
Reentry); (4) a federal, state, tribal, or local crime involving
criminal street gang activity; (5) certain federal, state, tribal, or
local offenses concerning the operation of a motor vehicle while under
the influence of an intoxicant; (6) a federal, state, tribal, or local
domestic violence offense, or who are found by an adjudicator to have
engaged in acts of battery or extreme cruelty in a domestic context,
even if no conviction resulted; and (7) certain misdemeanors under
federal or state law for offenses related to false identification; the
unlawful receipt of public benefits from a federal, state, tribal, or
local entity; or the possession or trafficking of a controlled
substance or controlled-substance paraphernalia. The Departments intend
that the criminal ineligibility bars would be limited only to aliens
with convictions and--with a narrow exception in the domestic violence
context \4\--not based only on criminal conduct for which the alien has
not been convicted. In addition, although 8 U.S.C. 1101(a)(43) provides
for the application of the aggravated felony definition to offenses in
violation of the law of a foreign country for which the term of
imprisonment was completed within the previous 15 years, this proposal
is not intended to cover such foreign convictions.
---------------------------------------------------------------------------
\4\ A conviction would not be required in certain situations
involving battery or extreme cruelty. That conduct-specific inquiry
is essentially identical to the inquiry already undertaken in
situations in which an alien seeks to obtain immigration benefits
based on domestic violence that does not necessarily result in a
conviction. See, e.g., INA 240A(b)(2)(A), 8 U.S.C. 1229b(b)(2)(A); 8
CFR 204.2(c)(1)(i)(E), (c)(1)(vi), (c)(2)(iv), (e)(1)(i)(E),
(e)(1)(vi), and (e)(2)(iv).
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1. Aliens Convicted of a Felony Under Federal, State, Tribal, or Local
Law
The Departments are proposing to implement a new bar on eligibility
for asylum for felony convictions. See 8 U.S.C. 1158(b)(2)(B)(ii) and
(C). Felonies are defined in the proposed rule as crimes designated as
felonies by the relevant jurisdiction or crimes punishable by more than
one year's imprisonment.
In the first instance, the Attorney General and the Secretary could
reasonably exercise their discretion to classify felony offenses as
particularly serious crimes for purposes of 8 U.S.C. 1158(b)(2)(B)(ii).
Congress defined ``particularly serious crimes'' in the asylum statute
to expressly encompass all aggravated felonies. See INA
208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i). At present, the INA defines
an aggravated felony by reference to an enumerated list of 21 types of
convictions. INA 101(a)(43), 8 U.S.C. 1101(a)(43). But Congress did not
limit the definition of particularly serious crimes to aggravated
felonies. Rather, Congress expressly authorized the Attorney General to
designate additional particularly serious crimes through regulation or
by case-by-case adjudication. INA 208(b)(2)(B)(ii), 8 U.S.C.
1158(b)(2)(B)(ii); Delgado, 648 F.3d at 1106 (``[t]here is little
question that [the asylum] provision permits the Attorney General, by
regulation, to make particular crimes categorically particularly
serious'' (emphasis omitted)); Gao v. Holder, 595 F.3d 549, 556 (4th
Cir. 2010) (``we think that [s]ection 1158(b)(2)(B)(ii) . . . empowers
the Attorney General to designate offenses which, like aggravated
felonies, will be considered per se particularly serious''). By
defining ``particularly serious crimes'' to include all ``aggravated
felonies,'' but then giving the Attorney General the discretion to
``designate by regulation offenses that will be considered'' a
``particularly serious crime,'' Congress made clear that the bar on
asylum eligibility for particularly serious crimes necessarily
includes, but is not limited to, aggravated felonies. See INA
208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii);
Delgado, 648 F.3d at 1105-06 (explaining that the asylum statute
specifies two categories of crimes that are per se particularly
serious--aggravated felonies, and those that the Attorney General
designates by regulation).
To date, the Attorney General has not used the above-described
authority to promulgate regulations identifying additional categories
of particularly serious crimes. The Board has engaged in case-by-case
adjudication to identify some particularly serious crimes, but this
approach imposes significant interpretive difficulties and costs, while
producing unpredictable results. The Supreme Court has employed the so-
called ``categorical'' approach, established in Taylor v. United
States, 495 U.S. 575 (1990), and its progeny such as Mathis v. United
States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S.
Ct. 2276 (2013), to determine when an offense constitutes an aggravated
felony. Under that approach, courts must compare the elements of the
statutory crime for which an alien was convicted with the generic
elements of the specified federal aggravated felony. As a general
matter, any mismatch between the elements means that the crime of
conviction is not an aggravated felony (unless the statute of
conviction is divisible and the alien was convicted of a particular
offense within the statute that would satisfy the generic definition of
the relevant aggravated felony).
Courts, however, have repeatedly expressed frustration with the
complexity of applying this approach. See, e.g., United States v.
Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011), overruled by
Descamps, 570 U.S. 254 (``In the twenty years since Taylor, we have
struggled to understand the contours of the Supreme Court's framework.
Indeed, over the past decade, perhaps no other area of the law has
demanded more of our resources.''); see also Quarles v. United States,
139 S. Ct. 1872, 1880 (2019) (Thomas, J., concurring); Williams v.
United States, 927 F.3d 427, 446 (6th Cir. 2019) (Merritt, J.,
concurring); Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019)
(Thapar, J., concurring) (``in the categorical-approach world, we
cannot call rape what it is . . . . [I]t is time for Congress to
revisit the categorical approach so we do not have to live in a
fictional world where we call a violent rape non-violent''); United
States v. Evans, 924 F.3d 21, 31 (2d Cir. 2019) (observing that,
although the court may resolve only an actual case or controversy,
``the categorical approach paradoxically instructs courts resolving
such cases to embark on an intellectual enterprise grounded in the
facts of other cases not before them, or even imagined scenarios''
(emphases in original)); United States v. Chapman, 866 F.3d 129, 136-39
(3d Cir. 2017) (Jordan, J., concurring); United States v. Faust, 853
F.3d 39, 60-61 (1st Cir. 2017) (Lynch, J., concurring).
Application of the categorical approach has resulted in anomalous
[[Page 69646]]
decisions in which aliens convicted of a serious criminal offense have
been found not to have been convicted of an aggravated felony. See,
e.g., Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (holding that a
New York controlled substance law was not written in a way that allowed
it to be used as the basis for establishing that a convicted alien was
removable under the INA for drug trafficking); Larios-Reyes v. Lynch,
843 F.3d 146, 149-50 (4th Cir. 2016) (alien's conviction under Maryland
law for sexual abuse of a victim under the age of 14 did not amount to
the aggravated felony of ``sexual abuse of a minor''). The Board has
rectified some anomalies by determining that certain crimes, though not
aggravated felonies, are of a sufficiently pernicious nature that they
should facially constitute particularly serious crimes that would
disqualify aliens from eligibility for asylum or withholding of
removal. See Sopo v. U.S. Att'y Gen., 739 F. App'x 554, 558 (11th Cir.
2018) (the Board and immigration judges ``may focus solely on the
elements of the offense'' to determine whether an offense is a
``particularly serious crime''); In re N-A-M-, 24 I&N Dec. 336, 343
(BIA 2007) (explaining that ``the proper focus for determining whether
a crime is particularly serious is on the nature of the crime,'' and
that its elements alone may be dispositive); see also, e.g., Ahmetovic
v. INS, 62 F.3d 48, 52 (2d Cir. 1995) (upholding the Board's
determination that first-degree manslaughter, while not an aggravated
felony, is per se ``particularly serious'' for asylum purposes).
Furthermore, the Board has looked at the individual circumstances of a
crime to conclude that an even wider range of offenses can be
considered particularly serious crimes on an as-applied basis. See,
e.g., Vaskovska v. Lynch, 655 F. App'x 880, 884 (2d Cir. 2016) (the
Board did not err in its individualized determination that an alien's
conviction for drug possession was a particularly serious crime); Arbid
v. Holder, 700 F.3d 379, 381 (9th Cir. 2012) (the Board did not err in
determining that an alien's mail fraud conviction was particularly
serious even if not an aggravated felony). Even in the withholding
context--where an alien is deemed to have committed a particularly
serious crime if he has been convicted of an aggravated felony (or
felonies) for which the sentence was an aggregate term of imprisonment
of at least 5 years, see 8 U.S.C. 1231(b)(3)(B)--courts have routinely
concluded that crimes that are not aggravated felonies may be
particularly serious. See, e.g., Valerio-Ramirez v. Sessions, 882 F.3d
289, 291, 296 (1st Cir. 2018) (the Board did not err in determining
that an alien's identity theft conviction was particularly serious even
though it was not an aggravated felony); Hamama v. INS, 78 F.3d 233,
240 (6th Cir. 1996) (the Board had power to declare certain firearm
possession crimes ``facially'' particularly serious without an
individualized evaluation of the alien's case, even if such crimes are
not always aggravated felonies); In re N-A-M-, 24 I&N Dec. at 338-39
(felony menacing is a particularly serious crime based on its elements,
though not an aggravated felony).
Nonetheless, this mix of case-by-case adjudication and per se rules
is an inefficient means of identifying categories of offenses that
should constitute particularly serious crimes. The Board has only
rarely exercised its authority to designate categories of offenses as
facially or per se particularly serious, and instead typically looks to
a wide and variable range of evidence in making an individualized
determination of a crime's seriousness. See In re N-A-M-, 24 I&N Dec.
at 343-44; Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). This case-
by-case adjudication means that aliens convicted of the exact same
offense can receive different asylum treatment. For certain crimes--
i.e., those described in this notice of proposed rulemaking--the
Attorney General and the Secretary have determined that the possibility
of such inconsistency is not desirable and that a rule-based approach
is instead warranted in this specific context.
The proposed rule would eliminate the inefficiencies described
above by providing that all felonies would constitute particularly
serious crimes. The determination of whether a crime would be a felony
for purposes of asylum eligibility would depend on whether the relevant
jurisdiction defines the crime as a felony or whether the statute of
conviction allows for a sentence of more than one year. Convictions for
which sentences are longer tend to be associated with crimes of a more
consequential nature. For example, an offender's ``criminal history
category'' for the purposes of sentencing for federal crimes ``serves
as [a] proxy for the need to protect the public from further crimes of
the defendant.'' United States v. Hayes, 762 F.3d 1300, 1314 n.8 (11th
Cir. 2014); see also id. (``In other words, it is a proxy for
recidivism.''). And the criminal history category, in turn, is ``based
on the maximum term imposed in previous sentences rather than on other
measures, such as whether the conviction was designated a felony or
misdemeanor.'' U.S. Sentencing Guidelines Manual Sec. 4A1.2 cmt.
background (U.S. Sentencing Comm'n 2018). This calculation thus
reflects a recognition that crimes with the potential for longer
sentences tend to indicate that the offenders who commit such crimes
are greater dangers to the community.
In addition, defining a felony to include such offenses would also
be consistent with the definition of felonies in other federal
statutes. For instance, convictions for crimes that states designated
as felonies may serve as predicate ``prior felony conviction[s]'' under
the federal career offender statute. See United States v. Beasley, 12
F.3d 280, 282-84 (1st Cir. 1993); United States v. Rivera, 996 F.2d
993, 994-97 (9th Cir. 1993).
Furthermore, defining felonies to include crimes that involve a
possible sentence of more than one year in prison would be generally
consistent with the way that federal law defines felonies. See, e.g., 5
U.S.C. 7313(b) (``For the purposes of this section, `felony' means any
offense for which imprisonment is authorized for a term exceeding one
year''); cf. U.S.S.G. 2L1.2 cmt. n.2 (`` `Felony' means any federal,
state, or local offense punishable by imprisonment for a term exceeding
one year.''). The Model Penal Code and most states likewise define a
felony as a crime with a possible sentence in ``excess of one year.''
Model Penal Code Sec. 1.04(2); see 1 Wharton's Criminal Law Sec. 19 &
n.23 (15th ed.) (surveying state laws). Finally, relying on the
possibility of a sentence in excess of one year--rather than on the
actual sentence imposed--would be consistent with Board precedents
adjudicating whether a crime qualifies as ``particularly serious'' for
purposes of asylum or withholding eligibility. In that context, ``the
sentence imposed is not a dominant factor in determining whether a
conviction is for a particularly serious crime'' because the sentence
actually imposed often depends on factors such as offender
characteristics that ``may operate to reduce a sentence but do not
diminish the gravity of [the] crime.'' In re N-A-M-, 24 I&N Dec. at
343.
Relying on the possibility of a sentence of over one year to define
a felony would capture crimes of a particularly serious nature because
the offenders who commit such crimes are--as a general matter--more
likely to be dangerous to the community than those offenders whose
crimes are punishable by shorter sentences. See 8 U.S.C.
1158(b)(2)(A)(ii) (tying the ``particularly serious crime''
determination to ``danger[ousness] to
[[Page 69647]]
the community''). In addition, by encompassing all crimes with a
sentence of more than one year, regardless of whether the crimes are
defined felonies by the relevant jurisdiction, the definition would
create greater uniformity by accounting for possible variations in how
different jurisdictions may label the same offense. Such a definition
would also avoid anomalies in the asylum context that arise from the
definition of ``aggravated felonies'' under 8 U.S.C. 1101(a)(43), which
defines some qualifying offenses with reference to the length of the
actual sentence ordered. See United States v. Pacheco, 225 F.3d 148,
153-54 (2d Cir. 2000) (agreeing that ordinarily the touchstone in the
aggravated felony definition's reference to sentences is the actual
term of imprisonment imposed). The proposed definition of a felony
would also obviate the need for immigration adjudicators and courts to
apply the categorical approach with respect to aggravated felonies.
