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

Citation85 FR 36264
Record Number2020-12575
Published date15 June 2020
CourtExecutive Office For Immigration Review,Homeland Security Department
Federal Register, Volume 85 Issue 115 (Monday, June 15, 2020)
[Federal Register Volume 85, Number 115 (Monday, June 15, 2020)]
                [Proposed Rules]
                [Pages 36264-36306]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-12575]
                [[Page 36263]]
                Vol. 85
                Monday,
                No. 115
                June 15, 2020
                Part IIDepartment of Homeland Security
                Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------8 CFR Parts 208, 235, 1003, et al.Procedures for Asylum and Withholding of Removal; Credible Fear and
                Reasonable Fear Review; Proposed Rule
                Federal Register / Vol. 85 , No. 115 / Monday, June 15, 2020 /
                Proposed Rules
                [[Page 36264]]
                DEPARTMENT OF HOMELAND SECURITY
                8 CFR Parts 208 and 235
                RIN 1615-AC42
                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003, 1208, and 1235
                [EOIR Docket No. 18-0002; A.G. Order No. 4714-2020]
                RIN 1125-AA94
                Procedures for Asylum and Withholding of Removal; Credible Fear
                and Reasonable Fear Review
                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.
                -----------------------------------------------------------------------
                SUMMARY: The Department of Justice and the Department of Homeland
                Security (collectively, ``the Departments'') propose to amend the
                regulations governing credible fear determinations so that individuals
                found to have such a fear will have their claims for asylum,
                withholding of removal under section 241(b)(3) of the Immigration and
                Nationality Act (``INA'' or ``the Act'') (``statutory withholding of
                removal''), or protection under the regulations issued pursuant to the
                legislation implementing the Convention Against Torture and Other
                Cruel, Inhuman or Degrading Treatment or Punishment (``CAT''),
                adjudicated by an immigration judge within the Executive Office for
                Immigration Review (``EOIR'') in streamlined proceedings (rather than
                in proceedings under section 240 of the Act), and to specify what
                standard of review applies in such streamlined proceedings. The
                Departments further propose changes to the regulations regarding
                asylum, statutory withholding of removal, and withholding and deferral
                of removal under the CAT regulations. The Departments also propose
                amendments related to the standards for adjudication of applications
                for asylum and statutory withholding.
                DATES: Written or electronic comments on the notice of proposed
                rulemaking must be submitted on or before July 15, 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. Comments
                specific to the proposed collection of information will be accepted
                until August 14, 2020. All such submissions received must include the
                OMB Control Number 1615-0067 in the body of the submission. Note:
                Comments received on the information collection that are intended as
                comments on the proposed rulemaking rather than those specific to the
                collection of information will be rejected.
                ADDRESSES: If you wish to provide comments regarding this rulemaking,
                you must submit comments, identified by the agency name and reference
                RIN 1125-AA94 or EOIR Docket No. 18-0002, by one of the two methods
                below.
                 Federal eRulemaking Portal: http://www.regulations.gov.
                Follow the website instructions for submitting comments.
                 Mail: Paper comments that duplicate an electronic
                submission are unnecessary. If you wish to submit a paper comment in
                lieu of electronic submission, please direct the mail/shipment to:
                Lauren Alder Reid, Assistant Director, Office of Policy, Executive
                Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls
                Church, VA 22041. To ensure proper handling, please reference the
                agency name and RIN 1125-AA94 or EOIR Docket No. 18-0002 on your
                correspondence. Mailed items must be postmarked or otherwise indicate a
                shipping date on or before the submission deadline.
                 Collection of information. You must submit comments on the
                collection of information discussed in this notice of proposed
                rulemaking to both the rulemaking docket and the Office of Management
                and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA).
                All such submissions received must include the OMB Control Number 1615-
                0067 in the body of the submission. OIRA submissions can be sent using
                any of the following methods.
                 Email (preferred): [email protected] (include the
                docket number and ``Attention: Desk Officer for U.S. Citizenship and
                Immigration Services, DHS'' in the subject line of the email).
                 Fax: 202-395-6566.
                 Mail: Office of Information and Regulatory Affairs, Office
                of Management and Budget, 725 17th Street NW, Washington, DC 20503;
                Attention: Desk Officer, U.S. Citizenship and Immigration Services,
                DHS.
                FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
                Office of Policy, Executive Office for Immigration Review, 5107
                Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (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, 20
                Massachusetts Ave. NW, Washington, DC 20529; telephone (202) 272-8377.
                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 via one of the methods and by the deadline stated above. All
                comments must be submitted in English, or accompanied by an English
                translation. The Departments also invite comments that relate to the
                economic, environmental, or federalism effects that might result from
                this rule. Comments that will provide the most assistance to the
                Departments in developing these procedures will reference a specific
                portion of the rule; explain the reason for any recommended change; and
                include data, information, or authority that support such recommended
                change.
                 Please note that all comments received are considered part of the
                public record and made available for public inspection at http://www.regulations.gov. Such information includes personally identifying
                information (such as your name, address, etc.) voluntarily submitted by
                the commenter. If you want to submit personally identifying information
                (such as your name, address, etc.) 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
                identify what information you want redacted.
                 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. You must prominently identify the confidential
                business information to be redacted within the comment. 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
                http://www.regulations.gov.
                 Personally identifying information located as set forth above will
                be placed in the agency's public docket file, but not posted online.
                Confidential business information identified and located as set
                [[Page 36265]]
                forth above will not be placed in the public docket file. The
                Departments may withhold from public viewing information provided in
                comments that they determine may affect 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. To inspect the agency's public docket file in
                person, you must make an appointment with the agency. Please see the
                For Further Information Contact paragraph above for agency contact
                information.
                II. Discussion \1\
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                 \1\ As a prefatory matter, the Departments note that portions of
                this rule, in accordance with well-established administrative law
                principles, would supersede certain interpretations of the
                immigration laws by federal courts of appeals: The Supreme Court has
                ``also made clear that administrative agencies are not bound by
                prior judicial interpretations of ambiguous statutory
                interpretations, because there is `a presumption that Congress, when
                it left ambiguity in a statute meant for implementation by an
                agency, understood that the ambiguity would be resolved, first and
                foremost, by the agency, and desired the agency (rather than the
                courts) to possess whatever degree of discretion the ambiguity
                allows.' '' Matter of R-A-, 24 I&N Dec. 629, 631 (A.G. 2008)
                (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs.,
                545 U.S. 967, 982 (2005) (internal quotation and citations
                omitted)). ``A court's prior judicial construction of a statute
                trumps an agency construction otherwise entitled to Chevron
                deference only if the prior court decision holds that its
                construction follows from the unambiguous terms of the statute and
                thus leaves no room for agency discretion.'' Brand X, 545 U.S. at
                982.
                 Matter of A-B-, 27 I&N Dec. 316, 327 (A.G. 2018).
                ---------------------------------------------------------------------------
                 Since World War II, the United States has sought a comprehensive
                solution to the issues surrounding the admission of refugees into the
                country and the protection of refugees from return to persecution. As
                an expression of a nation's foreign policy, the laws and policies
                surrounding asylum are an assertion of a government's right and duty to
                protect its own resources and citizens, while aiding those in true need
                of protection from harm. See, e.g., Kleindienst v. Mandel, 408 U.S.
                753, 765 (1972) (``In accord with ancient principles of the
                international law of nation-states, * * * the power to exclude aliens
                is inherent in sovereignty, [and] necessary for maintaining normal
                international relations and defending the country against foreign
                encroachments and dangers * * * .'' (internal citations and quotation
                marks omitted)).
                 In the Refugee Act of 1980 (``Refugee Act''), Public Law 96-212, 94
                Stat. 102, Congress furthered implementation of the United Nations
                Protocol Relating to the Status of Refugees (``Refugee Protocol''),
                Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268, providing for a
                permanent procedure for the admission and protection of refugees,
                generally defined in domestic law as:
                any person who is outside of any country of such person's
                nationality * * * and who is unable or unwilling to return to, and
                is unable or unwilling to avail himself or herself of the protection
                of, 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.
                Refugee Act, sec. 201(a), 94 Stat. at 102 (codified at section
                101(a)(42) of the INA, 8 U.S.C. 1101(a)(42)). Those five grounds are
                the sole grounds for asylum and refugee status.
                A. Expedited Removal and Screenings in the Credible Fear Process
                1. Asylum-and-Withholding-Only Proceedings \2\ for Aliens With Credible
                Fear
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                 \2\ These proceedings have also been referred to as ``asylum-
                only'' proceedings in other contexts. See, e.g., Matter of D-M-C-P-,
                26 I&N Dec. 644, 645 (BIA 2015) (``The applicant expressed a fear of
                returning to Argentina, and on June 23, 2011, his case was referred
                to the Immigration Court for asylum-only proceedings * * * .'').
                This NPRM uses the phrase ``asylum-and-withholding-only
                proceedings'' to ensure that the forms of relief and protection
                available are more accurately described.
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                 In the Illegal Immigration Reform and Immigrant Responsibility Act
                of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546
                (``IIRIRA''), Congress established the expedited removal process, thus
                establishing two primary types of proceedings for determining the
                removability of an alien from the United States: (1) Expedited removal
                proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
                and (2) removal proceedings under section 240 of the INA, 8 U.S.C.
                1229a (``section 240 proceedings'').
                 First, section 235 of the INA, 8 U.S.C. 1225, contains the
                procedures for expedited removal. Under expedited removal, aliens
                arriving in the United States--and, in the discretion of the Secretary
                of Homeland Security (``Secretary''),\3\ certain other designated
                classes of aliens \4\--who are found to be inadmissible under either
                section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding
                material misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
                1182(a)(7), regarding documentation requirements for admission, may be
                ``removed from the United States without further hearing or review
                unless the alien indicates either an intention to apply for asylum
                under section [208 of the INA, 8 U.S.C. 1158,] or a fear of
                persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i).\5\ Among
                other things, expedited removal is an administrative process that
                allows for the fair and efficient removal of aliens who have made no
                claims regarding asylum or a fear of return or, if they have, have not
                established a fear of persecution or torture, without requiring lengthy
                and resource-intensive removal proceedings in immigration court.
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                 \3\ The Homeland Security Act of 2002 (``HSA''), Public Law 107-
                296, 116 Stat. 2135, as amended, charged the Secretary ``with the
                administration and enforcement of this chapter [titled, `Immigration
                and Nationality'] and all other laws relating to the immigration and
                naturalization of aliens'' and granted the Secretary the power to
                take all actions ``necessary for carrying out'' the provisions of
                the immigration and nationality laws. See HSA, sec. 1102, 116 Stat.
                at 2273-74; Consolidated Appropriations Resolution of 2003, Public
                Law 108-7, div. L, sec. 105, 117 Stat. 11, 531 (codified at INA
                103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3)). The HSA states that
                the Attorney General ``shall have such authorities and functions
                under this chapter and all other laws relating to the immigration
                and naturalization of aliens as were [previously] exercised by
                [EOIR], or by the Attorney General with respect to [EOIR] * * * .''
                HSA, sec. 1102, 116 Stat. at 2274 (codified at INA 103(g)(1), 8
                U.S.C. 1103(g)(1)); see 6 U.S.C. 521. Furthermore, the Attorney
                General is authorized to ``establish such regulations, prescribe
                such forms of bonds, reports, entries, and other papers, issue such
                instructions, review such administrative determinations in
                immigration proceedings, delegate such authority, and perform such
                other acts as the Attorney General determines to be necessary for
                carrying out this section.'' HSA, sec. 1102, 116 Stat. at 2274
                (codified at INA 103(g)(2), 8 U.S.C. 1103(g)(2)).
                 \4\ DHS has designated the following additional categories of
                aliens, if inadmissible under sections 212(a)(6)(C) or 212(a)(7) of
                the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), as subject to
                expedited removal: (1) Aliens who are apprehended in the United
                States within 100 air miles of the border, who have not been
                admitted or paroled, and who cannot affirmatively show that they
                have been continuously physically present in the United States for
                the 14-day period prior to apprehension, see Designating Aliens For
                Expedited Removal, 69 FR 48877 (Aug. 11, 2004); and (2) aliens who
                arrived in the United States between ports of entry by sea, who have
                not been admitted or paroled, and who cannot affirmatively show that
                they have been continuously physically present in the United States
                for the two-year period prior to the determination of
                inadmissibility, see Notice Designating Aliens Subject to Expedited
                Removal Under Section 235(b)(1)(A)(iii) of the Immigration and
                Nationality Act, 67 FR 68924 (Nov. 13, 2002). On July 23, 2019, DHS
                announced it would expand the application of expedited removal to
                aliens (not included in the additional categories established in
                2002 and 2004) who are inadmissible under sections 212(a)(6)(C) or
                212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), who are
                apprehended anywhere in the United States, who have not been
                admitted or paroled, and who cannot affirmatively show that they
                have been continuously physically present for the two-year period
                prior to the determination of inadmissibility. See Designating
                Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). The U.S.
                District Court for the District of Columbia issued an injunction
                against the July 2019 designation. Make the Road New York v.
                McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019).
                 \5\ Unaccompanied alien children, as defined in 6 U.S.C.
                279(g)(2), are exempt from expedited removal. See 8 U.S.C.
                1232(a)(5)(D)(i).
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                 Pursuant to statute and regulations, DHS implements a screening
                process,
                [[Page 36266]]
                known as ``credible fear'' screening, to identify potentially valid
                claims for asylum, statutory withholding of removal, and protection
                under the regulations issued pursuant to the legislation implementing
                CAT, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113,\6\ to
                prevent aliens placed in expedited removal from being removed to a
                country in which they would face persecution or torture.\7\ Currently,
                any alien who expresses a fear of persecution or torture, a fear of
                return, or an intention to apply for asylum during the course of the
                expedited removal process is referred to a DHS asylum officer for an
                interview to determine if the alien has a credible fear of persecution
                or torture in the country of return. INA 235(b)(1)(A)(ii), (B), 8
                U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4),
                1235.3(b)(4)(i). If the asylum officer determines that the alien does
                not have a credible fear of persecution or torture (or, in certain
                instances, a reasonable possibility of persecution or torture), the
                alien may request that an immigration judge review that determination.
                See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
                208.30(g), 1208.30(g).
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                 \6\ Because CAT is a non-self-executing treaty, see, e.g., Hui
                Zheng v. Holder, 562 F.3d 647, 655-56 (4th Cir. 2009), adjudicators
                do not apply CAT itself, but rather the regulations issued pursuant
                to the implementing legislation, principally 8 CFR 1208.16(c)-
                1208.18. See Foreign Affairs Reform and Restructuring Act of 1998
                (``FARRA''), Public Law 105-277, sec. 2242(b), 112 Stat. 2681, 2681-
                822 (codified at 8 U.S.C. 1231 note).
                 \7\ Screening for fear of torture in the designated country of
                removal is conducted not under section 235(b)(1) of the INA, 8
                U.S.C. 1225(b)(1), but instead under the CAT regulations.
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                 Under the current regulatory framework, if the asylum officer
                determines that an alien subject to expedited removal proceedings has a
                credible fear of persecution or torture (or, in certain instances, a
                reasonable possibility of persecution or torture), DHS places the alien
                before an immigration court for adjudication of the alien's claims by
                initiating section 240 proceedings. See 8 CFR 208.30(f),
                235.6(a)(1)(ii), 1235.6(a)(1)(i). Section 240 proceedings are often
                more detailed and provide additional procedural protections, including
                greater administrative and judicial review, than expedited removal
                proceedings under section 235 of the Act. Compare INA 235(b)(1), 8
                U.S.C. 1225(b)(1), with INA 240, 8 U.S.C. 1229a. Similarly, if an
                immigration judge, upon review of the asylum officer's negative
                determination, finds that the alien possesses a credible fear of
                persecution or torture (or, in certain instances, a reasonable
                possibility of persecution or torture), the immigration judge will
                vacate the expedited removal order, and DHS will initiate section 240
                proceedings for the alien. 8 CFR 1208.30(g)(2)(iv)(B).
                 The INA, however, instructs only that an alien who is found to have
                a credible fear ``shall be detained for further consideration of the
                application for asylum,'' and neither mandates that an alien who
                demonstrates a credible fear be placed in removal proceedings in
                general nor in section 240 proceedings specifically. INA
                235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).
                 The relevant regulations regarding the credible fear process, and
                the interplay between expedited removal and section 240 proceedings,
                were first implemented in 1997. Inspection and Expedited Removal of
                Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR 10312 (Mar. 6, 1997).\8\ At the
                time, the former Immigration and Naturalization Service (``INS'')
                explained that it was choosing to initiate section 240 proceedings in
                this context because the remaining provisions of section 235(b) of the
                Act, beyond those governing credible fear review, were specific to
                aliens who do not have a credible fear and because the statute was
                silent as to procedures for those who demonstrated such a fear. Id. at
                10320. The INS's analysis at the time was very limited.
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                 \8\ The 1997 rule amended, inter alia, part 208 of title 8 of
                the CFR. Following the creation of DHS in 2003 after the passage of
                the HSA, EOIR's regulations were moved from Chapter I of Title 8 to
                Chapter V. Aliens and Nationality; Homeland Security; Reorganization
                of Regulations, 68 FR 9824 (Feb. 28, 2003). Part 208 was
                subsequently duplicated for EOIR at part 1208. Id.
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                 For several reasons, the Departments believe that section
                235(b)(1), 8 U.S.C. 1225(b)(1), when compared with section 235(b)(2), 8
                U.S.C. 1225(b)(2), may also be read as permitting a procedure for
                ``further consideration of [an] application for asylum'' that is
                separate from section 240 proceedings. First, while section 235(b)(1),
                8 U.S.C. 1225(b)(1), mandates that an alien with a positive credible
                fear determination receive ``further consideration of [his or her]
                application for asylum,'' section 235(b)(2), 8 U.S.C. 1225(b)(2),
                mandates that other classes of aliens receive ``a proceeding under
                section 1229a of this title''--i.e., section 240 of the INA, 8 U.S.C.