This proposal thus would offer a more streamlined and predictable
approach to be applied in the asylum context.\5\
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\5\ The Departments intend that this proposed provision would be
limited to aliens with convictions and would not apply to criminal
conduct for which the alien has not been convicted. Further, this
provision would expand ineligibility for asylum based on offenses
committed in the United States, not offenses committed abroad. This
provision would thus leave unchanged the provision in 8 U.S.C.
1101(a)(43) that provides for application of the aggravated felony
definition to offenses in violation of the law of a foreign country.
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In addition to their authority under section 208(b)(2)(B)(ii) of
the INA, 8 U.S.C. 1158(b)(2)(B)(ii), the Attorney General and the
Secretary further propose relying on their respective authorities under
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), to make all
felony convictions disqualifying for purposes of asylum eligibility.
Federal, state, tribal, or local felony convictions already carry a
number of serious repercussions over and above the sentence imposed.
Felons, including those who are U.S. citizens, may lose certain
privileges, including the ability to apply for Government grants and
live in public housing. See Estep v. United States, 327 U.S. 114, 122 &
n.13 (1946) (explaining that ``[a] felon customarily suffers the loss
of substantial rights''); see also, e.g., Dist. of Columbia v. Heller,
554 U.S. 570, 626-27 (2008) (the Second Amendment does not prohibit
laws disallowing the possession of firearms by felons). Treating a
felony conviction as disqualifying for purposes of obtaining the
discretionary benefit of asylum would be consistent with the
disabilities arising from felony convictions in these other contexts
and would reflect the serious social cost of such crimes.
The Departments also seek public comment on whether (and, if so,
how) to differentiate among crimes designated as felonies and among
crimes punishable by more than one year of imprisonment. For example,
are there crimes that are currently designated as felonies in one or
more relevant jurisdictions in the United States that should not be
categorical bars to asylum eligibility? Are there crimes that are
currently punishable by more than one year's imprisonment in one or
more relevant jurisdictions in the United States that should not be
categorical bars to asylum? Should the definition of a felony depend
instead on the term of imprisonment that was ordered by the court of
jurisdiction? In addition to seeking public comment on whether the
definition of felony in the proposed rule might be over-inclusive, the
Departments also seek comment on whether it might be under-inclusive--
i.e., are there crimes that would not fall under the definition of
felony in the proposed rule, and that do not otherwise constitute
categorical bars to asylum eligibility, that should be made categorical
bars? In sum, the Departments seek input on how the proposed definition
of a felony might be modified. Further, the Departments seek comment on
what measures, if any, are necessary to ensure that aliens who are
victims of human trafficking, but also have convictions caused by or
incident to victimization, are not subject to this bar. For instance,
victims of severe forms of human trafficking may nevertheless receive a
waiver of criminal grounds for inadmissibility in order to qualify for
T nonimmigrant status pursuant to 8 CFR 212.16. See INA 101(a)(15)(T),
212(d)(13)(B), 8 U.S.C. 1101(a)(15)(T), 1182(d)(13)(B).
Regardless of whether the rule encompasses all felony convictions
or some subset of such convictions, the Departments have identified
specific types of offenses below that are proposed in this rule as
grounds for ineligibility for asylum.
2. Federal Convictions for Harboring Aliens
The Attorney General and the Secretary propose to designate all
offenses involving the federal crimes of bringing in or harboring
certain aliens pursuant to sections 274(a)(1)(A) and (2) of the INA, 8
U.S.C. 1324(a)(1)(A), (2), as particularly serious crimes and, in all
events, as discrete bases for ineligibility. See INA 208(b)(2)(B)(ii),
(C), 8 U.S.C. 1158(b)(2)(B)(ii), (C). To convict a person of harboring
an alien under sections 274(a)(1)(A) or (2) of the INA, the Government
must establish that the defendant concealed, harbored, shielded from
detection, or transported an alien, or attempted to do so. INA
274(a)(1)(A), (2), 8 U.S.C. 1324(a)(1)(A), (2). Penalties differ
depending on whether the act was for commercial advantage or financial
gain and on whether serious bodily injury or death occurred. INA
274(a)(1)(B), (2)(B), 8 U.S.C. 1324(a)(1)(B), (2)(B). Most of the
prohibited acts carry a penalty of possible imprisonment of at least
five years, INA 274(a)(1)(B)(i)-(iii), 8 U.S.C. 1324(a)(1)(B)(i)-(iii),
and committing those acts in circumstances resulting in the death of
another person can be punished by a sentence of death or life
imprisonment, INA 274(a)(1)(B)(iv), 8 U.S.C. 1324(a)(1)(B)(iv). The
only exception is for certain instances of the offense of bringing or
attempting to bring in an alien who lacks official authorization to
enter under section 274(a)(2) of the INA, 8 U.S.C. 1324(a)(2), which
carries a possible penalty of imprisonment up to one year, INA
274(a)(2)(A), 8 U.S.C. 274(a)(2)(A).
Convictions under section 1324 are often aggravated felonies under
section 101(a)(43)(N) of the INA, 8 U.S.C. 1101(a)(43)(N), which
defines an aggravated felony as including ``an offense described in
[INA 274(a)(1)(A) or (2)], except in the case of a first offense for
which the alien has affirmatively shown that the alien committed the
offense for the purpose of assisting, abetting, or aiding only the
alien's spouse, child, or parent.'' See Matter of Ruiz-Romero, 22 I&N
Dec. 486, 488, 492-93 (BIA 1999) (holding that an alien convicted of
transporting an illegal alien committed an aggravated felony under
section 101(a)(43)(N) of the INA and was thus deportable); see also
Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) (holding that harboring
an alien constitutes an aggravated felony); Gavilan-Cuate v. Yetter,
276 F.3d 418, 419-20 (8th Cir. 2002) (dismissing an appeal for lack of
jurisdiction because the court had already determined on the
petitioner's direct appeal that he had been convicted of the aggravated
felony of transporting and harboring aliens); United States v. Galindo-
Gallegos, 244 F.3d 728, 733-34 (9th Cir. 2001) (holding that
transporting aliens under 8 U.S.C. 1324(a)(1)(A)(ii) is an aggravated
felony for purposes of section 101(a)(43)(N) of the INA). Aliens
convicted of such aggravated felonies would already be ineligible for
asylum under section 208(b)(2)(B)(i) of the INA.
The proposed rule would broaden this bar so that first-time
offenders who engage in illegal smuggling or harboring
[[Page 69648]]
to aid certain family members, in violation of section 1324(a)(1)(A) or
(2), are deemed to have committed particularly serious crimes. The mens
rea required for a section 1324 conviction under subsection (a)(1)(A)
is ``knowing,'' and under (a)(2) is ``knowing or in reckless
disregard,'' meaning such a conviction displays a serious disregard for
U.S. immigration law. In all events, conviction of a smuggling offense
under section 1324(a)(1)(A) or (2) should also be disqualifying under
section 1158(b)(2)(C), which gives the Attorney General and the
Secretary additional discretion to identify grounds for ineligibility.
Even first-time alien smuggling offenses involving immediate family
members display a serious disregard for U.S. immigration law and pose a
potential hazard to smuggled family members, which often include a
vulnerable child or spouse. See Arizona v. United States, 567 U.S. 387,
396 (noting the ``danger'' posed by ``alien smugglers or aliens who
commit a serious crime''); United States v. Miguel, 368 F.3d 1150, 1157
(9th Cir. 2004), overruled on other grounds by United States v. Gasca-
Ruiz, 852 F.3d 1167 (9th Cir. 2017) (noting that ``young children [are]
more susceptible to the criminal conduct because they [do] not fully
appreciate the danger involved in illegal smuggling'').
3. Federal Convictions for Illegal Reentry
The Attorney General and the Secretary further propose to exercise
their authority under sections 208(b)(2)(B)(ii) and 208(b)(2)(C) of the
INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C), to designate a conviction for
the federal crime of illegal reentry pursuant to section 276 of the
INA, 8 U.S.C. 1326, as precluding asylum eligibility.
Under section 1326(a), aliens who were previously removed and
reenter the United States are subject to fines and to a term of
imprisonment of two years or less. 8 U.S.C. 1326(a). Section 1326(b)
prescribes significantly higher penalties for certain removed aliens
who reenter, such as aliens who were removed after being convicted for
aggravated felonies and then reenter. 8 U.S.C. 1326(b) (authorizing
sentences of imprisonment up to 20 years as possible penalties).
Some convictions under section 1326 already qualify as aggravated
felonies under section 101(a)(43)(O) of the INA, 8 U.S.C.
1101(a)(43)(O), which defines an aggravated felony as including ``an
offense described in section . . . 1326 . . . committed by an alien who
was previously deported on the basis of a conviction for an [aggravated
felony].'' Aliens who commit such offenses are thus already ineligible
for asylum under section 208(b)(2)(B)(i) of the INA, 8 U.S.C.
1158(b)(2)(B)(i).
The proposed rule would broaden this bar so that all aliens
convicted of illegal reentry under section 1326 would be considered to
have committed an offense that disqualifies them from asylum
eligibility. It would also harmonize the treatment of most aliens who
have illegally reentered the United States after being removed, as such
aliens who have a prior order of removal reinstated are already
precluded from asylum eligibility. Section 1326 makes clear that all
offenses relating to illegal reentry are quite serious; even the most
basic illegal reentry offense is punishable by fine and by up to two
years' imprisonment. 8 U.S.C. 1326(a). Illegal reentry also reflects a
willingness to repeatedly disregard the immigration laws despite
alternative means of presenting a claim of persecution. An alien
seeking protection, even one who has previously been removed from the
United States, may present himself or herself at a port of entry
without illegally reentering the United States. An alien who chooses
instead to again enter illegally has repeatedly chosen to flout
immigration laws, and such recidivism suggests that the offense should
be treated more severely. The fact that the alien has repeatedly
engaged in criminal conduct suggests a tendency to engage in such
conduct in the future, thus warranting a conclusion that the alien
poses a danger to the community that makes the alien's crime
particularly serious. See Mariel Alper et al., 2018 Update on Prisoner
Recidivism: A 9-Year Follow-up Period (2005-2014) 17 (2018) (``Overall,
excluding probation and parole violations, 82.4% of prisoners released
in 30 states in 2005 were arrested within 9 years.''); U.S. Sentencing
Comm'n, The Past Predicts the Future: Criminal History and Recidivism
of Federal Offenders 14 (2017) (``Overall, an offender's total criminal
history score is a strong predictor of recidivism. Rearrest rates range
from a low of 30.2 percent of offenders with zero criminal history
points to a high of 85.7 percent for offenders with 15 or more criminal
history points. Each additional criminal history point is generally
associated with a greater likelihood of recidivism.''); Nick Tilley,
Analyzing and Responding to Repeat Offending 11 (2013) (``Once criminal
careers are established and offenders are processed by the criminal
justice system, recidivism rates become very high: Up to two-thirds of
those who are incarcerated will reoffend within a few years.'').
Moreover, Congress, as noted above, has already designated certain
crimes related to illegal reentry as aggravated felonies. See 8 U.S.C.
1101(a)(43)(O). This designation reflects a congressional decision that
aliens who commit these crimes are dangers to the community, see 8
U.S.C. 1158(b)(2)(A)(ii) (tying the ``particularly serious crime''
determination to ``danger[ousness] to the community''), so aliens who
commit similar crimes related to reentry are also likely be dangers to
the community. Further, 63% of those convicted of illegal reentry had a
prior criminal history, again suggesting that the offenders who commit
these crimes pose an ongoing danger to others. See U.S. Sentencing
Comm'n, Quick Facts: Illegal Reentry Offenses 1 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Illegal_Reentry_FY18.pdf.
As a separate basis for this aspect of the proposed rule, the
Attorney General and the Secretary propose making illegal reentry a
ground for ineligibility under section 208(b)(2)(C) of the INA, 8
U.S.C. 1158(b)(2)(C). A regulation providing for the mandatory
ineligibility for asylum based on convictions for illegal reentry of
removed aliens, see INA 276, 8 U.S.C. 1326, would bear a close
relationship to the statutory bar on applying for asylum when a
previous order of removal is reinstated, see INA 241(a)(5), 8 U.S.C.
1231(a)(5). An alien subject to reinstatement of a prior removal order
is not eligible to apply for any relief from removal, but may seek
protection such as statutory withholding of removal and protection
pursuant to the CAT regulations. See, e.g., Cazun, 856 F.3d at 254. The
statutory bar on applying for asylum and other forms of relief when an
order of removal is reinstated has been upheld by every circuit to
consider the question. See Garcia v. Sessions, 873 F.3d 553, 557 (7th
Cir. 2017), cert. denied, 138 S. Ct. 2648 (2018); R-S-C, 869 F.3d at
1189; Mejia, 866 F.3d at 587; Garcia, 856 F.3d at 30; Cazun, 856 F.3d
at 260; Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016);
Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d 1307, 1310 (11th Cir.