                1229a. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with
                INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). The difference in language
                suggests that section 235(b)(1), 8 U.S.C. 1225(b)(1), does not require
                use of section 240 proceedings, in contrast to section 235(b)(2), 8
                U.S.C. 1225(b)(2), which does so require. See Henson v. Santander
                Consumer USA, Inc., 137 S. Ct. 1718, 1723 (2017) (``differences in
                language [generally] convey differences in meaning''). That negative
                inference is reinforced by the fact that aliens in expedited removal
                are expressly excluded from the class of aliens entitled to section 240
                proceedings under section 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). See INA
                235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
                 Second, an alien with a positive credible fear determination is
                entitled only to a further proceeding related to his or her
                ``application for asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C.
                1225(b)(1)(B)(ii). An asylum application's purpose is to determine
                whether the alien is entitled to relief or protection from removal, not
                whether the alien should be admitted or is otherwise entitled to
                immigration benefits. See Matter of V-X-, 26 I&N Dec. 147, 150 (BIA
                2013) (holding that, ``although [an alien's] grant of asylum confer[s]
                a lawful status upon him, it [does] not entail an `admission'''). By
                contrast, in section 240 proceedings, aliens generally may raise their
                admissibility and their entitlement to various forms of relief or
                protection. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii),
                with INA 240(c)(2)-(4), 8 U.S.C. 1229a(c)(2)-(4).
                 Moreover, the Departments believe, for the reasons described in
                this rule, that it is better policy to place aliens with a positive
                credible fear determination in asylum-and-withholding-only proceedings
                rather than section 240 proceedings.
                 DHS has prosecutorial discretion at the outset to place an alien
                amenable to expedited removal instead in section 240 proceedings. See
                Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017) (``The
                DHS's decision to commence removal proceedings involves the exercise of
                prosecutorial discretion, and neither the Immigration Judges nor the
                Board may review a decision by the DHS to forgo expedited removal
                proceedings or initiate removal proceedings in a particular case.'');
                Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011). If DHS has
                exercised its discretion by initially commencing expedited removal
                proceedings against an alien, placing that alien in section 240
                proceedings following the establishment of a credible fear effectively
                negates DHS's original discretionary decision. By deciding that the
                alien was amenable to expedited removal, DHS already determined
                removability, leaving only a determination as to whether the
                [[Page 36267]]
                individual is eligible for relief or entitled to protection from
                removal in the form of asylum, statutory withholding of removal, or
                protection under the CAT regulations. Further, it is evident that
                Congress intended the expedited removal process to be streamlined,
                efficient, and truly ``expedited'' based on the statutory limits it
                placed on administrative review of expedited removal orders, INA
                235(b)(1)(C), 8 U.S.C. 1225(b)(1)(C); the temporal limits it placed on
                review of negative credible fear determinations by immigration judges,
                INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); and the
                limitations placed on judicial review of determinations made during the
                expedited removal process, INA 242(e), 8 U.S.C. 1252(e). The current
                policy of referring aliens who have established a credible fear for
                section 240 proceedings runs counter to those legislative aims.\9\
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                 \9\ In Matter of X-K-, 23 I&N Dec. 731 (BIA 2005)--which the
                Attorney General recently overruled in Matter of M-S-, 27 I&N Dec.
                509 (A.G. 2019)--the Board of Immigration Appeals noted in dicta
                that although the INA ``does not require that such aliens be placed
                in full section 240 removal proceedings * * *, there is legislative
                history suggesting that this comports with the intent of Congress.''
                23 I&N Dec. at 734 (citing H.R. Rep. No. 104-828, at 209 (1996)
                (Conf. Rep.) (``If the officer finds that the alien has a credible
                fear of persecution, the alien shall be detained for further
                consideration of the application for asylum under normal non-
                expedited removal proceedings.''). Although the notation in the
                House Conference Report may be read as supporting an interpretation
                of section 235(b) that allows for the current policy, the statute
                certainly does not compel the current policy. Indeed, we presume
                that Congress speaks most directly through its adopted statutory
                language, and, as explained above, that language actually clearly
                permits the use of asylum-and-withholding-only proceedings, rather
                than section 240 proceedings.
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                 Accordingly, DOJ proposes to amend 8 CFR 1003.1, 8 CFR 1003.42(f),
                8 CFR 1208.2, 8 CFR 1208.30, and 8 CFR 1235.6--and DHS proposes to
                amend 8 CFR 208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR
                235.6(a)(1)--so that aliens who establish a credible fear of
                persecution, a reasonable possibility of persecution, or a reasonable
                possibility of torture and accordingly receive a positive fear
                determination will appear before an immigration judge for ``asylum-and-
                withholding-only'' proceedings under 8 CFR 208.2(c)(1) and 8 CFR
                1208.2(c)(1).\10\ Such proceedings will be adjudicated in the same
                manner that currently applies to certain alien crewmembers, stowaways,
                and applicants for admission under the Visa Waiver Program, among other
                categories of aliens who are not entitled by statute to section 240
                proceedings. See 8 CFR 208.2(c)(1)(i)-(viii), 1208.2(c)(1)(i)-(viii).
                Additionally, to ensure that these claims receive the most expeditious
                consideration reasonably possible, the Departments propose to amend 8
                CFR 208.5 and 8 CFR 1208.5 to require DHS to make available appropriate
                applications and relevant warnings to aliens in its custody who have
                expressed a fear in the expedited removal process and received a
                positive determination.
                ---------------------------------------------------------------------------
                 \10\ Under existing regulations, in proceedings under 8 CFR
                208.2(c)(1) and 8 CFR 1208.2(c)(1), aliens may pursue not only
                claims for asylum, but also claims for ``withholding or deferral of
                removal''--which encompasses both statutory withholding of removal,
                and withholding and deferral of removal under the CAT regulations. 8
                CFR 208.2(c)(3)(i), 1208.2(c)(3)(i). This rule makes no change to
                that aspect of the existing regulations.
                ---------------------------------------------------------------------------
                 These ``asylum-and-withholding-only'' proceedings generally follow
                the same rules of procedure that apply in section 240 proceedings, but
                the immigration judge's consideration is limited solely to a
                determination on the alien's eligibility for asylum, statutory
                withholding of removal, and withholding or deferral of removal under
                the CAT regulations (and, if the alien is eligible for asylum, whether
                he or she should receive it as a matter of discretion). 8 CFR
                208.2(c)(3)(i), 1208.2(c)(3)(i). If the immigration judge does not
                grant the alien asylum, statutory withholding of removal, or protection
                under the CAT regulations, the alien will be removed, although the
                alien may submit an appeal of a denied application for asylum,
                statutory withholding of removal, or protection under the CAT
                regulations to the Board of Immigration Appeals (``BIA'').\11\
                ---------------------------------------------------------------------------
                 \11\ DOJ proposes a technical correction to 8 CFR 1003.1(b),
                which establishes the jurisdiction of the BIA, to correct the
                reference to 8 CFR 1208.2 in paragraph (b)(9) and ensure that the
                regulations accurately authorize BIA review in ``asylum-and-
                withholding-only'' proceedings. EOIR and the INS amended 8 CFR part
                208 in 1997 following the enactment of IIRIRA. Inspection and
                Expedited Removal of Aliens; Detention and Removal of Aliens;
                Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444 (Jan.
                3, 1997). Two of the many changes made at the time were (1) amending
                8 CFR 208.2(b) to set out immigration judges' jurisdiction over
                asylum applications filed by aliens not entitled to proceedings
                under section 240 of the INA, 8 U.S.C. 1229a, and aliens who have
                been served, among other charging documents, a Notice to Appear; and
                (2) amending 8 CFR 3.1(b)(9) to specifically state that the BIA has
                jurisdiction over asylum applications described at 8 CFR 208.2(b).