2016); Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015);
Herrera-Molina v. Holder, 597 F.3d 128, 137-38 (2d Cir. 2010). That bar
reflects legislators' apparent concerns that aliens who re-cross the
border illegally after having been removed once should not be rewarded
with benefits that the United States is not obliged to offer them. See
R-S-C, 869 F.3d at 1179 &
[[Page 69649]]
n.2; H.R. Rep. No. 104-469, pt. 1, at 155 (1996) (``[T]he ability to
cross into the United States over and over with no consequences
undermines the credibility of our efforts to secure the border.'');
H.R. Rep. No. 104-469, pt. 1, 113 (``One seemingly intractable problem
is repeat border-crossings.'').
The existing statutory bar for reinstated removal orders and the
proposed bar for aliens convicted of illegal reentry after being
previously removed are not coterminous because not all persons with a
conviction under section 276 of the INA, 8 U.S.C. 1326, have orders of
removal reinstated. See Lara-Aguilar v. Sessions, 889 F.3d 134, 144
(4th Cir. 2018) (reinstatement of a prior removal order is neither
automatic nor obligatory). Furthermore, not all persons with reinstated
removal orders have been convicted under section 276 of the INA, 8
U.S.C 1326. However, the Departments believe that similar policy
considerations support the barring of aliens convicted of illegal
reentry under section 276 of the INA, 8 U.S.C. 1326, from eligibility
for asylum.
Furthermore, although this proposed bar would render ineligible for
asylum an alien whose threat of persecution arose after the initial
removal and illegal reentry, such an alien could still seek other forms
of protection, such as statutory withholding of removal and withholding
or deferral of removal under the regulations implementing the CAT. The
proposed rule is consistent, therefore, with U.S. treaty obligations
under the Refugee Protocol (which incorporates Articles 2 through 34 of
the Refugee Convention) and the CAT. U.S. asylum law implements Article
34 of the Refugee Convention, concerning assimilation of refugees,
which is precatory and not mandatory. See Cardoza-Fonseca, 480 U.S. at
441. In accordance with the non-mandatory nature of Article 34, the
asylum statute, INA 208, 8 U.S.C. 1158, was drawn to be discretionary;
it does not require asylum to be granted to all refugees. Id. For the
reasons outlined above, limitations like the ones proposed here do not
violate Article 34. See Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at
1188; Mejia, 866 F.3d at 588; Cazun , 856 F.3d at 257 & n.16; Ramirez-
Mejia, 813 F.3d at 241. In contrast, the United States' non-refoulement
obligations under Article 33(1) of the Refugee Convention and Article 3
of the CAT are mandatory to the extent provided by domestic law. They
are implemented by statutory withholding of removal, a mandatory
provision, and withholding or deferral of removal under the CAT
regulations. Because the new limitations adopted here do not affect the
availability of statutory withholding of removal, INA 241(b)(3)(A), 8
U.S.C. 1231(b)(3)(A), or protection under the regulations implementing
the CAT, 8 CFR 1208.16(c) through 1208.18, the rule does not affect
U.S. compliance with its obligations under Article 33(1) of the Refugee
Convention or Article 3 of the CAT. See R-S-C, 869 F.3d at 1188 n.11;
Cazun, 856 F.3d at 257; Ramirez-Mejia, 813 F.3d at 241.
Moreover, in rejecting any argument that the Refugee Convention and
Refugee Protocol require that the U.S. must grant asylum to anyone who
qualifies as a ``refugee,'' the Departments note that the Refugee
Convention and Refugee Protocol are not self-executing. Rather,
Congress implemented relevant U.S. obligations under the Refugee
Protocol through the Refugee Act. Matter of D-J-, 23 I&N Dec. 572, 584
n.8 (A.G. 2003). The Refugee Act made asylum discretionary, meaning
that Congress did not consider it obligatory to grant asylum to every
refugee who qualifies. Public Law 96-212, sec. 208(a), 94 Stat. 102.
Moreover, as noted earlier in footnote 3, courts have rejected
arguments that other provisions of the Refugee Convention require every
refugee to receive asylum. Courts have held, in the context of
upholding the bar on eligibility for asylum in reinstatement
proceedings under section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5),
that limiting the ability to apply for asylum does not constitute a
prohibited ``penalty'' under Article 31(1) of the Refugee Convention.
Mejia, 866 F.3d at 588; Cazun, 856 F.3d at 257 n.16. Courts have also
rejected the argument that Article 28 of the Refugee Convention,
governing issuance of international travel documents for refugees
``lawfully staying'' in a country's territory, mandates that every
person who might qualify for withholding must also be granted asylum.
Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 1188. Thus, the Attorney
General may render aliens ineligible for asylum if they enter illegally
and are then convicted of unlawfully entering the country, and still
remain faithful to U.S. obligations under the Refugee Protocol.
4. Federal, State, Tribal, or Local Convictions for Offenses Involving
Criminal Street Gangs
The Departments are proposing to bar from asylum all those who are
convicted of a crime involving criminal street gangs, regardless of
whether that crime qualifies as a felony or as a misdemeanor. One
approach the Attorney General and the Secretary are considering is to
exercise their discretionary authority under sections 208(b)(2)(B)(ii)
and (C) of the INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C), to exclude
individuals convicted of federal, state, tribal, or local crimes
committed in support, promotion, or furtherance of a criminal street
gang as that term is defined in the convicting jurisdiction or under 18
U.S.C. 521(a). Specifically, the proposed rule would cover individuals
convicted of federal, state, tribal, or local crimes in cases in which
the adjudicator knows or has reason to believe the crime was committed
in furtherance of criminal street gang activity.\6\ The ``reason to
believe'' standard is used elsewhere in the INA, see 8 U.S.C.
1182(a)(2)(C), and would allow for consideration of all reliable
evidence, including any penalty enhancements, to determine whether the
crime was committed for or related to criminal gang activities, see
Garces v. U.S. Att'y Gen., 611 F.3d 1337, 1350 (11th Cir. 2010); Matter
of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977). In addition, the
Departments have concluded that it is appropriate to allow the
adjudicator to determine whether a crime was in fact committed ``in
furtherance'' of gang-related activity. The states, as noted above,
have enacted numerous laws that address gang-related crimes, but they
have not enacted a uniform definition of what constitutes activity
taken ``in furtherance'' of a gang-related crime. It thus appropriately
falls to immigration judges in the first instance to determine whether
a person committed the type of crime that warrants withholding of the
benefit of legal presence in our communities. Moreover, to the extent
that allowing the adjudicator to undertake such an inquiry might raise
concerns about inconsistent application of the proposed bar, the
Departments note that the Board is capable of
[[Page 69650]]
ensuring a uniform approach to the gang-related crimes inquiry. See,
e.g., 8 CFR 1003.1(e)(6)(i) (allowing for referral of cases to a three-
member panel of the Board ``to settle inconsistencies among the rulings
of different immigration judges'').
---------------------------------------------------------------------------
\6\ California enacted the first major anti-gang legislation in
the country in 1988. See Cal. Penal. Code 186.22(a) (establishing a
substantive criminal offense for ``[a]ny person who actively
participates in any criminal street gang with knowledge that its
members engage in, or have engaged in, a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang''). In the years
since, 49 states, the District of Columbia, and the Federal
Government have enacted legislation that provides for penalties
(including sentence enhancements, fines, or damages) for gang-
related criminal activity. National Gang Center, Highlights of Gang-
Related Legislation (Dec. 31, 2018), https://www.nationalgangcenter.gov/Legislation/Highlights (last visited June
3, 2019); see also, e.g., 18 U.S.C. 521 (providing a 10-year
sentence enhancement for certain convictions regarding criminal
street gang activity); Idaho Code Ann. 18-8503; Iowa Code Ann.
723A.2; Kan. Stat. Ann. 21-6314; La. Rev. Stat. 1403; Minn. Stat.
Ann. 609.229; Mo. Rev. Stat. 578.423; Mont. Code Ann. 45-8-405; N.C.
Gen. Stat. 14-50.17; Ohio Rev. Code Ann. 2923.42; Tenn. Code Ann.
40-35-121; Utah Code Ann. 76-9-903.
---------------------------------------------------------------------------
Some of the relevant criminal street gang-related offenses may
already constitute aggravated felonies, such that aliens convicted of
such offenses would already be ineligible for asylum. The most common
criminal street gang crimes ``are street-level drug trafficking,
assault, threats and intimidation, robbery, and large-scale drug
trafficking.'' National Gang Intelligence Center, 2015 National Gang
Report 12 (2015). Many convictions for such offenses could qualify as
aggravated felonies. See, e.g., 8 U.S.C. 1101(a)(43)(B) (defining drug
trafficking crimes as aggravated felonies); id. 1101(a)(43)(F)
(defining crimes of violence punishable by at least one year in prison
as aggravated felonies).
Regardless, criminal street gang-related offenses--whether felonies
or misdemeanors--could reasonably be designated as ``particularly
serious crimes'' pursuant to 8 U.S.C. 1158(b)(2)(B)(ii). All criminal
street gang-related offenses appear to be particularly serious because
they are strong indicators of recidivism and ongoing, organized
criminality within a community, thus implying that aliens who commit
such crimes are likely to pose an ongoing danger to that community. For
example, research suggests that criminal street gang members are
responsible for 48 percent of violent crime in most U.S. jurisdictions.
See National Gang Intelligence Center, National Gang Threat Assessment
15 (2011). Criminal street gang members are also more likely than
nonmembers to be involved in selling drugs. See Dana Peterson, et al.,
Gang Membership and Violent Victimization 21 Just. Q. 793, 798 (2004).
And the Federal Bureau of Investigation reports that more than 96
criminal street gangs conduct cross-border crimes such as cross-border
drug trafficking. National Gang Intelligence Center, 2015 National Gang
Report 9-10 (2015); see also J.C. Barnes et al., Estimating the Effect
of Gang Membership on Nonviolent and Violent Delinquency: A
Counterfactual Analysis, 36 Aggressive Behav. 437, 438 (2010) (studying
the link between gang membership and crime, and reporting that gang
members account for 86 percent of all ``serious delinquent acts''). In
light of this well-documented link between gang membership and a range
of crimes, the Departments believe that aliens who enter the United
States and proceed to be convicted of crimes involving criminal street
gang-related activity should be deemed to have committed particularly
serious crimes that render them ineligible for asylum.
Further, some of the crimes in which gangs frequently engage--such
as drug trafficking--are similar to the kinds of crimes that Congress
has already classified as aggravated felonies. See, e.g., 8 U.S.C.
1101(a)(43)(B) (defining aggravated felonies to include ``illicit
trafficking in a controlled substance''). This classification reflects
a congressional determination that such crimes pose a danger to the
community, see 8 U.S.C. 1158(b)(2)(A)(ii), (b)(2)(B)(i), such that
aliens involved in similar, gang-related crimes are also likely to pose
a danger to the community. Indeed, the perpetrators of crimes that
further gang activity are, by the very nature of the acts they commit,
displaying a disregard for basic societal structures in preference of
criminal activities that place other members of the community--even
other gang members--in danger. Existing law in some cases thus already
treats gang-related offenders more harshly than other offenders, see,
e.g., U.S. Sentencing Guidelines Manual Sec. 5K2.18 (U.S. Sentencing
Comm'n 2018) (allowing for upward departures ``to enhance the sentences
of defendants who participate in groups, clubs, organizations, or
associations that use violence to further their ends''), thereby
confirming that these offenders are more likely to be dangerous to the
community.
Moreover, even if 8 U.S.C. 1158(b)(2)(B)(ii) did not authorize the
proposed bar, the Attorney General and the Secretary would propose
designating criminal gang-related offenses as disqualifying under 8
U.S.C. 1158(b)(2)(C). Criminal gangs of all types--including local,
regional, or national street gangs; outlaw motorcycle gangs; and prison
gangs--are a significant threat to the security and safety of the
American public. See, e.g., National Gang Intelligence Center, 2015
National Gang Report 8 (2015) (explaining that ``each gang type poses a
unique threat to the nation''). Transnational organized crime has also
expanded in size, scope, and impact over the past several years.\7\ In
Executive Order 13773, Enforcing Federal Law With Respect to
Transnational Criminal Organizations and Preventing International
Trafficking, 82 FR 10691 (Feb. 9, 2017), the President emphasized the
scourge of transnational criminal organizations and directed federal
agencies to ``pursue and support additional efforts to prevent the
operational success of transnational criminal organizations and
subsidiary organizations within and beyond the United States.'' Aliens
involved in gang-related criminal activity accordingly represent a
threat to the safety and security of the United States, and barring
aliens convicted of such activity from receiving the discretionary
benefit of asylum is ``consistent with'' the asylum statute's current
provisions specifying that aliens posing such a threat are not eligible
for asylum. See 8 U.S.C. 1158(b)(2)(A)(ii), (iv).
---------------------------------------------------------------------------
\7\ Office of the Dir. Of Nat'l Intelligence, Transnational
Organized Crime, https://www.dni.gov/files/documents/NIC_toc_foldout.pdf.
---------------------------------------------------------------------------
Finally, the Departments solicit public comments on:
(1) What should be considered a sufficient link between an alien's
underlying conviction and the gang-related activity in order to trigger
the application of the proposed bar; and
(2) any other regulatory approaches to defining the type of gang-
related activities that should render aliens ineligible for asylum.
5. Convictions for Offenses Involving Driving While Intoxicated or
Impaired
The Attorney General and Secretary further propose that, pursuant
to their authorities under 8 U.S.C. 1158(b)(2)(B)(ii) and (C), aliens
convicted under federal, state, tribal, or local law of certain
offenses involving driving while intoxicated or impaired (also known as
driving under the influence (``DUI'')) should be ineligible for asylum.