                Inspection and Expedited Removal of Aliens; Detention and Removal of
                Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR at
                455, 462. In 2000, EOIR and the INS redesignated then-existing 8 CFR
                208.2(b) into separate paragraphs 8 CFR 208.2(b) (regarding
                immigration judges' jurisdiction over aliens served, among other
                charging documents, a Notice to Appear) and 8 CFR 208.2(c)
                (regarding immigration judges' jurisdiction over asylum applications
                filed by aliens not entitled to removal proceedings under section
                240 of the INA). Asylum Procedures, 65 FR 76121, 76122 (Dec. 6,
                2000). EOIR and the INS, however, failed to make a corresponding
                update to 8 CFR 3.1(b)(9) to account for the change to the cross-
                referenced paragraph 8 CFR 208.2(b). There is no indication that the
                Departments intended to remove appeals from ``asylum-and-
                withholding-only'' proceedings from the BIA's jurisdiction. In 2003,
                following the creation of DHS, EOIR's regulations were transferred
                from chapter I to chapter V of 8 CFR and redesignated. Aliens and
                Nationality; Homeland Security; Reorganization of Regulations, 68 FR
                9824, 9830, 9834 (Feb. 28, 2003). Since EOIR and the INS amended 8
                CFR 208.2(b) in 2000, the BIA has continued to exercise jurisdiction
                over appeals from asylum-and-withholding-only proceedings. See,
                e.g., Kanacevic v. I.N.S., 448 F.3d 129, 133 (2d Cir. 2006) (noting
                that the BIA summarily affirmed an immigration judge's decision in a
                proceeding under 8 CFR 208.2(c)(iii)); Matter of D-M-C-P-, 26 I&N
                Dec. at 647 (holding that neither an immigration judge nor the BIA
                has jurisdiction to consider whether asylum-and-withholding-only
                proceedings were improvidently instituted). Accordingly, the
                Departments are now correcting the reference at 8 CFR 1003.1(b)(9)
                to prevent ambiguity regarding the BIA's jurisdiction over appeals
                from immigration judges' decisions in proceedings under 8 CFR
                1208.2(c), including decisions in ``asylum-and-withholding-only''
                proceedings involving aliens found to have a credible fear of
                persecution or reasonable possibility of persecution or torture
                under the proposed rule.
                ---------------------------------------------------------------------------
                2. Consideration of Precedent When Making Credible Fear Determinations
                in the ``Credible Fear'' Process
                 DOJ proposes to add language to 8 CFR 1003.42(f) to specify that an
                immigration judge will consider applicable legal precedent when
                reviewing a negative fear determination. This instruction is in
                addition to those currently in 8 CFR 1003.42 to consider the
                credibility of the alien's statements and other facts of which the
                immigration judge is aware. These changes codify in the regulations the
                current practice and provide a clear requirement to immigration judges
                that they must consider and apply all applicable law, including
                administrative precedent from the BIA, decisions of the Attorney
                General, decisions of the federal courts of appeals binding in the
                jurisdiction where the immigration judge conducting the review sits,
                and decisions of the Supreme Court.
                3. Remove and Reserve DHS-Specific Procedures From DOJ Regulations
                 The Department of Justice proposes to remove and reserve 8 CFR
                1235.1, 8 CFR 1235.2, 8 CFR 1235.3, and 8 CFR 1235.5. When the
                Department first incorporated part 235 into 1235, it stated that
                ``nearly all of the provisions * * * affect bond hearings before
                immigration judges.'' Aliens and Nationality; Homeland Security;
                Reorganization of Regulations, 68 FR 9824, 9826 (Feb. 28, 2003). Upon
                further review, the Department has determined that these sections
                regard procedures that are specific to DHS's examinations of applicants
                for admission as set forth in 8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3,
                and 8 CFR 235.5, and do not need to be duplicated
                [[Page 36268]]
                in the regulations for EOIR in Chapter V, except for the provisions in
                8 CFR 1235.4 relating to the withdrawal of an application for admission
                and 8 CFR 1235.6 relating to the referral of cases to an immigration
                judge.
                4. Reasonable Possibility as the Standard of Proof for Statutory
                Withholding of Removal and Torture-Related Fear Determinations for
                Aliens in Expedited Removal Proceedings and Stowaways
                 This rule also proposes clarifying and raising the statutory
                withholding of removal screening standard and the torture-related
                screening standard under the CAT regulations for stowaways and aliens
                in expedited removal.\12\ Currently, fear screenings for aliens in
                expedited removal proceedings and stowaways generally involve
                considering whether there is a significant possibility that the alien
                can establish, in a hearing on the merits, eligibility for asylum,
                statutory withholding of removal, or withholding or deferral of removal
                under the CAT regulations. See 8 CFR 208.30(e)(2)-(3). Screening for
                protection under statutory withholding of removal generally involves
                considering whether there is a significant possibility that the alien
                could establish in a hearing that it is more likely than not that he or
                she would be persecuted on account of race, religion, nationality,
                membership in a particular social group, or political opinion, if
                removed to the proposed country of removal. See 8 CFR 208.16(b),
                208.30(e)(2), 1208.16(b). Currently, screening for protection under the
                CAT regulations generally involves considering whether the alien can
                establish that there is a significant possibility that he or she could
                establish that it is more likely than not that he or she would be
                tortured if removed to the proposed country of removal. See 8 CFR
                208.16(c), 208.30(e)(3), 1208.16(c). The ``significant possibility''
                standard has been interpreted by DHS as requiring that the alien
                ``demonstrate a substantial and realistic possibility of succeeding''
                in immigration court. See Memorandum from John Lafferty, Chief, Asylum
                Div., U.S. Citizenship and Immigration Servs., Release of Updated
                Asylum Division Officer Training Course (ADOTC) Lesson Plan, Credible
                Fear of Persecution and Torture Determinations 2 (Feb. 28, 2014); see
                also Holmes v. Amerex Rent-A-Car, 180 F.3d 294, 297 (D.C. Cir. 1999)
                (stating in a non-immigration context that establishing a significant
                possibility involves demonstrating ``a substantial and realistic
                possibility of succeeding'' (quoting Holmes v. Amerex Rent-a-Car, 710
                A.2d 846, 852 (D.C. 1998))). The Departments propose amending 8 CFR
                208.30 and 8 CFR 1208.30 to raise the standard of proof in ``credible
                fear'' screenings for aliens in expedited removal proceedings and for
                stowaways from a significant possibility that the alien can establish
                eligibility for statutory withholding of removal to a reasonable
                possibility that the alien would be persecuted because of his or her
                race, religion, nationality, membership in a particular social group,
                or political opinion. See 8 CFR 208.16, 208.30(e)(2), 1208.16.
                Similarly, for aliens expressing a fear of torture, the Departments
                propose amending 8 CFR 208.30 and 8 CFR 1208.30 to raise the standard
                of proof from a significant possibility that the alien is eligible for
                withholding or deferral of removal under the CAT regulations to a
                reasonable possibility that the alien would be tortured in the country
                of removal. See 8 CFR 208.18(a), 208.30(e)(3), 1208.18(a).
                ---------------------------------------------------------------------------
                 \12\ A stowaway is defined in section 101(a)(49) of the INA, 8
                U.S.C. 1101(a)(49), as ``any alien who obtains transportation
                without the consent of the owner, charterer, master or person in
                command of any vessel or aircraft through concealment aboard such
                vessel or aircraft.'' Further, ``[a] passenger who boards with a
                valid ticket is not to be considered a stowaway.'' Id. The rules
                that apply to stowaways relating to referrals for credible fear
                determinations and review by an immigration judge are found in
                section 235(a)(2) of the INA, 8 U.S.C. 1225(a)(2), which provides
                that:
                 An arriving alien who is a stowaway is not eligible to apply for
                admission or to be admitted and shall be ordered removed upon
                inspection by an immigration officer. Upon such inspection if the
                alien indicates an intention to apply for asylum under section 1158
                of this title or a fear of persecution, the officer shall refer the
                alien for an interview under subsection (b)(1)(B). A stowaway may
                apply for asylum only if the stowaway is found to have a credible
                fear of persecution under subsection (b)(1)(B). In no case may a
                stowaway be considered an applicant for admission or eligible for a
                hearing under section 1229a of this title.
                ---------------------------------------------------------------------------
                 Congress has not required that consideration of eligibility for
                asylum, statutory withholding of removal, and protection under the CAT
                regulations in the ``credible fear'' screening process be considered in
                the same manner. In fact, the ``credible fear'' screening process as
                set forth in the INA makes no mention whatsoever of statutory
                withholding of removal or protection under the CAT regulations. See INA
                235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also FARRA, 112 Stat. at
                2681-822; INA 103(a)(1), 8 U.S.C. 1103(a)(1) (``The Secretary of
                Homeland Security shall be charged with the administration and
                enforcement of [the INA] and all other laws relating to the immigration
                and naturalization of aliens * * * .''); INA 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 has applied for asylum in
                accordance with the requirements and procedures established by the
                Secretary of Homeland Security or the Attorney General under this
                section * * * .''); INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A);
                Regulations Concerning the Convention Against Torture, 64 FR 8478, 8478
                (Feb. 19, 1999), as corrected by Regulations Concerning the Convention
                Against Torture, 64 FR 13881 (Mar. 23, 1999) (``Under Article 3 [of
                CAT], the United States had agreed not to `expel, return (`refouler')
                or extradite' a person to another state where he or she would be
                tortured * * * . The United States currently implements Article 33 of
                the Refugee Convention through the withholding of removal provision in
                section 241(b)(3) * * * of the [INA] * * * .''). FARRA provides that
                ``the heads of the appropriate agencies shall prescribe regulations to
                implement the obligations of the United States under Article 3'' of
                CAT, ``subject to any reservations, understandings, declarations, and
                provisos contained in the United States Senate resolution of
                ratification of [CAT].'' FARRA, sec. 2242(b), 112 Stat. at 2681-822.
                 Recently, DHS began to apply the ``reasonable possibility''
                standard of proof to determinations regarding potential eligibility for
                statutory withholding of removal and protection under the CAT
                regulations in ``credible fear'' screenings for aliens in expedited
                removal proceedings where an alien is found barred from asylum pursuant
                to 8 CFR 208.13(c)(3)-(4). On November 9, 2018, the Departments issued
                an Interim Final Rule (``IFR'') to provide that certain aliens
                described in 8 CFR 208.13(c)(3) or 8 CFR 1208.13(c)(3) who entered the
                United States in contravention of a covered Presidential proclamation
                or order are barred from eligibility for asylum (hereinafter referred
                to as the ``Presidential Proclamation Asylum Bar IFR''). Under that
                rule, claims for statutory withholding and protection under the CAT
                regulations are analyzed under this ``reasonable possibility''
                standard. See Aliens Subject to a Bar on Entry Under Certain
                Presidential Proclamations; Procedures for Protection Claims, 83 FR
                55934 (Nov. 9, 2018).\13\ In addition, on
                [[Page 36269]]
                July 16, 2019, the Departments issued an IFR providing that certain
                aliens described in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) who
                enter, attempt to enter, or arrive in the United States across the
                southern land border on or after such date, after transiting through at
                least one country outside the alien's country of citizenship,
                nationality, or last lawful habitual residence en route to the United
                States, will be found ineligible for asylum unless they qualify for
                certain exceptions (hereinafter referred to as the ``Third Country
                Transit Asylum Bar IFR''). See Asylum Eligibility and Procedural
                Modifications, 84 FR 33829 (July 16, 2019). That IFR provides that if
                an alien is found ineligible for asylum pursuant to the bar, asylum
                officers will similarly apply the ``reasonable possibility'' standard
                to any statutory withholding of removal or CAT regulation claims in the
                ``credible fear'' screening context. See id. at 33837.\14\
                ---------------------------------------------------------------------------
                 \13\ On December 19, 2018, the U.S. District Court for the
                Northern District of California enjoined the Departments ``from
                taking any action continuing to implement the Rule'' and ordered the
                Departments ``to return to the pre-Rule practices for processing
                asylum applications.'' E. Bay Sanctuary Covenant v. Trump, 354 F.
                Supp. 3d 1094, 1121 (N.D. Cal. 2018). On February 28, 2020, the U.S.
                Court of Appeals for the Ninth Circuit affirmed the injunction. E.
                Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1284 (9th Cir.
                2020). The Departments in this rule do not propose to make any
                amendments that would implement the rule at issue in East Bay
                Sanctuary.
                 \14\ On July 24, 2019, the U.S. District Court for the Northern
                District of California enjoined the Departments ``from taking any
                action continuing to implement the Rule'' and ordered the
                Departments ``to return to the pre-Rule practices for processing
                asylum applications.'' E. Bay Sanctuary Covenant v. Barr, 385 F.
                Supp. 3d 922, 960 (N.D. Cal. 2019). On August 16, 2019, the U.S.
                Court of Appeals for the Ninth Circuit issued a partial stay of the
                preliminary injunction so that the injunction remained in force only
                in the Ninth Circuit. E. Bay Sanctuary Covenant v. Barr, 934 F.3d
                1026, 1028 (9th Cir. 2019). On September 9, 2019, the district court
                then reinstated the nationwide scope of the injunction. 391
                F.Supp.3d 974. Two days later, the Supreme Court stayed the district
                court's injunction. Barr v. East Bay Sanctuary Covenant, 140 S. Ct.
                3 (2019). The Departments do not propose to make any amendments in
                this rule that would modify the substance of the rule at issue in
                that litigation.
                ---------------------------------------------------------------------------
                 This proposed rule would expand the Departments' application of the
                ``reasonable possibility'' standard of proof. Specifically, the
                standard of proof in the ``credible fear'' screening process for
                statutory withholding of removal and protection under the CAT
                regulations would be raised from a significant possibility that the
                alien can establish eligibility for such relief or protection to a
                reasonable possibility that the alien would be persecuted or tortured.
                See 8 CFR 208.16, 208.30(e)(2), 1208.16; see also 8 CFR 208.30(e)(3)
                (currently employing a ``significant possibility'' standard), 8 CFR
                208.18(a) and 1208.18(a) (defining torture). For aliens expressing a
                fear of persecution, the standard of proof in the screening remains
                unchanged regarding asylum eligibility, i.e., a significant possibility
                that the alien could establish eligibility for asylum. See INA
                235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
                 Under this rule, during ``credible fear'' screening interviews,\15\
                asylum officers would consider whether aliens could establish a
                credible fear of persecution, a reasonable possibility of persecution,
                or a reasonable possibility of torture. Assessing a ``credible fear of
                persecution'' for purposes of asylum claims would continue to involve
                considering whether there is a significant possibility that the alien
                could establish eligibility for asylum under section 208 of the INA, 8
                U.S.C. 1158, as is currently provided in the regulations. See 8 CFR
                208.30(e)(2). However, under the proposed regulations, assessing a
                ``reasonable possibility of persecution'' would involve considering
                whether there is a reasonable possibility that the alien would be
                persecuted such that the alien should be referred to a hearing in
                immigration court to adjudicate eligibility for statutory withholding
                of removal. See 8 CFR 208.16(b), 1208.16(b).
                ---------------------------------------------------------------------------
                 \15\ The Departments recognize that, as a linguistic matter, it
                may seem strange to refer to a proceeding in which a reasonable
                possibility standard is applied as a ``credible fear'' screening.
                But the Departments have elected to retain the ``credible fear''
                nomenclature because the relevant statutory provision is titled
                ``removal without further review if no credible fear of
                persecution,'' INA 235(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii),
                and for continuity and for ease of distinguishing proceedings
                conducted under 8 CFR 208.30 from those conducted under 8 CFR
                208.31. Moreover, this change is consistent with the Departments'
                IFR in 2018 that employed a reasonable possibility standard in the
                context of a credible fear screening for aliens subject to certain
                Presidential proclamations. See Presidential Proclamation Asylum Bar
                IFR, 83 FR at 55943.
                ---------------------------------------------------------------------------
                 Meanwhile, under this proposed rule, assessing a reasonable
                possibility of torture would involve considering whether there is a
                reasonable possibility that the alien would be tortured such that the
                alien should be referred for a hearing in immigration court to
                adjudicate potential eligibility for protection under the CAT
                regulations. See 8 CFR 208.16(c), 1208.16(c). Consistent with existing
                regulations, if the alien is referred to immigration court after
                receiving a positive fear determination, the immigration judge applies
                a ``more likely than not'' standard to the claims for statutory
                withholding of removal and protection under the CAT regulations. See 8
                CFR 1208.16-1208.17.
                 To be eligible for asylum under section 208 of the INA, 8 U.S.C.
                1158, an alien must ultimately prove a ``reasonable possibility'' of
                persecution upon return to his or her country. See, e.g., Y.C. v.
                Holder, 741 F.3d 324, 332 (2d Cir. 2013); see also 8 CFR
                208.13(b)(2)(i)(B), 1208.13(b)(2)(i)(B). On the other hand, to be
                eligible for either statutory withholding of removal or protection
                under the CAT regulations, an alien must ultimately prove a ``clear
                probability'' of the relevant type of harm--i.e., that the harm is more
                likely than not to occur--upon return to his or her country. See Y.C.,
                741 F.3d at 333; 8 CFR 208.16(b)(2) and (c)(2), 1208.16(b)(2) and
                (c)(2); see also E. Bay Sanctuary, 950 F.3d at 1277 (``A `clear
                probability' of persecution or torture means that it is `more likely
                than not' that applicants will be persecuted upon their removal.'').
                Because an alien's merits burden with respect to claims for CAT
                protection and statutory withholding of removal is higher than that for
                a claim to asylum, it is reasonable for an alien's associated screening
                burden to be correspondingly higher than for an asylum claim. However,
                under the current regulations, an asylum officer conducting an
                interview under 8 CFR 208.30 determines whether there is a
                ``significant possibility'' that the alien would be eligible for
                statutory withholding of removal or protection under the CAT
                regulations. 8 CFR 208.30(e)(2)-(3). In other words, the asylum officer
                applies the same screening standard for fear of persecution under
                asylum and statutory withholding of removal and fear of torture under
                the CAT regulations, despite the fact that ultimate success on the
                merits requires differing standards of proof.
                 The decision to adopt such a regulatory scheme was made on the
                assumption that it would not ``disrupt[] the streamlined process
                established by Congress to circumvent meritless claims.'' Regulations
                Concerning the Convention Against Torture, 64 FR at 8485.
                 But while the INA and the CAT regulations authorize the Attorney
                General and Secretary to provide for consideration of statutory
                withholding of removal claims and claims for CAT protection together
                with asylum claims or other matters that may be considered in removal
                proceedings, the INA does not mandate that approach, see, e.g., 8
                U.S.C. 1103(a)(1) and 1225(b)(1); cf. Foti v. INS, 375 U.S. 217, 229-30
                & n.16 (1963) (emphasizing that administrative regulations and
                procedure may broaden or narrow the subject matter within a court's
                scope of review, including review of orders denying voluntary departure
                or withholding or removal), or that they be considered in the same
                manner. This rule would end the current approach and require asylum
                [[Page 36270]]
                officers conducting interviews under 8 CFR 208.30 to assess whether the
                interviewed aliens can establish a credible fear of persecution in
                asylum claims, a reasonable possibility of persecution in statutory
                withholding of removal claims, and a reasonable possibility of torture
                in claims under the CAT regulations.