Specifically, aliens should be ineligible for asylum if they are
convicted under federal, state, tribal, or local law of a second or
subsequent offense of driving while intoxicated or impaired, or for a
single such offense resulting in death or serious bodily injury.
Whether a conviction involves driving while intoxicated or impaired
would depend on the definition that the jurisdiction of conviction
gives those terms. Such convictions would be disqualifying regardless
of whether they constituted felonies or misdemeanors in the
jurisdiction of conviction.
An alien convicted of DUI may remain eligible for asylum under
current law, even when it is an alien's second or subsequent such
conviction or when the DUI offense results in death or serious injury.
Not all DUI offenses constitute aggravated felonies within the meaning
of section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), and thus these
offenses may not automatically constitute ``particularly serious
crimes'' for purposes of 8 U.S.C. 1158(b)(2)(B)(i).
[[Page 69651]]
Cf. Leocal v. Ashcroft, 543 U.S. 1, 13 (2004) (noting that DUI offenses
in states whose relevant statutes ``do not require any mental state''
are not aggravated felony crimes of violence). However, the Board in
the withholding of removal context has concluded that a number of DUI-
related offenses involving death or serious injury constitute
particularly serious crimes, and courts have upheld those
determinations. See, e.g., Avendano-Hernandez v. Lynch, 800 F.3d 1072,
1076, 1076-78 (9th Cir. 2015) (affirming the Board's determination that
a felony DUI conviction involving injury to another was a particularly
serious crime for purposes of withholding of removal given the
inherently dangerous nature of the offense, even though the alien was
sentenced to less than one year's imprisonment); Anaya-Ortiz v. Holder,
594 F.3d 673, 675, 679-80 (9th Cir. 2010) (the Board applied the
correct standard to conclude that an alien's actions in crashing ``into
a house while driving drunk . . . [and] caus[ing] part of the house's
sheetrock wall to collapse on an elderly woman who lived inside''
constituted a particularly serious crime); Ursu v. INS, 20 F. App'x
702, 705 (9th Cir. 2001) (upholding the Board's conclusion that a
specific DUI offense was a particularly serious crime for withholding
purposes because the alien ``caused the death of another human being''
while severely impaired). These holdings indicate that DUI offenses
often have grave consequences, thus supporting a conclusion that they
can reasonably be considered ``particularly serious'' for purposes of
asylum eligibility. DUI laws exist, in part, to protect unknowing
persons who are transiting through their communities from the dangerous
persons who choose to willingly disregard common knowledge that their
criminal acts endanger others.
As noted above, however, existing law does not clearly or
categorically limit asylum eligibility for aliens convicted of serious
DUI offenses, including those resulting in death or serious bodily
injury. Establishing such a bar would be consistent with the Attorney
General and the Secretary's statutory authority to designate by
regulation ``particularly serious crimes'' that constitute a danger to
the community and, thus, render aliens ineligible for asylum. INA
208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii);
Delgado, 648 F.3d at 1105-06; Gao, 595 F.3d at 555-56; see also Matter
of Carballe, 19 I&N Dec. 357, 360 (BIA 1986) (an alien convicted of a
particularly serious crime constitutes a danger to the community of the
United States). The Fifth Circuit has noted that ``the very nature of
the crime of [driving while intoxicated] presents a `serious risk of
physical injury' to others.'' United States v. DeSantiago-Gonzalez, 207
F.3d 261, 264 (5th Cir. 2000). These decisions in the withholding
context underscore that DUI offenses involving serious bodily harm or
death are routinely deemed ``particularly serious crimes'' in that
context, and section 101(h)(3) of the INA, 8 U.S.C. 1101(h)(3),
classifies driving under the influence as a ``serious criminal
offense'' for purposes of the ground of inadmissibility at section
1182(a)(2)(E). Classifying DUI offenses that involve serious bodily
harm or death as particularly serious crimes as a categorical matter
would be reasonable given that all such offenses by definition involve
a serious danger to the community. Likewise, categorically classifying
repeat DUI offenses as particularly serious crimes would be a
reasonable exercise of the Attorney General and the Secretary's
discretion to designate particularly serious crimes because repeat
offenders have already exhibited disregard for the safety of others as
well as a likelihood of continuing to engage in extremely dangerous
conduct.
Even if some of the proposed DUI-related bars could not be
characterized as ``particularly serious crimes'' for purposes of
section 1158(b)(2)(B)(ii), such bars would be within the Attorney
General and the Secretary's authority to establish under 8 U.S.C.
1158(b)(2)(C). As the Supreme Court has recognized, ``[d]runk driving
is an extremely dangerous crime'' as a general matter. Begay v. United
States, 553 U.S. 137, 141 (2008), abrogated on other grounds by Johnson
v. United States, 135 S. Ct. 2551 (2015). It takes ``a grisly toll on
the Nation's roads, claiming thousands of lives, injuring many more
victims, and inflicting billions of dollars in property damage every
year.'' Birchfield v. North Dakota, 136 S. Ct. 2160, 2166 (2016); see
also Marmolejo-Campos v. Holder, 558 F.3d 903, 913 (9th Cir. 2009)
(noting that ``the dangers of drunk driving are well established'').
Furthermore, federal courts have upheld the Board's determination that
even if a particular DUI-related offense does not qualify as a
``particularly serious crime,'' such a conviction warrants a
discretionary denial of asylum. See, e.g., Kouljinski v. Keisler, 505
F.3d 534, 543 (6th Cir. 2007) (holding that, regardless of whether
driving under the influence of alcohol is a ``particularly serious
crime,'' the immigration judge ``did not abuse his discretion in this
case by basing his discretionary denial of asylum on [the petitioner's]
three drunk-driving convictions''). These cases are consistent with the
notion that the Attorney General and Secretary could, in their
discretion, identify a subset of DUI convictions reflecting
particularly dangerous conduct as grounds to deny eligibility for
asylum.
6. Domestic Assault or Battery, Stalking, or Child Abuse
Relying on the authority under section 208(b)(2)(B)(ii) of the INA,
the proposed regulation would also render aliens convicted of federal,
state, tribal, or local offenses involving conduct amounting to
domestic assault or battery, stalking, or child abuse in the domestic
context ineligible for asylum, irrespective of whether those offenses
qualify as felonies or misdemeanors. Relying solely on the Attorney
General and the Secretary's authority under section 208(b)(2)(C) of the
INA, the regulation would also render ineligible aliens who engaged in
acts of battery and extreme cruelty in a domestic context in the United
States, regardless of whether such conduct resulted in a criminal
conviction. Notably, the asylum statute already contemplates that
individuals who engage in certain harmful behavior will be ineligible,
regardless of whether that behavior resulted in a conviction. 8 U.S.C.
1158(b)(2)(A)(i), (iii)-(v). Finally, the proposed regulation would
except from the ineligibility bar aliens who have been battered or
subjected to extreme cruelty and who were not the primary perpetrators
of violence in their relationships.
Some of the offenses described above may already render an alien
ineligible for asylum, to the extent that a particular conviction
qualifies as an aggravated felony. For instance, aggravated felonies
encompass ``murder, rape, or sexual abuse of a minor,'' 8 U.S.C.
1101(a)(43)(A), as well as any ``crime of violence . . . for which the
term of imprisonment [is] at least one year,'' id. 1101(a)(43)(F).
Convictions for such offenses automatically constitute ``particularly
serious crimes'' for purposes of 8 U.S.C. 1158(b)(2)(A)(ii). See 8
U.S.C. 1158(b)(2)(B)(i). But, as noted, due to the application of the
categorical approach, many state convictions that involve sexual abuse
or domestic violence-related offenses may not qualify as aggravated
felonies. E.g., Larios-Reyes, 843 F.3d at 149-50 (alien's conviction
under Maryland law for sexual abuse of a victim under the age of 14 did
not amount to the aggravated felony of ``sexual abuse of a minor'');
Ortega-Mendez v. Gonzales, 450 F.3d
[[Page 69652]]
1010, 1021 (9th Cir. 2006) (holding that a conviction for battery under
California Penal Code section 242 is not a ``crime of violence'' within
the meaning of 18 U.S.C. 16(a) and thus is not a ``crime of domestic
violence'' within the meaning of 8 U.S.C. 1227(a)(2)(E)(i)); Tokatly v.
Ashcroft, 371 F.3d 613, 624 (9th Cir. 2004) (``Applying Taylor, a court
may not look beyond the record of conviction to determine whether an
alien's crime was one of `violence,' or whether the violence was
`domestic' within the meaning of the provision.'').
The Board has routinely deemed some of the identified domestic
violence offenses as particularly serious crimes, and many of those
decisions have been upheld on appeal. See Pervez v. Holder, 546 F.
App'x 157, 159 (4th Cir. 2013) (attempted indecent liberties with a
child constituted a particularly serious crime even where ``no child
was actually harmed''); Lara-Perez v. Holder, 517 F. App'x 255 (5th
Cir. 2013) (lewd and lascivious acts with a child constituted
particularly serious crime); Uzoka v. Att'y Gen., 489 F. App'x 595 (3d
Cir. 2012) (endangering welfare of a child constituted a particularly
serious crime); Sosa v. Holder, 457 F. App'x 691 (9th Cir. 2011)
(willful infliction of corporal injury on a spouse or cohabitant
constituted a particularly serious crime); Hernandez-Vasquez v. Holder,
430 F. App'x 448 (6th Cir. 2011) (child endangerment constituted a
particularly serious crime); Matter of Singh, 25 I&N Dec. 670, 670 (BIA
2012) (stalking offense constituted a crime of violence). But the
Board's case-by-case assessment of each domestic violence conviction
does not cover all of the offenses identified above, and it would not
cover domestic violence that does not result in a conviction, as the
proposed rule would.
The Attorney General and the Secretary propose classifying domestic
violence convictions as particularly serious crimes under section
208(b)(2)(B)(ii) of the INA, 8 U.S.C. 1158(b)(2)(B)(ii), because
violent conduct, or conduct creating a substantial risk of violence
against the person, generally constitutes a particularly serious
offense rendering an alien ineligible for asylum or withholding of
removal. Matter of E-A-, 26 I&N Dec. 1, 9 n.3 (BIA 2012) (a ``serious''
crime involves ``a substantial risk of violence and harm to persons'');
Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982) (``Crimes against
persons are more likely to be categorized as `particularly serious
crimes.' '').
Even if all of the proposed domestic violence offenses would not
qualify as particularly serious crimes, convictions for such offenses--
as well as engaging in conduct involving domestic violence that does
not result in a conviction--should be a basis for ineligibility for
asylum under section 208(b)(2)(C) of the INA. Domestic violence is
particularly reprehensible because the perpetrator takes advantage of
an ``especially vulnerable'' victim. Carrillo v. Holder, 781 F.3d 1155,
1159 (9th Cir. 2015). Congress enacted grounds for removability for
domestic violence offenses because ``[w]hen someone is an alien and has
already shown a predisposition toward violence against women and
children, we should get rid of them the first time.'' See 142 Cong.
Rec. S4058-02, S4059 (daily ed. Apr. 24, 1996) (statement of Senator
Dole on his amendment adding grounds for removability under subsection
(E) to 8 U.S.C. 1227(a)(2)). Congress included stalking within the same
statutory provision as domestic violence offenses that make an alien
subject to removal because it is a ``vicious act:'' ``Of all the women
killed in the United States by husbands or boyfriends, 90 percent were
stalked before being murdered.'' Id. In addition, ``[s]talking behavior
often leads to violence which may result in the serious injury or death
of stalking victims.'' Id. Congress also included child abuse within
the same statutory provision as domestic violence offenses, noting that
child abuse includes a range of serious maltreatment, such as
negligence, physical abuse, sexual abuse, emotional abuse, and medical
negligence. See id. (statement of Senator Coverdale). ``[American]
society will not tolerate crimes against women and children.'' Id.
(statement of Senator Dole on his amendment to add subsection (E) to 8
U.S.C. 1227(a)(2)). The same rationale should render aliens who commit
domestic violence in the United States ineligible for the discretionary
benefit of asylum. Denying asylum eligibility to an alien who has
engaged in domestic violence accords with the aim of ``send[ing] a
message that we will protect our citizens against [domestic] assaults''
committed by aliens. Id.
The portions of the proposed regulation that require a conviction
would permit the adjudicator to assess all reliable evidence in order
to determine whether that conviction amounts to a domestic violence
offense. In limited circumstances, a similar type of analysis already
occurs in the removal context. Although the ground of removability at 8
U.S.C. 1227(a)(2)(E)(ii)--which applies to individuals who violate
certain portions of a protective order--does not require a criminal
conviction, it does require a judicial order. See Garcia-Hernandez v.
Boente, 847 F.3d 869, 872 (7th Cir. 2017) (``The text of [8 U.S.C.
1227(a)(2)](E)(ii) does not depend on a criminal conviction but on what
a court `determines' about the alien's conduct.''). That ground of
removability requires the immigration judge to consider ``the probative
and reliable evidence regarding what a State court has determined about
the alien's violation [of a protective order].'' Matter of Medina-
Jimenez, 27 I&N Dec. 399, 401 (BIA 2018). And, under 8 U.S.C.