                 The Departments' proposal to raise the standards of proof for
                assessing potential eligibility for statutory withholding of removal
                and withholding or deferral of removal under the CAT regulations in the
                ``credible fear'' screening context falls within the scope of the
                authority that Congress has granted to the Secretary and the Attorney
                General to carry out immigration and nationality laws. See HSA; FARRA;
                INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A) (allowing the Attorney General
                to ``decide[ ]'' whether an ``alien's life or freedom would be
                threatened'' before directing removal of the alien); Regulations
                Concerning the Convention Against Torture, 64 FR at 8478, as corrected
                by Regulations Concerning the Convention Against Torture, 64 FR 13881
                (Mar. 23, 1999). Moreover, raising the standards of proof to a
                ``reasonable possibility'' during screening for statutory withholding
                of removal and withholding and deferral of removal under the CAT
                regulations better aligns the initial screening standards of proof with
                the higher standards used to determine whether aliens are in fact
                eligible for these forms of protection before immigration judges.
                Unlike in the context of asylum determinations, in which the ``well-
                founded fear'' standard is used, both in the statutory withholding and
                CAT withholding or deferral of removal contexts, immigration judges
                apply the higher ``more likely than not'' standard. See 8 CFR 1208.16-
                1208.17.
                 The ``reasonable possibility'' standard has long been used for fear
                determinations made under 8 CFR 208.31 and 8 CFR 1208.31, which cover
                certain classes of aliens who are ineligible for asylum but who are
                eligible for statutory withholding of removal and protection under the
                CAT regulations. See 8 CFR 208.31(a) and (c), 1208.31(a) and (c); see
                also INA 238(b)(5), 8 U.S.C. 1228(b)(5); INA 241(a)(5), 8 U.S.C.
                1231(a)(5). ``This * * * screening process is modeled on the credible-
                fear screening process, but requires the alien to meet a higher
                screening standard.'' Regulations Concerning the Convention Against
                Torture, 64 FR at 8485; see also Garcia v. Johnson, No. 14-CV-01775,
                2014 WL 6657591, at *2 (N.D. Cal. Nov. 21, 2014) (describing the aim of
                the regulations as providing ``fair and efficient procedures'' in
                reasonable fear screening that would comport with U.S. international
                obligations).
                 Significantly, when establishing the ``reasonable fear'' screening
                process, DOJ explained that the two affected categories of aliens
                should be screened based on the higher reasonable fear standard
                because, ``[u]nlike the broad class of arriving aliens who are subject
                to expedited removal, these two classes of aliens are ineligible for
                asylum,'' and may be entitled only to statutory withholding of removal
                or protection under the CAT regulations. Regulations Concerning the
                Convention Against Torture, 64 FR at 8485. ``Because the standard for
                establishing the likelihood of harm related to these forms of
                protection (a clear probability of persecution or torture) is
                significantly higher than the standard for asylum (a well-founded fear
                of persecution), the screening standard adopted for initial
                consideration of withholding and deferral requests in these contexts is
                also higher.'' Id.
                 The standard's long use evidences that it is consistent with the
                United States' non-refoulement obligations and would not prevent aliens
                entitled to protection under the CAT regulations from receiving it.
                Drawing on the established framework for considering whether to grant
                statutory withholding of removal or CAT protection in the reasonable
                fear context, this rule would establish a bifurcated screening process
                in which aliens subject to expedited removal will be screened for
                asylum under the ``significant possibility'' standard, and screened for
                statutory withholding of removal or CAT protection under the
                ``reasonable possibility'' standard.
                 The Departments also propose to amend 8 CFR 208.30, 8 CFR 1208.30,
                and 8 CFR 1003.42 to refer to the screenings of aliens in expedited
                removal proceedings and of stowaways for statutory withholding of
                removal as ``reasonable possibility of persecution'' determinations and
                the screening for withholding and deferral of removal under the CAT
                regulations as ``reasonable possibility of torture'' determinations, in
                order to avoid confusion between the different standards of proof. By
                proposing these amendments, the Departments seek to maintain
                operational efficiency by differentiating between screenings for forms
                of relief, including asylum under 8 CFR 208.30, and screenings for only
                statutory withholding of removal and withholding and deferral of
                removal under the CAT regulations under 8 CFR 208.31, because, as noted
                above, the two screenings apply to different populations of aliens.
                Currently, DHS asylum officers conduct screenings under a ``credible
                fear'' standard for, inter alia, stowaways and aliens in expedited
                removal proceedings who express a fear of persecution or torture, a
                fear of return, or an intention to apply for asylum. See 8 CFR
                208.30(a), 1208.30(a). DHS asylum officers conduct screenings under a
                ``reasonable fear'' standard for aliens who express a fear of
                persecution or torture and who have been issued an administrative
                removal order under section 238 of the INA, 8 U.S.C. 1228, due to an
                aggravated felony conviction or who are subject to a reinstated removal
                order under section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5). See 8
                CFR 208.31(a), 1208.31(a). Accordingly, the Departments seek to make
                technical edits by using the term ``reasonable possibility'' as the
                legal standard and using ``reasonable fear'' only to refer to
                proceedings under 8 CFR 208.31 and 8 CFR 1208.31. Use of the term
                ``reasonable possibility'' rather than the term ``reasonable fear''
                when discussing statutory withholding of removal and CAT protection
                screening determinations under 8 CFR 208.30, 8 CFR 1208.30, and 8 CFR
                1003.42 will prevent confusion over which type of analysis is at issue.
                 In conjunction with the edits proposed to DHS's regulation in 8 CFR
                208.30, DOJ proposes edits to 8 CFR 1208.30 related to the legal
                standard of review. Currently, after an asylum officer determines that
                an alien lacks a credible fear of persecution or torture, the
                regulation provides that an immigration judge in EOIR then reviews that
                determination under the credible fear standard. 8 CFR 208.30(g),
                1208.30(g). DHS's proposed ``reasonable possibility'' screening
                standard for statutory withholding of removal and CAT protection claims
                is a mismatch for EOIR's current regulation, which does not provide for
                a reasonable possibility review process in the expedited removal
                context. Therefore, DOJ proposes to modify 8 CFR 1208.30(g) to clarify
                that credible fear of persecution determinations will continue to be
                reviewed under a ``credible fear'' standard, but screening
                determinations for eligibility for statutory withholding of removal and
                protection under the CAT regulations will be reviewed under a
                ``reasonable possibility'' standard.
                 Additionally, to clarify terminology in 8 CFR 208.30(d)(2), mention
                of the Form M-444, Information about Credible Fear Interview in
                Expedited Removal Cases, would be replaced with mention of relevant
                information regarding the ``credible fear'' screening process. This
                [[Page 36271]]
                change would clarify that DHS may relay information regarding screening
                for a reasonable possibility of persecution and a reasonable
                possibility of torture, in addition to a credible fear of persecution.
                 Under the proposed rule, the burden is on the alien to show that
                there is a reasonable possibility that he or she would be persecuted
                because of his or her race, religion, nationality, membership in a
                particular social group, or political opinion if removed to the country
                of removal. Similarly, the burden is on the alien to show there is a
                reasonable possibility that he or she would be tortured in the country
                of removal. As a result, the alien must demonstrate a reasonable
                possibility that he or she will suffer severe pain or suffering,
                whether physical or mental, in the country of removal and a reasonable
                possibility that the feared harm would fall within the definition of
                torture set forth in 8 CFR 208.18(a)(1)-(8) and 8 CFR 1208.18(a)(1)-
                (8).
                 A ``reasonable possibility'' standard is equivalent to the ``well-
                founded fear'' standard in section 101(a)(42) of the Act, 8 U.S.C.
                1101(a)(42), which is used to determine ultimate eligibility for
                asylum. See I.N.S. v. Stevic, 467 U.S. 407, 424-25 (1984); 8 CFR
                208.13(b)(2)(i)(B), 1208.13(b)(2)(i)(B). The ``well-founded fear''
                standard is lower than the ``more likely than not'' standard ultimately
                required to establish the likelihood of future harm for statutory
                withholding of removal and protection under the CAT regulations.
                Indeed: ``[o]ne can certainly have a well-founded fear of an event
                happening when there is less than a 50% chance of the occurrence taking
                place.'' INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).
                 While lower than the ``clear probability'' standard governing the
                merits determination for statutory withholding of removal and
                withholding and deferral of removal under the CAT regulations, the
                ``reasonable possibility'' standard is a well-established standard of
                proof that is an appropriate screening standard to identify those who
                have meaningful claims to such protection. See Matter of Mogharrabi, 19
                I&N Dec. 439, 440-46 (BIA 1987) (distinguishing the ``reasonable
                possibility'' and ``more likely than not'' standards). Determining a
                reasonable possibility of persecution does not rest on the statistical
                possibility of persecution, but rather on whether the applicant's fear
                is based on facts that would lead a reasonable person in similar
                circumstances to fear persecution. See id. at 445.
                 For a number of reasons, the Departments do not believe that this
                change would implicate reliance interests. First, the ultimate
                eligibility standards remain the same. Second, it is exceedingly
                unlikely that aliens seek statutory withholding of removal or
                protection under the CAT regulations based on the applicable standard
                of proof. Third, the proposed change would provide numerous benefits.
                Raising the standards of proof to a ``reasonable possibility'' for the
                screening of aliens seeking statutory withholding of removal and CAT
                protection would allow the Departments to better screen out non-
                meritorious claims and focus limited resources on claims much more
                likely to be determined to be meritorious by an immigration judge.
                Adopting a higher standard for statutory withholding and CAT screenings
                would not hinder the streamlined process envisioned for expedited
                removal. Asylum officers already receive extensive training and
                guidance on applying the ``reasonable possibility'' standard in other
                contexts because they are determining whether a reasonable possibility
                of persecution or torture exists in reasonable fear determinations
                pursuant to 8 CFR 208.31. In some cases, asylum officers would need to
                spend additional time eliciting more detailed testimony from aliens to
                account for the higher standard of proof; however, the overall impact
                on the time asylum officers spend making screening determinations would
                be minimal. The procedural aspects of making screening determinations
                regarding fear of persecution and of torture would remain largely the
                same. Moreover, using a higher standard of proof in the screening
                context for those seeking statutory withholding of removal or
                protection under the CAT regulations in the immigration courts allows
                the Departments to more efficiently and promptly distinguish between
                aliens whose claims are more likely or less likely to ultimately be
                meritorious.
                 DHS also proposes in 8 CFR 208.30(e)(1) to interpret the
                ``significant possibility'' standard that Congress established in
                section 235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v). DHS's
                proposal would serve to promote greater clarity and transparency in
                credible fear of persecution determinations.
                 As stated in proposed in 8 CFR 208.30(e)(1), ``significant
                possibility'' means a substantial and realistic possibility of
                succeeding. As discussed above, this proposed definition of
                ``significant possibility'' is consistent with both case law and
                existing policy and practice, and allows relevant parties, including
                aliens, consultants, and legal representatives, to better understand
                the standard of proof that applies to credible fear of persecution
                claims. This definition is also consistent with congressional intent.
                The 104th Congress chose a screening standard ``intended to be a low
                screening standard for admission into the usual full asylum process.''
                142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement of Senate
                Judiciary Committee Chairman Orrin Hatch). Originally, the Senate bill
                had proposed a ``determination of whether the asylum claim was
                `manifestly unfounded,' while the House bill applied a `significant
                possibility' standard coupled with an inquiry into whether there was a
                substantial likelihood that the alien's statements were true.'' Id. In
                IIRIRA, Congress then ``struck a compromise by rejecting the higher
                standard of credibility included in the House bill.'' Id. The House's
                ``significant possibility'' standard is lower than the ``more probable
                than not'' language in the original House version. 142 Cong. Rec.
                H11081 (daily ed. Sept. 25, 1996) (statement of House Judiciary
                Committee Chairman Henry Hyde). The proposed regulation is thus
                consistent with congressional intent because it defines ``significant
                possibility'' in a way that ensures that the standard does not reach
                the level of more likely than not. Overall, DHS's effort will
                contribute to ensuring consistency in making credible fear of
                persecution determinations.
                5. Proposed Amendments to the Credible Fear Screening Process
                 The Departments further propose to amend 8 CFR 208.30, 8 CFR
                1208.30, and 8 CFR 1003.42 to make several additional technical and
                substantive amendments regarding fear interviews, determinations, and
                reviews of determinations. The Departments propose to amend 8 CFR
                208.30(a) and 8 CFR 1208.30(a) to clearly state that the respective
                sections describe the exclusive procedures applicable to applicants for
                admission who are found inadmissible pursuant to section 212(a)(6)(C)
                or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), and
                receive ``credible fear'' interviews, determinations, and reviews under
                section 235(b)(1)(B) of the Act, 8 U.S.C. 1225(b)(1)(B).
                 DHS proposes to clarify the existing ``credible fear'' screening
                process in proposed 8 CFR 208.30(b), which states that if an alien
                subject to expedited removal indicates an intention to apply for asylum
                or expresses a fear of
                [[Page 36272]]
                persecution or torture, or a fear of return, an inspecting officer
                shall not proceed further with removal until the alien has been
                referred for an interview with an asylum officer, as provided in
                section 235(b)(1)(A)(ii) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii). The
                proposed rule also states that the asylum officer would screen the
                alien for a credible fear of persecution and, as appropriate, a
                reasonable possibility of persecution or a reasonable possibility of
                torture, and conduct an evaluation and determination in accordance with
                8 CFR 208.9(c), which is consistent with current policy and practice.
                These proposals aim to provide greater transparency and clarity with
                regard to fear screenings.
                 DHS also proposes to include consideration of internal relocation
                in the context of proposed 8 CFR 208.30(e)(1)-(3), which outline the
                procedures for determining whether aliens have a credible fear of
                persecution, a reasonable possibility of persecution, and a reasonable
                possibility of torture. Considering internal relocation in the
                ``credible fear'' screening context is consistent with existing policy
                and practice, and the regulations addressing internal relocation at 8
                CFR 208.16(c)(3)(ii) and 8 CFR 1208.16(c)(3)(ii) (protection under the
                CAT regulations); 8 CFR 208.13(b)(1)(i)(B) and 8 CFR
                1208.13(b)(1)(i)(B) (asylum); and 8 CFR 208.16(b)(1)(i)(B) and 8 CFR
                1208.16(b)(1)(i)(B) (statutory withholding). The regulatory standard
                that governs consideration of internal relocation in the context of
                asylum and statutory withholding of removal adjudications is different
                from the standard that considers internal relocation in the context of
                protection under the CAT regulations. See generally Maldonado v. Lynch,
                786 F.3d 1155, 1163 (9th Cir. 2015) (noting the marked difference
                between the asylum and CAT regulations concerning internal relocation).
                 In addition, the Departments propose to add asylum and statutory
                withholding eligibility bar considerations in proposed 8 CFR
                208.30(e)(1)(iii) and (e)(2)(iii), and 8 CFR 1003.42(d). Currently, 8
                CFR 208.30(e)(5)(i) provides that if an alien, other than a stowaway,
                is able to establish a credible fear of persecution or torture but also
                appears to be subject to one or more of the mandatory eligibility bars
                to asylum or statutory withholding of removal, then the alien will be
                placed in section 240 proceedings. In proposed 8 CFR 208.30(e)(5), DHS
                would require asylum officers to determine (1) whether an alien is
                subject to one or more of the mandatory bars to being able to apply for
                asylum under section 208(a)(2)(B)-(D) of the Act, 8 U.S.C.
                1158(a)(2)(B)-(D), or the bars to asylum eligibility under section
                208(b)(2) of the Act, 8 U.S.C. 1158(b)(2), including any eligibility
                bars established by regulation under section 208(b)(2)(C) of the Act, 8
                U.S.C. 1158(b)(2)(C); \16\ and (2) if so, whether the bar at issue is
                also a bar to statutory withholding of removal and withholding of
                removal under the CAT regulations.\17\ An alien who could establish a
                credible fear of persecution or reasonable possibility of persecution
                but for the fact that he or she is subject to one of the bars that
                applies to both asylum and statutory withholding of removal would
                receive a negative fear determination, unless the alien could establish
                a reasonable possibility of torture, in which case he or she would be
                referred to the immigration court for asylum-and-withholding-only
                proceedings. In those proceedings, the alien would have the opportunity
                to raise whether he or she was correctly identified as being subject to
                the bar(s) to asylum and withholding of removal and also pursue
                protection under the CAT regulations.
                ---------------------------------------------------------------------------
                 \16\ The following classes of aliens are ineligible for asylum:
                Aliens who (1) participated in certain types of persecution; (2)
                have been convicted of a particularly serious crime; (3) have
                committed (or are reasonably believed to have committed) a serious
                nonpolitical crime outside the United States; (4) are a danger to
                the security of the United States; (5) are removable on terrorism-
                related grounds; or (6) were firmly resettled in another country
                prior to arrival in the United States. INA 208(b)(2)(A)(i)-(vi), 8
                U.S.C. 1158(b)(2)(A)(i)-(vi). The Secretary and the Attorney General
                may also by regulation establish additional ineligibilities. INA
                208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). Together, the bars in these
                two subparagraphs are commonly referred to as the mandatory bars to
                a grant of asylum.
                 \17\ The following classes of aliens are ineligible for
                statutory withholding of removal: Aliens who (1) participated in
                certain types of persecution; (2) have been convicted of a
                particularly serious crime; (3) have committed (or are reasonably
                believed to have committed) a serious nonpolitical crime outside the
                United States; or (4) are a danger to the security of the United
                States. INA 241(b)(3)(B)(i)-(iv), 8 U.S.C. 1231(b)(3)(B)(i)-(iv).