1227(a)(2)(E)(i), which requires a conviction, the immigration judge
may still apply a circumstance-specific approach to determine whether
the ``domestic relationship component'' of that removability ground is
met. Hernandez-Zavala v. Lynch, 806 F.3d 259, 266-67 (4th Cir. 2015);
Matter of Estrada, 26 I&N Dec. 749, 752-53 (BIA 2016) (``[T]he
circumstance-specific approach is properly applied in analyzing the
domestic nature of a conviction to determine if it is for a crime of
domestic violence.''). Because some states may not have separate
offenses for the different types of conduct recognized in federal law
as domestic violence offenses, relying on such a factual inquiry would
``clos[e] the . . . loopholes'' where aliens might otherwise escape the
immigration consequences due to the vagaries of states' laws. 142 Cong.
Rec. S4058-02, S4059 (statement of Senator Dole).
For similar reasons, the portions of the proposed rule at 8 CFR
208.13(c)(6)(vii) and 1208.13(c)(6)(vii), which would not require a
conviction to trigger ineligibility, allow the adjudicator to consider
what conduct the alien engaged in to determine if the conduct amounts
to a covered act of battery or extreme cruelty. There is precedent for
such a conduct-specific inquiry in the asylum statute, see INA
208(b)(2)(A)(i), 8 U.S.C. 1158(b)(2)(A)(i), as well as in the
removability context, see INA 237(a)(1)(E), 8 U.S.C. 1227(a)(1)(E); see
also Meng v. Holder, 770 F.3d 1071, 1076 (2d Cir. 2014) (reviewing the
record evidence to determine whether it supported the agency's finding
that the applicant's conduct triggered section 1158(b)(2)(A)(i)'s
persecutor bar); Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th
Cir. 2011) (explaining that a factual admission may be sufficient to
satisfy the Government's burden of demonstrating removability under
section 1227(a)(1)(E)(i)). Moreover, this conduct-specific inquiry is
materially similar to the inquiry already undertaken in situations in
which an
[[Page 69653]]
alien seeks to obtain immigration benefits based on domestic violence
actions that do not necessarily result in a conviction. See, e.g., 8
U.S.C. 1229b(b)(2)(A); 8 CFR 204.2(c)(1)(i)(E), (c)(1)(vi), (c)(2)(iv),
(e)(1)(i)(E), (e)(1)(vi), and (e)(2)(iv).
Finally, the proposed regulation would exempt from the
ineligibility bar aliens who have been battered or subjected to extreme
cruelty and who were not the primary perpetrators of violence in their
relationships. These aliens are generally described in section
237(a)(7)(A) of the INA, 8 U.S.C. 1227(a)(7)(A), which provides a
waiver of the domestic violence and stalking removability ground when
it is determined that the alien (1) was acting in self-defense; (2) was
found to have violated a protection order intended to protect the
alien; or (3) committed, was arrested for, was convicted of, or pled
guilty to committing a crime that did not result in serious bodily
injury and where there was a connection between the crime and the
alien's having been battered or subjected to extreme cruelty. Although
section 237(a)(7)(A) of the INA, 8 U.S.C. 1227(a)(7)(A), excepts such
aliens from removability only if they are granted a discretionary
waiver, the proposed rule would except all aliens who satisfy the above
criteria from the proposed asylum bar. Asylum officers or immigration
judges could thus make factual determinations regarding whether an
alien fit into this category, making the exception more administrable
and uniform in the asylum context. The Departments believe that this
exception would provide important protections for domestic violence
victims.
7. Convictions for Certain Misdemeanor Offenses
The proposed regulation would also make certain misdemeanor
offenses bars to asylum based on the authority to create new grounds
for ineligibility in section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C). Other provisions of the INA render aliens ineligible for
other benefits based on convictions for certain misdemeanors. See,
e.g., INA 244(c)(2)(B)(i), 8 U.S.C. 1254a(c)(2)(B)(i) (barring aliens
from eligibility for temporary protected status if they have been
convicted of two or more misdemeanors in the United States). The
proposed rule would designate offenses involving the use of fraudulent
documents, the receipt of public benefits under false pretenses, or the
possession or trafficking of drugs as disqualifying for purposes of
asylum, even if such offenses are misdemeanors rather than felonies.
The proposed regulation would define a misdemeanor in this context as a
crime defined as a misdemeanor by the jurisdiction of conviction, or
that involves a potential penalty of one year or less in prison.
Convictions for such misdemeanor offenses should be disqualifying
because these offenses inherently undermine public safety or Government
integrity.
The Departments also seek public comment on whether (and, if so,
how) to differentiate among misdemeanor convictions that should warrant
designation as grounds for ineligibility for asylum. Are there any
additional misdemeanor convictions that should be bars to asylum
eligibility? Conversely, should any of the below proposed misdemeanor
bars be eliminated?
a. Fraudulent Document Offenses
The Departments propose to make aliens ineligible for asylum when
they are convicted of a federal, state, tribal, or local misdemeanor
for the possession or use, without lawful authority, of an
identification document, authentication feature, or false
identification document as defined in 18 U.S.C. 1028(d). Aliens
convicted of falsifying passports or other identity documents where the
term of imprisonment is at least a year are already ineligible for
asylum (unless the conduct was a first-time offense for purposes of
aiding a specified family member) because such conduct constitutes an
aggravated felony under 8 U.S.C. 1101(a)(43)(P). Other felonies
relating to fraudulent document offenses would be encompassed within
the proposed eligibility bar for felony convictions.
The Attorney General and the Secretary believe that fraudulent
document offenses pose such a significant affront to government
integrity that even misdemeanor fraudulent document offenses should
disqualify aliens from eligibility for asylum. Proper identity
documentation is critical in the immigration context. See Noriega-Perez
v. United States, 179 F.3d 1166, 1173-74 (9th Cir. 1999). Furthermore,
as Congress acknowledged when it passed the REAL ID Act of 2005, Public
Law 109-13, preserving the integrity of identity documents is critical
for general national security and public safety reasons. The United
States has taken concrete steps to protect all Government-issued
identification documents by making the process to obtain identification
documents more rigorous. See, e.g., H.R. Rep. No. 109-72, at 179 (2005)
(Conf. Rep.) (explaining that the REAL ID Act was passed in part to
``correct the chronic weakness among many of the states in the
verification of identity'' for the purpose of issuing Government
identification documents).
The use of fraudulent documents, especially involving the
appropriation of someone else's identity, so strongly undermines
government integrity that it would be inappropriate to allow an
individual convicted of such an offense to obtain the discretionary
benefit of asylum.
Despite the concerns articulated above, the proposed rule would
provide an exception for the bar to asylum based on convictions for use
or misuse of identification documents if the alien can show that the
document was presented before boarding a common carrier for the purpose
of coming to the United States, that the document relates to the
alien's eligibility to enter the United States, that the alien used the
document to depart a country in which the alien has claimed a fear of
persecution, and that the alien claimed a fear of persecution without
delay upon presenting himself or herself to an immigration officer upon
arrival at a United States port of entry. This exception is consistent
with distinctions regarding certain document-related offenses made in
Matter of Pula, 19 I&N Dec. at 474-75, existing statutes, see INA
274C(a)(6) and (d)(7), 8 U.S.C. 1324c(a)(6) and (d)(7), and existing
regulations, see 8 CFR 270.2(j) and 1270.2(j); see also Matter of
Kasinga, 21 I&N Dec. 357, 368 (BIA 1996) (use of fraudulent passport to
come to the United States was not a significant adverse factor where,
upon arrival, applicant told the immigration inspector the truth).
Other than this exception, aliens seeking to enter, remain, obtain
employment, or obtain benefits and services who are convicted of using
false or fraudulent documents should not be eligible for asylum.
b. Public Benefits Offenses
Many aliens are legally entitled to receive certain categories of
federal public benefits. 8 U.S.C. 1611, 1641. The unlawful receipt of
public benefits, however, burdens taxpayers and drains a system
intended to assist lawful beneficiaries. The inherently pernicious
nature of such conduct has previously led the Government to prioritize
enforcement of the immigration laws against such offenders, see
Enhancing Public Safety in the Interior of the United States, Exec.
Order No. 13768, 82 FR 8799 (Jan. 25, 2017), and this pernicious
conduct warrants the use of the Attorney General and the Secretary's
authority to bar convicted individuals
[[Page 69654]]
from receiving the discretionary benefit of asylum.\8\
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\8\ In Fiscal Year (``FY'') 2017, approximately 20 percent of
Government benefits fraud offenders at the federal level were not
U.S. citizens. See U.S. Sentencing Comm'n, Quick Facts, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Government_Benefits_Fraud_FY17.pdf.
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c. Controlled Substances Offenses
Relying on the authority in section 208(b)(2)(C) of the INA, 8
U.S.C. 1158(b)(2)(C), the Departments propose to make aliens ineligible
for asylum when they are convicted of a federal, state, tribal, or
local misdemeanor involving controlled-substances offenses.
Specifically, the Departments propose that a conviction for possession
or trafficking of a controlled substance or controlled-substance
paraphernalia, other than a single offense involving possession for
one's own use of 30 grams or less of marijuana, should disqualify an
alien from eligibility for asylum.
Aliens who violate controlled substance laws may be removable, see
INA 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 8 U.S.C.
1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i), and they would already be
barred from receiving asylum to the extent a controlled-substance
offense constitutes an aggravated felony, see INA 208(b)(2)(B)(i), 8
U.S.C. 1158(b)(2)(B)(i); see also INA 101(a)(43)(B), 8 U.S.C.
1101(a)(43)(B); United States v. Valdivia-Flores, 876 F.3d 1201, 1206-
07 (9th Cir. 2017) (controlled-substances offenses are aggravated
felonies under the INA if they meet the definition of trafficking or
involve state analogues to federal trafficking offenses). Furthermore,
in cases that the courts of appeals have often upheld, the Board has
concluded that various controlled-substances offenses can constitute
particularly serious crimes even if they do not rise to the level of
aggravated felonies. See, e.g., Herrera-Davila v. Sessions, 725 F.
App'x 589, 590 (9th Cir. 2018) (the Board and immigration judge did not
err in determining that an immigrant's conviction for drug possession
constituted a particularly serious crime for both asylum and
withholding of removal); Vaskovska v. Lynch, 655 F. App'x 880, 884 (2d
Cir. 2016) (the Board did not err in determining that an alien's
conviction for drug possession was ``a particularly serious crime
rendering her ineligible for asylum and withholding of removal'');
Bertrand v. Holder, 448 F. App'x 744, 745 (9th Cir. 2011) (the Board
did not err in determining that an alien's conviction for selling
cannabis constituted a particularly serious crime for purposes of both
asylum and withholding of removal). Additionally, drug paraphernalia
possession can include certain equipment associated with the use,
manufacture, packaging, or sale of illegal drugs. See, e.g., 21 U.S.C.
863(d). Under the proposed eligibility bar for felonies, all felony
convictions relating to controlled substances would become a basis for
ineligibility for asylum.
The Departments further propose to implement a new bar for asylum
to include convictions for misdemeanors involving the trafficking or
possession of controlled substances. Both possessors and traffickers of
controlled substances pose a direct threat to the public health and
safety interests of the United States, and they should not be entitled
to the benefit of asylum. The harmful effects of controlled substance
offenses have been recognized consistently by policymakers and courts.
``[F]ar more people die from the misuse of opioids in the United States
each year than from road traffic accidents or violence.'' United
Nations Office on Drugs and Crime, World Drug Report: Executive
Summary, Conclusions, and Policy Implications 10 (2017). As Attorney
General Ashcroft previously recognized in an immigration opinion,
``[t]he harmful effect to society from drug offenses has consistently
been recognized by Congress in the clear distinctions and disparate
statutory treatment it has drawn between drug offenses and other
crimes.'' Matter of Y-L-, 23 I&N Dec. 270, 275 (A.G. 2002). He
concluded that the ``unfortunate situation'' of drug abuse and related
crime ``has reached epidemic proportions and . . . tears the very
fabric of American society.'' Id. The federal courts have agreed that
drug offenses are serious, and have noted that ``immigration laws
clearly reflect strong congressional policy against lenient treatment
of drug offenders.'' Ayala-Chavez v. U.S. INS, 944 F.2d 638 (9th Cir.
1991) (quoting Blackwood v. INS, 803 F.2d 1165, 1167 (11th Cir. 1988));
see also Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991); cf. Mason
v. Brooks, 862 F.2d 190, 194 (9th Cir. 1988) (``Congress has forcefully
expressed our national policy against persons who possess controlled
substances by enacting laws . . . to exclude them from the United
States if they are aliens.'').
For these reasons, the proposed bar on asylum eligibility is
consistent with the INA's current treatment of controlled-substance
offenses. Nevertheless, the Departments also propose a limited
exception to the proposed bar for convictions involving a single
offense involving possession for one's own use of 30 grams or less of
marijuana. That exception would be consistent with an existing
exception in the removability context: One who is convicted of a single
offense of simple possession of marijuana is not automatically
removable under the INA. See INA 237(a)(2)(B)(i), 8 U.S.C.
1227(a)(2)(B)(i). An alien with the same conviction would be
inadmissible, but has a statutory right to request a waiver, which the
Attorney General or the Secretary may grant in his or her discretion.
See INA 212(a)(2)(A)(i)(II), (h), 8 U.S.C. 1182(a)(2)(A)(i)(II), (h); 8
CFR 212.7(d) and 1212.7(d); see also INA 103(a), 8 U.S.C. 1103(a).
The Departments seek public comment on how to differentiate among
controlled substance offenses. Are there offenses that are currently
designated as a controlled substance offense in one or more relevant
jurisdictions in the United States that should not be categorical bars
to asylum eligibility? In addition to seeking public comment on whether
this proposed definition is over-inclusive, the Departments seek
comment on whether it might be under-inclusive: Are there crimes that
would not fall under this definition that should be made categorical
bars?
B. Clarifying the Effect of Criminal Convictions
The proposed regulations governing ineligibility for asylum would
also set forth criteria for determining whether a vacated, expunged, or
modified conviction or sentence should be recognized for purposes of
determining whether an alien is eligible for asylum. The proposed rule
would apply the same set of principles to federal, state, tribal, or
local convictions that are relevant to the eligibility bars described
above. The rule would not apply to convictions that exist prior to the
effective date of the proposed regulation. For convictions or sentences
imposed thereafter, the proposed rule would provide that (1) vacated or
expunged convictions, or modified convictions or sentences, remain
valid for purposes of ascertaining eligibility for asylum if courts
took such action for rehabilitative or immigration purposes; (2) an
immigration judge or other adjudicator may look to evidence other than
the order itself to determine whether the order was issued for
rehabilitative or immigration purposes; (3) the alien bears the burden
of establishing that the vacatur, expungement, or sentence modification
was not for rehabilitative or immigration purposes; (4) the alien must
further establish that the court had jurisdiction and authority to
alter the relevant order;
[[Page 69655]]
and (5) there exists a rebuttable presumption against the
effectiveness, for immigration purposes, of the order vacating,
expunging, or modifying a conviction or sentence if either (i) the
order was entered after the initiation of any removal proceeding; or
(ii) the alien moved for the order more than one year after the date of
the original order of conviction or sentencing. The rule would thus
ensure that aliens do not have their convictions vacated or modified
for purported rehabilitative purposes that are, in fact, for
immigration purposes.
The authority of the Attorney General and the Secretary to
promulgate this proposed rule derives from sections 208(b)(2)(B)(ii)
and (C) of the INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C). Prescribing the
effect to be given to vacated, expunged, or modified convictions or
sentences is an ancillary aspect of prescribing which criminal
convictions should constitute ``particularly serious crimes'' for
purposes of asylum ineligibility, as well as prescribing additional
limitations or conditions on asylum eligibility. Additionally, the
Attorney General possesses general authority under section 103(g)(2) of
the INA, 8 U.S.C. 1103(g)(2), to ``establish such regulations . . . as
the Attorney General determines to be necessary for carrying out this
section.'' See Tamenut, 521 F.3d at 1004 (describing section 1103(g)(2)
as ``a general grant of regulatory authority'').\9\ Similarly, Congress
has conferred upon the Secretary the authority to ``establish such
regulations . . . as he deems necessary for carrying out his authority
under the provisions of [the INA].'' INA 103(a)(1), (3), 8 U.S.C.
1103(a)(1), (3).
---------------------------------------------------------------------------
\9\ The Attorney General has previously exercised his
authorities to address related questions regarding what immigration
effect should be given to expunged convictions. For example, in
1959, Attorney General Rogers concluded that certain narcotics
convictions would survive subsequent expungement for purposes of the
immigration laws. Matter of A-F-, 8 I&N Dec. 429, 445-46 (A.G.
1959). More recently, Attorney General Ashcroft held that, in light
of the INA's definition of ``conviction,'' an alien whose firearms
conviction was expunged pursuant to section 1203.4 of the California
Penal Code remained ``convicted'' for immigration purposes. Matter
of Luviano-Rodriguez, 23 I&N Dec. 718, 718 (A.G. 2005).
---------------------------------------------------------------------------
First, regarding the immigration effect of expungements, vacaturs,
or sentence modifications, the rule would codify the principle set
forth in Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019),
that, if the underlying reason for the vacatur, expungement, or
modification was for ``rehabilitation or immigration hardship,'' the
conviction remains effective for immigration purposes. Id. at 680; see
also id. (distinguishing between convictions vacated on the basis of a
procedural or substantive defect in the underlying proceeding and those
vacated because of post-conviction events, such as rehabilitation or
immigration hardships); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)
(finding that a conviction remains valid for immigration purposes if
the conviction is vacated for reasons unrelated to the merits of the
underlying criminal proceedings), rev'd on other grounds by Pickering
v. Gonzales, 465 F.3d 263, 267-70 (6th Cir. 2006).
Courts of appeals have repeatedly accepted this principle. The
Second Circuit deemed it ``reasonable'' for the Board to conclude in
Pickering that convictions vacated for rehabilitative reasons are still
effective for purposes of immigration consequences. Saleh v. Gonzales,
495 F.3d 17, 24 (2d Cir. 2007). That interpretation is ``entirely
consistent with Congress's intent in enacting the 1996 amendments to
broaden the definition of conviction and advances the two purposes
earlier identified by the Board: It focuses on the original attachment
of guilt (which only a vacatur based on some procedural or substantive
defect would call into question) and imposes uniformity on the
enforcement of immigration laws.'' Id.; see also Pinho v. Gonzales, 432
F.3d 193, 215 (3d Cir. 2005) (applying Pickering to conclude that a
conviction was vacated ``based on a defect in the underlying criminal
proceedings,'' not for rehabilitative or immigration purposes); cf.
Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 120 (1983)
(accepting that Congress need not ``be bound by post-conviction state
actions . . . that vary widely from State to State and that provide
less than positive assurance that the person in question no longer
poses an unacceptable risk of dangerousness'').
For similar reasons, the rule would provide that court orders
modifying criminal sentences for rehabilitative purposes should also
have no effect on the alien's eligibility for asylum. See Matter of
Thomas and Thompson, 27 I&N Dec. at 680 (explaining that ``the
Pickering test should apply to state-court orders that modify, clarify,
or otherwise alter the term of imprisonment or sentence associated with
a state-court conviction'').
Second, to avoid gamesmanship and manipulation in the drafting of
orders vacating a conviction or modifying a criminal sentence, the
proposed regulations would allow an adjudicator to look beyond the face
of the order to determine whether it was issued for rehabilitative or
immigration purposes and to determine whether the other requirements of
proposed 8 CFR 208.13(c)(7)(v) and 1208.13(c)(7)(v) have been met,
notwithstanding the putative basis of the order on its face. This rule
is largely consistent with existing precedent. See Rodriguez v. U.S.
Att'y Gen., 844 F.3d 392, 396-97 (3d Cir. 2016) (applying this approach
and looking to court records absent a clear explanation for the basis
of the order in the order itself); see also Cruz v. Att'y Gen., 452
F.3d 240, 244, 248 (3d Cir. 2006) (holding that the Board could
reasonably determine that a conviction was vacated to avoid immigration
consequences where a state prosecutor's letter stipulating the terms of
a settlement agreement explicitly stated that the petitioner's
scheduled deportation was a reason for the state's support for vacating
the conviction).
Third, the proposed rule would clarify that the alien bears the
burden of establishing that the vacatur, expungement, or sentence
modification was not for rehabilitative or immigration purposes.
Therefore, if the record is inconclusive based on a standard of
preponderance of the evidence, the order should not be given effect for
immigration purposes. The burden of proof is on the alien because the
INA places the overall burden to establish asylum eligibility on the
alien. See INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); Marikasi v.
Lynch, 840 F.3d 281, 287 (6th Cir. 2016). Where there is evidence that
``one or more of the grounds for mandatory denial of the application
for relief may apply,'' the applicant bears the burden of establishing
that the bar at issue does not apply. 8 CFR 1240.8(d). Consistent with
this principle, in an analogous context, the Eighth Circuit has held
that, because the INA places the burden of proof on the alien to
establish eligibility for cancellation of removal, a form of
discretionary relief, the alien bears the burden to prove that he has
no disqualifying convictions, including the burden to show that the
vacatur of any disqualifying conviction was not for rehabilitative
purposes. Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir.
2016).\10\ This allocation of the
[[Page 69656]]
burden of proof makes sense because, as the Board and federal courts
have noted, an alien is in the ``best position'' to present evidence on
the issue. Id. at 950. The alien ``was a direct party to the criminal
proceeding leading to the vacation of his conviction and is therefore
in the best position to know why the conviction was vacated and to
offer evidence related to the record of conviction.'' Matter of Chavez-
Martinez, 24 I&N Dec. 272, 274 (BIA 2007); see also Rumierz v.
Gonzales, 456 F.3d 31, 39 (1st Cir. 2006) (outlining several other
reasons that placing the burden on the alien is rational, such as
similar burden allocations in the context of criminal law and habeas
petitions).
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\10\ In contrast, when DHS uses a criminal conviction to prove
deportability of an admitted alien, some courts have held that the
Government bears the burden of establishing that a subsequent
vacatur of that conviction should not be recognized because the
vacatur was granted for immigration purposes. See Nath v. Gonzales,
467 F.3d 1185, 1188-89 (9th Cir. 2006); Pickering, 465 F.3d at 268-
69 & n.4. Unlike applications for asylum and other forms of relief,
where the alien has the burden of proving eligibility, the
Government bears the burden of establishing that an admitted alien
is deportable by clear and convincing evidence. INA 240(c)(3)(A), 8
U.S.C. 1229a(c)(3)(A).
---------------------------------------------------------------------------
Fourth, the rule would provide that the alien must establish that
the court issuing an order vacating or expunging a conviction or
modifying a sentence had jurisdiction and authority to do so. This
requirement would be consistent with Board precedent, which provides
that facially valid orders can be disregarded based on a lack of
jurisdiction. See, e.g., Matter of F-, 8 I&N Dec. 251 (BIA 1959)
(``[T]he presumption of regularity and of jurisdiction [of a state
court order] may be overcome by extrinsic evidence or by the record
itself.''); cf. Adam v. Saenger, 303 U.S. 59, 62 (1938) (``If it
appears on its face to be a record of a court of general jurisdiction,
such jurisdiction over the cause and the parties is to be presumed
unless disproved by extrinsic evidence, or by the record itself. . . .
But in a suit upon the judgment of another state the jurisdiction of
the court which rendered it is open to judicial inquiry . . . and when
the matter of fact or law on which jurisdiction depends was not
litigated in the original suit it is a matter to be adjudicated in the
suit founded upon the judgment.'' (citations omitted)). In short, an
order purporting to vacate, expunge, or otherwise modify a conviction
or sentence is inoperative for purposes of immigration law if the state
court lacked jurisdiction over the subject matter or the parties to the
action.
Jurisdictional defects in court orders might arise in a number of
ways. For example, in United States v. Garza-Mendez, 735 F.3d 1284
(11th Cir. 2013), a criminal sentencing case, the Eleventh Circuit
refused to recognize a clarification order issued by a state judge
after the sentencing judge had ordered the defendant to serve 12 months
of confinement. The Eleventh Circuit rejected the ``subjective,
interpretive clarification order,'' noting that it was obtained from a
different judge, long after entry of the original sentence, for the
purpose of preventing enhancement of the defendant's sentence for
unlawful reentry in federal court. Id. at 1289; cf. Herrera v. U.S.
Att'y Gen., 811 F.3d 1298, 1299-1301 (11th Cir. 2016) (affirming a
Board decision declining to give effect to orders clarifying that
defendants were never sentenced to terms of confinement when the
original sentencing orders clearly stated to the contrary). A
jurisdictional defect could also arise where state law limits the
court's authority to grant post-conviction relief in certain ways, such
as by imposing a time limitation. See Matter of Estrada, 26 I&N Dec. at
756 (noting that section 17-10-1(f) of the Georgia Code Annotated
imposes strict time limits with respect to a sentencing court's ability
to change or ``modify'' a sentence).
Finally, the proposed rule creates a rebuttable presumption that
the order vacating or expunging the conviction or modifying the
sentence was issued for immigration purposes if either (1) the order
was entered after the initiation of any proceeding to remove the alien
from the United States; or (2) the alien moved for the order more than
one year after the date of the original order of conviction or
sentencing.
Precedents establish that the timing of such a process is relevant
to whether the resulting order should be recognized for immigration
purposes. The initiation of such a process after removal proceedings
have commenced naturally raises an inference that the resulting order
was issued for immigration or rehabilitative purposes. For instance, in
Andrade-Zamora, the Eighth Circuit refused to credit a state court's
vacatur of a conviction when the vacatur occurred two weeks after the
Government commenced removal proceedings based on the conviction, and
where the state court also modified the alien's sentence for a
different conviction in an apparent attempt to fit the conviction
within an exception to a criminal ground of removability. 814 F.3d at
949. The court affirmed the Board's refusal to recognize the vacatur
and modification, reasoning: ``The timing and effect of the order . . .
raise an inference the state court did not vacate the conviction on a
substantive or procedural ground, but rather to avoid the immigration
consequences of the conviction.'' Id. at 949-50.
Further, the rule would create a rebuttable presumption providing
that if more than a year has passed between the original conviction and
the alien's effort to seek a subsequent vacatur or expungement of a
conviction, or the modification of sentence, the immigration
adjudicator should weigh that fact against recognizing the vacatur or
modification. It is reasonable to conclude that an alien who has a
meritorious challenge to a criminal conviction based on a procedural or
substantive defect is more likely to seek post-conviction relief sooner
than an alien who is seeking relief on rehabilitative grounds, and who
might delay such a challenge until DHS commences immigration
proceedings or attempts to remove the alien. See Rumierz, 456 F.3d at
38 (affirming the Board's refusal to recognize a vacatur and the
Board's reasoning that ``Rumierz could easily have sought to vacate the
January 1994 Vermont conviction and have presented the vacated
conviction to the [Board] in the six years before the [Board's] 2000
order''). This rule promotes finality in immigration proceedings by
encouraging an alien to act diligently if there is a legitimate basis
to challenge a conviction or sentence.
C. Reconsiderations of Discretionary Denials of Asylum
The proposed rule would remove the automatic review of a
discretionary denial of an alien's asylum application by removing and
reserving paragraph (e) in 8 CFR 208.16 and 1208.16. The present
regulation provides that the denial of asylum shall be reconsidered in
the event that an applicant is denied asylum solely in the exercise of
discretion, and the applicant is subsequently granted withholding of
deportation or removal under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him or her. Factors to be considered include the
reasons for the denial and reasonable alternatives available to the
applicant such as reunification with his or her spouse or minor
children in a third country. This provision, however, has proved
confusing, inefficient, and unnecessary.
The courts of appeals have expressed ongoing confusion related to
this provision. For example, the regulation states that when an asylum
application is denied in the exercise of discretion, but withholding of
removal is granted, ``the denial of asylum shall be reconsidered,'' but
the regulation does not say who shall reconsider the denial, when the
reconsideration shall occur, or how the reconsideration is to be
initiated. See Shantu v. Lynch, 654 F. App'x 608, 613-14 (4th Cir.
2016) (discussing these ambiguities); see also
[[Page 69657]]
Huang v. INS, 436 F.3d 89, 93 (2d Cir. 2006). These ambiguities have
not been ``definitively resolved,'' Shantu, 654 F. App'x at 614, and
continued litigation on these questions would be an ongoing burden for
applicants, the immigration system, and courts.
Further, mandating that the decision maker reevaluate the very
issue just decided is an inefficient practice that, in the view of the
Departments, grants insufficient deference to the original fact finding
and exercise of discretion. The regulation also appears unnecessary
given that other regulations provide multiple avenues to challenge or
otherwise seek to change a discretionary denial of asylum coupled with
a grant of withholding of removal.\11\ First, an immigration judge may
reconsider that decision upon his or her own motion. 8 CFR
1003.23(b)(1). Second, the alien may file a motion to reconsider. Id.
Third, the alien may also appeal the decision to the Board. 8 CFR
1003.38. The existence of at least three alternative processes for
altering a discretionary denial of asylum obviates the need for a
mandatory fourth. Moreover, the objective of facilitating family
reunification, see Huang, 436 F.3d at 93 (describing 8 CFR 1208.16(e)
as ``manifestly a law designed to further family reunification''), can
be fulfilled even in the absence of the existing reconsideration
provision because the immigration judge (or other decision maker)
already considers these factors when making a discretionary decision in
the first instance, see Fisenko v. Lynch, 826 F.3d 287, 292 (6th Cir.
2016) (stating that ``a `crucial factor in weighing asylum as a
discretionary matter' is family reunification'' (internal quotation
marks and citation omitted)).
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\11\ With respect to the DHS regulation at 8 CFR 208.16(e), if
USCIS denies an individual's asylum application on discretionary
grounds, USCIS does not have jurisdiction to consider withholding of
removal eligibility because withholding of removal determinations
are made by immigration judges and the Board.
---------------------------------------------------------------------------
IV. Regulatory Requirements
A. Regulatory Flexibility Act
The Departments have reviewed this proposed rule in accordance with
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)) and have
determined that this rule will not have a significant economic impact
on a substantial number of small entities. The rule would 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 eligible to apply for asylum or are otherwise
placed in immigration proceedings.
B. Unfunded Mandates Reform Act of 1995
This proposed 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. See 2 U.S.C. 1532(a).
C. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this proposed rule is not 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 foreign-
based enterprises in domestic and export markets.
D. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
The Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), has designated this rule a ``significant
regulatory action'' under section 3(f)(4) of Executive Order 12866, but
not an economically significant regulatory action. Accordingly, the
rule has been submitted to OMB for review. The Departments certify that
this rule 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. Similarly, Executive
Order 13771 requires agencies to manage both the public and private
costs of regulatory actions.
The proposed regulation would provide seven additional mandatory
bars to eligibility for asylum pursuant to the Attorney General and the
Secretary's authorities under sections 208(b)(2)(B)(ii), 208(b)(2)(C),
and 208(d)(5) of the INA.\12\ The proposed rule would add bars on
eligibility for aliens who commit certain offenses in the United States
after entering the country. Those bars would apply to aliens who are
convicted of (1) a felony under federal or state law; (2) an offense
under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) (Alien Smuggling or
Harboring); (3) an offense under 8 U.S.C. 1326 (Illegal Reentry); (4) a
federal, state, tribal, or local crime involving criminal street gang
activity; (5) certain federal, state, tribal, or local offenses
concerning the operation of a motor vehicle while under the influence
of an intoxicant; (6) a federal, state, tribal, or local domestic
violence offense, or who are found by an adjudicator to have engaged in
acts of battery or extreme cruelty in a domestic context, even if no
conviction resulted; and (7) certain misdemeanors under federal or
state law for offenses related to false identification; the unlawful
receipt of public benefits from a federal, state, tribal, or local
entity; or the possession or trafficking of a controlled substance or
controlled-substance paraphernalia.
---------------------------------------------------------------------------
\12\ As discussed further below, the proposed regulation would
not otherwise impact the ability of an alien who is denied asylum to
receive the protection of withholding of removal under the INA or
withholding of removal or deferral of removal under the CAT.
---------------------------------------------------------------------------
The seven proposed bars would be in addition to the existing
mandatory bars relating to the persecution of others, convictions for
particularly serious crimes, commission of serious nonpolitical crimes,
security threats, terrorist activity, and firm resettlement in another
country that are currently contained in the INA and its implementing
regulations. See INA 208(b)(2); 8 CFR 208.13 and 1208.13. Under the
current statutory and regulatory framework, asylum officers and
immigration judges consider the applicability of mandatory bars to the
relief of asylum in every proceeding involving an alien who has
submitted an I-589 application for asylum. Although the proposed
regulation would expand the mandatory bars to asylum, the proposed
regulation does not change the nature or scope of the role of an
immigration judge or an asylum officer during proceedings for
consideration of asylum applications. Immigration judges and asylum
officers are already trained to consider both an alien's previous
conduct and criminal
[[Page 69658]]
record to determine whether any immigration consequences result, and
the proposed rule does not propose any adjudications that are more
challenging than those that are already conducted. For example,
immigration judges already consider the documentation of an alien's
criminal record that is filed by the alien, the alien's representative,
or the DHS representative in order to determine whether one of the
mandatory bars applies and whether the alien warrants asylum as a
matter of discretion. Because the proposed bars all relate to an
alien's criminal convictions or other criminal conduct, adjudicators
will conduct the same analysis to determine the applicability of the
bars proposed by the rule.\13\ The Departments do not expect the
proposed additional mandatory bars to increase the adjudication time
for immigration court proceedings involving asylum applications.
---------------------------------------------------------------------------
\13\ The Departments note that one of the newly proposed bars,
regarding whether or not the alien has ``engaged'' in certain acts
of battery or extreme cruelty, does not necessarily require a
criminal conviction. The Departments believe that a criminal arrest
or conviction is the most likely evidence to be filed with the
immigration court related to this bar, but even in cases where no
such evidence is available, the analysis by immigration judges
related to this proposed bar is not an expansion from the current
analysis immigration judges may conduct during the course of removal
proceedings. See, e.g., INA 212(a)(2)(C) (providing that an alien is
inadmissible if ``the Attorney General knows or has reason to
believe'' that the alien is an illicit trafficker of a controlled
substance, regardless of whether the alien has a controlled
substance-related conviction).
---------------------------------------------------------------------------
The Departments note that the proposed expansion of the mandatory
bars for asylum would likely result in fewer asylum grants annually;
\14\ however, because asylum applications are inherently fact-specific,
and because there may be multiple bases for denying an asylum
application, neither the Department of Justice (``DOJ'') nor DHS can
quantify precisely the expected decrease. An alien who would be barred
from asylum as a result of the proposed rule may still be eligible to
apply for the protection of withholding of removal under section
241(b)(3) of the INA or withholding of removal or deferral of removal
under regulations implementing U.S. obligations under Article 3 of the
CAT. See INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 208.17
through 18, 1208.16, and 1208.17 through 18. For those aliens barred
from asylum under this rule who would otherwise be positively
adjudicated for asylum, it is possible they would qualify for
withholding (provided a bar to withholding did not apply separate and
apart from this rule).\15\ To the extent there are any impacts of this
rule, they would almost exclusively fall on that population.\16\
---------------------------------------------------------------------------
\14\ In FY 2018, DOJ's immigration courts granted 13,169
applications for asylum.
\15\ Because statutory withholding of removal has a higher
burden of proof, an alien granted such protection would necessarily
also meet the statutory burden of proof for asylum, but would not be
otherwise eligible for asylum due to a statutory bar or as a matter
of discretion. Because asylum applications may be denied for
multiple reasons and because the proposed bars do not have analogues
in existing immigration law, there is no precise data on how many
otherwise grantable asylum applications would be denied using these
bars and, thus, there is no way to calculate precisely how many
aliens would be granted withholding. Further, because the
immigration judge would have to adjudicate the application in either
case, there is no cost to DOJ.
\16\ In FY 2018, DOJ's immigration courts completed 45,923 cases
with an application for asylum on file. For the first three quarters
of FY 2018, 622 applicants were denied asylum but granted
withholding.
---------------------------------------------------------------------------
The full extent of the impacts on this population is unclear and
would depend on the specific circumstances and personal characteristics
of each alien, and neither DHS nor DOJ collects such data at such a
level of granularity. Both asylum applicants and those who receive
withholding of removal may obtain work authorization in the United
States. Although asylees may apply for lawful permanent resident status
and later citizenship, they are not required to do so, and some do not.
Further, although asylees may bring certain family members to the
United States, not all asylees have family members or family members
that wish to leave their home countries. Moreover, family members of
aliens granted withholding of removal may have valid asylum claims in
their own right, which would provide them with a potential path to the
United States as well. The only clear impact is that aliens granted
withholding of removal generally may not travel outside the United
States without executing their underlying order of removal and, thus,
may not be allowed to return to the United States; however, even in
that situation--depending on the destination of their travel--they may
have a prima facie case for another grant of withholding of removal
should they attempt to reenter. In short, there is no precise
quantification available for the impact, if any, of this rule beyond
the general notion that it will likely result in fewer grants of asylum
on the whole.
Applications for withholding of removal typically require a similar
amount of in-court time to complete as an asylum application due to a
similar nucleus of facts. 8 CFR 1208.3(b) (an asylum application is
deemed to be an application for withholding of removal). In addition,
this proposed rule would not affect the eligibility of applicants for
the employment authorization documents available to recipients of those
protections and during the pendency of the consideration of the
application in accordance with the current regulations and agency
procedures. See 8 CFR 274a.12(c)(8) and (18), 208.7, and 1208.7.
The proposed rule would also remove the provision at 8 CFR
208.16(e) and 1208.16(e) regarding reconsideration of discretionary
denials of asylum. This change would have no impact on DHS adjudicative
operations because DHS does not adjudicate withholding requests. DOJ
estimates that immigration judges nationwide must apply 8 CFR
1208.16(e) in approximately 800 cases per year on average.\17\ The
removal of the requirement to reconsider a discretionary denial would
increase immigration court efficiencies and reduce any cost from the
increased adjudication time by no longer requiring a second review of
the same application by the same immigration judge. This impact,
however, would likely be minor because of the small number of affected
cases. Accordingly, DOJ assesses that removal of paragraphs 8 CFR
208.16(e) and 1208.16(e) would not increase any EOIR costs or
operations, and would, if anything, result in a small increase in
efficiency. The Departments note that removal of 8 CFR 208.16(e) and
1208.16(e) may have a marginal cost for aliens in immigration court
proceedings by removing one avenue for an alien who would otherwise be
denied asylum as a matter of discretion to be granted that relief. DOJ
notes, however, that of the average of 800 aliens situated as such each
year during the last ten years, an average of fewer than 150, or 0.4%,
of the average 38,000 total asylum completions \18\ each year filed an
appeal in their case, so the affected population is very small and the
overall impact would be nominal at most.\19\ Moreover, such aliens
would retain the ability to file a motion to reconsider in such a
situation and, thus, would not actually
[[Page 69659]]
lose the opportunity for reconsideration of a discretionary denial.
---------------------------------------------------------------------------
\17\ This approximation is based on the number of initial case
completions with an asylum application on file that had a denial of
asylum but a grant of withholding during FYs 2009 through the third
quarter of 2018.
\18\ Thirty-eight thousand is the average of completions of
cases with an asylum application on file from years FY 2008 through
FY 2018. Completions consist of both initial case completions and
subsequent case completions.
\19\ Because each case may have multiple bases for appeal and
appeal bases are not tracked to specific levels of granularity, it
is not possible to quantify precisely how many appeals were
successful on this particular issue.
---------------------------------------------------------------------------
For the reasons explained above, the expected costs of this
proposed rule are likely to be de minimis. This proposed rule is
accordingly exempt from Executive Order 13771. See Office of Mgmt. &
Budget, Guidance Implementing Executive Order 13771, Titled ``Reducing
Regulation and Controlling Regulatory Costs'' (2017).
E. 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, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
F. 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.
G. Paperwork Reduction Act
This rule does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. 3501 et
seq., and its implementing regulations, 5 CFR part 1320.
List of Subjects in 8 CFR Parts 208 and 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Proposed Regulatory Amendments
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, the Acting
Secretary of Homeland Security is proposing to amend 8 CFR part 208 as
follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229, 8 CFR part 2.
0
2. Section 208.13 is amended by adding paragraphs (c)(6) through (9) to
read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(6) Additional limitations on eligibility for asylum. For
applications filed on or after [the effective date of the final rule],
an alien shall be found ineligible for asylum if:
(i) The alien has been convicted on or after such date of an
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the
Act;
(ii) The alien has been convicted on or after such date of a
Federal, State, tribal, or local crime that the Secretary knows or has
reason to believe was committed in support, promotion, or furtherance
of the activity of a criminal street gang as that term is defined
either under the jurisdiction where the conviction occurred or in
section 521(a) of title 18;
(iii) The alien has been convicted on or after such date of an
offense for driving while intoxicated or impaired as those terms are
defined under the jurisdiction where the conviction occurred (including
a conviction for driving while under the influence of or impaired by
alcohol or drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under Federal, State, tribal, or
local law, in which such impaired driving was a cause of serious bodily
injury or death of another person;
(iv)(A) The alien has been convicted on or after such date of a
second or subsequent offense for driving while intoxicated or impaired
as those terms are defined under the jurisdiction where the conviction
occurred (including a conviction for driving while under the influence
of or impaired by alcohol or drugs) without regard to whether the
conviction is classified as a misdemeanor or felony under Federal,
State, tribal, or local law;
(B) A finding under paragraph (c)(6)(iv)(A) of this section does
not require the asylum officer to find the first conviction for driving
while intoxicated or impaired (including a conviction for driving while
under the influence of or impaired by alcohol or drugs) as a predicate
offense. The asylum officer need only make a factual determination that
the alien was previously convicted for driving while intoxicated or
impaired as those terms are defined under the jurisdiction where the
convictions occurred (including a conviction for driving while under
the influence of or impaired by alcohol or drugs);
(v)(A) The alien has been convicted on or after such date of a
crime that involves conduct amounting to a crime of stalking; or a
crime of child abuse, child neglect, or child abandonment; or that
involves conduct amounting to a domestic assault or battery offense,
including a misdemeanor crime of domestic violence, as described in
section 922(g)(9) of title 18, a misdemeanor crime of domestic violence
as described in section 921(a)(33) of title 18, a crime of domestic
violence as described in section 12291(a)(8) of title 34, or any crime
based on conduct in which the alien harassed, coerced, intimidated,
voluntarily or recklessly used (or threatened to use) force or violence
against, or inflicted physical injury or physical pain, however slight,
upon a person, and committed by:
(1) A current or former spouse of the person;
(2) An alien with whom the person shares a child in common;
(3) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(4) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(5) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government.
(B) In making a determination under paragraph (c)(6)(v)(A) of this
section, including in determining the existence of a domestic
relationship between the alien and the victim, the underlying conduct
of the crime may be considered and the asylum officer is not limited to
facts found by the criminal court or provided in the underlying record
of conviction;
(C) An alien who was convicted of offenses described in paragraph
(c)(6)(v)(A) of this section is not subject to ineligibility for asylum
on that basis if the alien would be described in section 237(a)(7)(A)
of the Act were the crimes or conduct considered grounds for
deportability under section 237(a)(2)(E)(i) through (ii) of the Act.
(vi) The alien has been convicted on or after such date of--
(A) Any felony under Federal, State, tribal, or local law;
(B) Any misdemeanor offense under Federal, State, tribal, or local
law involving:
(1) The possession or use of an identification document,
authentication feature, or false identification document without lawful
authority, unless the alien can establish that the conviction resulted
from circumstances showing that the document was presented before
boarding a common carrier, that the
[[Page 69660]]
document related to the alien's eligibility to enter the United States,
that the alien used the document to depart a country in which the alien
has claimed a fear of persecution, and that the alien claimed a fear of
persecution without delay upon presenting himself or herself to an
immigration officer upon arrival at a United States port of entry;
(2) The receipt of Federal public benefits, as defined in 8 U.S.C.
1611(c), from a Federal entity, or the receipt of similar public
benefits from a State, tribal, or local entity, without lawful
authority; or
(3) Possession or trafficking of a controlled substance or
controlled-substance paraphernalia, other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana;
(vii) There are serious reasons for believing the alien has engaged
on or after such date in acts of battery or extreme cruelty as defined
in 8 CFR 204.2(c)(1)(vi), upon a person, and committed by:
(A) A current or former spouse of the person;
(B) An alien with whom the person shares a child in common;
(C) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(D) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(E) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government,
even if the acts did not result in a criminal conviction;
(F) Except that an alien who was convicted of offenses or engaged
in conduct described in paragraph (c)(6)(vii) of this section is not
subject to ineligibility for asylum on that basis if the alien would be
described in section 237(a)(7)(A) of the Act were the crimes or conduct
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii)
of the Act.
(7) For purposes of paragraph (c)(6) of this section:
(i) The term ``felony'' means any crime defined as a felony by the
relevant jurisdiction (Federal, State, tribal, or local) of conviction,
or any crime punishable by more than one year of imprisonment.
(ii) The term ``misdemeanor'' means any crime defined as a
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or
local) of conviction, or any crime not punishable by more than one year
of imprisonment.
(iii) Whether any activity or conviction also may constitute a
basis for removability under the Act is immaterial to a determination
of asylum eligibility.
(iv) All references to a criminal offense or criminal conviction
shall be deemed to include any attempt, conspiracy, or solicitation to
commit the offense or any other inchoate form of the offense.
(v) No order vacating a conviction, modifying a sentence,
clarifying a sentence, or otherwise altering a conviction or sentence,
shall have any effect unless the asylum officer determines that--
(A) The court issuing the order had jurisdiction and authority to
do so; and
(B) The order was not entered for rehabilitative purposes or for
purposes of ameliorating the immigration consequences of the conviction
or sentence.
(8) For purposes of paragraph (c)(7)(v)(B) of this section, the
order shall be presumed to be for the purpose of ameliorating
immigration consequences if:
(i) The order was entered after the initiation of any proceeding to
remove the alien from the United States; or
(ii) The alien moved for the order more than one year after the
date of the original order of conviction or sentencing.
(9) An asylum officer is authorized to look beyond the face of any
order purporting to vacate a conviction, modify a sentence, or clarify
a sentence to determine whether the requirements of paragraph (c)(7)(v)
of this section have been met in order to determine whether such order
should be given any effect under this section.
Sec. 208.16 [Amended]
0
3. In Sec. 208.16, remove and reserve paragraph (e).
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, the
Attorney General proposes to amend 8 CFR part 1208 as follows:
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
4. The authority citation for part 1208 continues to read as fol1ows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.
0
5. Section 1208.13 is amended by adding paragraphs (c)(6) through (9)
to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(6) Additional limitations on eligibility for asylum. For
applications filed on or after [the effective date of the final rule],
an alien shall be found ineligible for asylum if:
(i) The alien has been convicted on or after such date of an
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the
Act;
(ii) The alien has been convicted on or after such date of a
Federal, State, tribal, or local crime that the Attorney General or
Secretary knows or has reason to believe was committed in support,
promotion, or furtherance of the activity of a criminal street gang as
that term is defined under the jurisdiction where the conviction
occurred or in section 521(a) of title 18;
(iii) The alien has been convicted on or after such date of an
offense for driving while intoxicated or impaired as those terms are
defined under the jurisdiction where the conviction occurred (including
a conviction for driving while under the influence of or impaired by
alcohol or drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under Federal, State, tribal, or
local law, in which such impaired driving was a cause of serious bodily
injury or death of another person;
(iv)(A) The alien has been convicted on or after such date of a
second or subsequent offense for driving while intoxicated or impaired
as those terms are defined under the jurisdiction where the conviction
occurred (including a conviction for driving while under the influence
of or impaired by alcohol or drugs) without regard to whether the
conviction is classified as a misdemeanor or felony under Federal,
State, tribal, or local law;
(B) A finding under paragraph (c)(6)(iv)(A) of this section does
not require the immigration judge to find the first conviction for
driving while intoxicated or impaired (including a conviction for
driving while under the influence of or impaired by alcohol or drugs)
as a predicate offense. The immigration judge need only make a factual
determination that the alien was previously convicted for driving while
intoxicated or impaired as those terms are defined under the
jurisdiction where the convictions occurred (including a conviction for
driving while under the influence of or impaired by alcohol or drugs).
(v)(A) The alien has been convicted on or after such date of a
crime that involves conduct amounting to a crime of stalking; or a
crime of child abuse,
[[Page 69661]]
child neglect, or child abandonment; or that involves conduct amounting
to a domestic assault or battery offense, including a misdemeanor crime
of domestic violence, as described in section 922(g)(9) of title 18, a
misdemeanor crime of domestic violence as described in section
921(a)(33) of title 18, a crime of domestic violence as described in
section 12291(a)(8) of title 34, or any crime based on conduct in which
the alien harassed, coerced, intimidated, voluntarily or recklessly
used (or threatened to use) force or violence against, or inflicted
physical injury or physical pain, however slight, upon a person, and
committed by:
(1) A current or former spouse of the person;
(2) An alien with whom the person shares a child in common;
(3) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(4) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(5) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government.
(B) In making a determination under paragraph (c)(6)(v) of this
section, including in determining the existence of a domestic
relationship between the alien and the victim, the underlying conduct
of the crime may be considered and the adjudicator is not limited to
facts found by the criminal court or provided in the underlying record
of conviction.
(C) An alien who was convicted of offenses or engaged in conduct
described in paragraph (c)(6)(v)(A) of this section is not subject to
ineligibility for asylum on that basis if the alien would be described
in section 237(a)(7)(A) of the Act were the crimes or conduct
considered grounds for deportability under section 237(a)(2)(E)(i)
through (ii) of the Act.
(vi) The alien has been convicted on or after such date of--
(A) Any felony under Federal, State, tribal, or local law;
(B) Any misdemeanor offense under Federal, State, tribal, or local
law involving
(1) The possession or use of an identification document,
authentication feature, or false identification document without lawful
authority, unless the alien can establish that the conviction resulted
from circumstances showing that the document was presented before
boarding a common carrier, that the document related to the alien's
eligibility to enter the United States, that the alien used the
document to depart a country in which the alien has claimed a fear of
persecution, and that the alien claimed a fear of persecution without
delay upon presenting himself or herself to an immigration officer upon
arrival at a United States port of entry;
(2) The receipt of Federal public benefits, as defined in 8 U.S.C.
1611(c), from a Federal entity, or the receipt of similar public
benefits from a State, tribal, or local entity, without lawful
authority; or
(3) Possession or trafficking of a controlled substance or
controlled-substance paraphernalia, other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana.
(vii) There are serious reasons for believing the alien has engaged
on or after such date in acts of battery or extreme cruelty as defined
in 8 CFR 204.2(c)(1)(vi), upon a person, and committed by:
(A) A current or former spouse of the person;
(B) An alien with whom the person shares a child in common;
(C) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(D) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(E) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government,
even if the acts did not result in a criminal conviction;
(F) Except that an alien who was convicted of offenses or engaged
in conduct described in paragraph (c)(6)(vii) of this section is not
subject to ineligibility for asylum on that basis if the alien would be
described in section 237(a)(7)(A) of the Act were the crimes or conduct
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii)
of the Act.
(7) For purposes of paragraph (c)(6) of this section:
(i) The term ``felony'' means any crime defined as a felony by the
relevant jurisdiction (Federal, State, tribal, or local) of conviction,
or any crime punishable by more than one year imprisonment.
(ii) The term ``misdemeanor'' means any crime defined as a
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or
local) of conviction, or any crime not punishable by more than one year
of imprisonment.
(iii) Whether any activity or convictions also may constitute a
basis for removability under the Act is immaterial to a determination
of asylum eligibility.
(iv) All references to a criminal offense or criminal conviction
shall be deemed to include any attempt, conspiracy, or solicitation to
commit the offense or any other inchoate form of the offense.
(v) No order vacating a conviction, modifying a sentence,
clarifying a sentence, or otherwise altering a conviction or sentence,
shall have any effect unless the asylum officer determines that--
(A) The court issuing the order had jurisdiction and authority to
do so; and
(B) The order was not entered for rehabilitative purposes or for
purposes of ameliorating the immigration consequences of the conviction
or sentence.
(8) For purposes of paragraph (c)(7)(v)(B) of this section, the
order shall be presumed to be for the purpose of ameliorating
immigration consequences if:
(i) The order was entered after the initiation of any proceeding to
remove the alien from the United States; or
(ii) The alien moved for the order more than one year after the
date of the original order of conviction or sentencing.
(9) An immigration judge or other adjudicator is authorized to look
beyond the face of any order purporting to vacate a conviction, modify
a sentence, or clarify a sentence to determine whether the requirements
of paragraph (c)(7)(v) of this section have been met in order to
determine whether such order should be given any effect under this
section.
Sec. 1208.16 [Amended]
0
6. In Sec. 1208.16, remove and reserve paragraph (e).
Dated: December 9, 2019.
Chad F. Wolf,
Acting Secretary of Homeland Security.
Dated: December 10, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-27055 Filed 12-18-19; 8:45 am]
BILLING CODE 9111-97-P 4410-30-P