                ---------------------------------------------------------------------------
                 Under the current regulations at 8 CFR 208.30(e)(5), aliens who
                establish a credible fear of persecution or torture but appear to be
                subject to one or more of the mandatory bars are referred for section
                240 proceedings. From an administrative standpoint, it is pointless and
                inefficient to adjudicate claims for relief in section 240 proceedings
                when it is determined that an alien is subject to one or more of the
                mandatory bars to asylum or statutory withholding at the screening
                stage. Accordingly, applying those mandatory bars to aliens at the
                ``credible fear'' screening stage would eliminate removal delays
                inherent in section 240 proceedings that serve no purpose and eliminate
                the waste of adjudicatory resources currently expended in vain.
                 If an asylum officer determines, at the ``credible fear'' screening
                stage, that an alien is subject to one or more mandatory bars, the
                alien would, under this rule, be permitted to request review of that
                determination by an immigration judge. See 8 CFR 208.30(g) (current), 8
                CFR 208.30(g) (proposed); see also INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
                1225(b)(1)(B)(iii)(III) (``The Attorney General shall provide by
                regulation and upon the alien's request for prompt review by an
                immigration judge of a determination * * * that the alien does not have
                a credible fear of persecution.'').
                 The bars to asylum eligibility are not identical to the bars to
                statutory withholding eligibility. Compare 8 U.S.C. 1158(b)(2)(A)(i)-
                (vi) (bars to asylum eligibility), with 8 U.S.C. 1231(b)(3)(B)(i)-(iv)
                (bars to withholding of removal eligibility). Under the proposed
                regulations, an alien who is barred from asylum eligibility could be
                found to have a reasonable possibility of persecution in instances in
                which the alien is barred from asylum, but not likewise barred from
                statutory withholding. For instance, if an alien is subject to the firm
                resettlement bar, the alien is barred from asylum eligibility, but not
                barred from statutory withholding eligibility. In such a case, if the
                alien demonstrated a reasonable possibility of persecution, the alien
                would be referred to the immigration judge for asylum-and-withholding-
                only proceedings. The proposed rule would ensure that if an alien has
                established a significant possibility of eligibility for asylum or a
                reasonable possibility of persecution and is not barred from statutory
                withholding eligibility, the alien can appear before an immigration
                judge for consideration of the asylum, statutory withholding, and CAT
                claims. Moreover, this process would retain a mechanism for immigration
                judge review of the determination that the alien is not eligible for
                asylum, as required in section 235(b)(1)(B)(iii) of the Act, 8 U.S.C.
                1225(b)(1)(B)(iii). Thus, the proposed rule would reasonably balance
                the various interests at stake. It would promote efficiency by avoiding
                duplicative administrative efforts while ensuring that those who are
                subject to a mandatory bar receive an opportunity to have the asylum
                officer's finding reviewed by an immigration judge.
                [[Page 36273]]
                 Additionally, under 8 CFR 208.30(e)(5), DHS currently uses (or
                potentially would use, pending the resolution of litigation), a
                ``reasonable fear'' standard (identical to the ``reasonable
                possibility'' standard enunciated in this rule) in procedures related
                to aliens barred from asylum under the two previously mentioned IFRs,
                as described in 8 CFR 208.13(c)(3)-(4). The Departments seek to make
                technical edits in proposed 8 CFR 208.30(e)(5), to change ``reasonable
                fear'' to ``reasonable possibility'' to align the terminology with the
                proposed changes in this rule. Similarly, DOJ proposes to make
                technical edits in 8 CFR 1208.30(g)(1) and 8 CFR 1003.42(d)--both of
                which refer to the ``reasonable fear'' standard in the current version
                of 8 CFR 208.30(e)(5)--to change the ``reasonable fear'' language to
                ``reasonable possibility.'' These edits are purely technical and would
                not amend, alter, or impact the standard of proof applicable to the
                fear screening process and determinations, or review of such
                determinations, associated with the aforementioned bars.
                 Additionally, in proposed 8 CFR 208.2(c)(1), 8 CFR 1208.2(c)(1), 8
                CFR 235.6(a)(2), and 8 CFR 1235.6(a)(2), the Departments are making
                technical edits to replace the term ``credible fear of persecution or
                torture'' with ``a credible fear of persecution, reasonable possibility
                of persecution, or reasonable possibility of torture'' to mirror the
                terminology used in proposed 8 CFR 208.30 and 8 CFR 1208.30. Moreover,
                in proposed 8 CFR 1208.30(g)(2)(iv)(C), DOJ is making a technical edit
                to clarify that stowaways barred from asylum and both statutory and CAT
                withholding of removal may still be eligible for deferral of removal
                under the CAT regulations.
                 The Departments further propose to amend 8 CFR 208.30(g) and 8 CFR
                1208.30(g)(2), which address procedures for negative fear
                determinations for aliens in the expedited removal process. Currently,
                8 CFR 208.30(g) provides that when an alien receives notice of a
                negative determination, the asylum officer inquires whether the alien
                wishes to have an immigration judge review the decision. If that alien
                refuses to indicate whether he or she desires such review, DHS treats
                this as a request for review by an immigration judge. See also 8 CFR
                1208.30(g)(2). In proposed 8 CFR 208.30(g)(1), the Departments seek to
                treat an alien's refusal to indicate whether he or she desires review
                by an immigration judge as declining to request such review. Also, in
                proposed 8 CFR 208.31, the Departments will treat a refusal as
                declining to request review within the context of reasonable fear
                determinations. This proposal aligns with the Departments' interest in
                the expeditious resolution of fear claims, with a focus on those claims
                that are most likely to be meritorious. Given that the alien has been
                informed of his or her right to seek further review and given an
                opportunity to exercise that right, referring an alien to an
                immigration judge based on a refusal to indicate his or her desire
                places unnecessary and undue burdens on the immigration courts.
                 The Departments welcome comments on all aspects of these proposals,
                including the use of asylum-and-withholding-only proceedings, the
                definition of ``significant possibility,'' and the raising of the
                standard for statutory withholding of removal and torture-related
                determinations to ``reasonable possibility.''
                B. Form I-589, Application for Asylum and for Withholding of Removal,
                Filing Requirements
                1. Frivolous Applications
                 Frivolous asylum applications are a costly detriment, resulting in
                wasted resources and increased processing times for an already
                overloaded immigration system. See Angov v. Lynch, 788 F.3d 893, 901-02
                (9th Cir. 2015) (``[Immigration f]raud, forgery and fabrication are so
                common--and so difficult to prove--that they are routinely tolerated. *
                * * [I]f an alien does get caught lying or committing fraud, nothing
                very bad happens to him. * * * Consequently, immigration fraud is
                rampant.''). Under section 208(d)(6) of the INA, 8 U.S.C. 1158(d)(6),
                ``[i]f the Attorney General determines that an alien has knowingly made
                a frivolous application for asylum and the alien has received [the
                notice of privilege of counsel and the consequences of knowingly filing
                a frivolous application], the alien shall be permanently ineligible for
                any benefits under this chapter, effective as of the date of a final
                determination on such application.'' By current regulation, such
                frivolousness determinations may only be made by an immigration judge
                or the BIA. 8 CFR 208.20, 1208.20.
                 For the penalty in section 208(d)(6) of the INA, 8 U.S.C.
                1158(d)(6), to apply, there must be a finding that an alien ``knowingly
                made a frivolous application for asylum'' after receiving the notice
                required by section 208(d)(4)(A), 8 U.S.C 1158(d)(4)(A). In other
                words, the alien's asylum application must be frivolous, the
                application must have been knowingly made--i.e., knowing of its
                frivolous nature--and the alien must have received the notice required
                by section 208(d)(4)(A), 8 U.S.C. 1158(d)(4)(A), at the time of
                filing.\18\ No penalty under this section will be imposed unless all
                three requirements are met. The term ``knowingly'' is not defined in
                either the statute or the current regulations. Consequently, the
                Departments propose to clarify that ``knowingly'' requires either
                actual knowledge of the frivolousness or willful blindness toward it.
                Willful blindness means the alien was aware of a high probability that
                his or her application was frivolous and deliberately avoided learning
                otherwise. This standard is higher than mere recklessness or negligence
                and is consistent with well-established legal principles. See, e.g.,
                Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769-70 (2011).
                The term ``frivolous'' is not defined in the INA.\19\ Prior to the
                enactment of section 208(d)(6) of the INA, 8 U.S.C. 1158(d)(6), a
                frivolous asylum application was defined for purposes of granting
                employment authorization as
                [[Page 36274]]
                one that was ``manifestly unfounded or abusive.'' 8 CFR 208.7 (1995).
                Additional guidance interpreted ``frivolous'' in this context to mean
                ``patently without substance.'' See Grijalva v. Illchert, 815 F. Supp.
                328, 331 (N.D. Cal. 1993) (summarizing prior regulatory and policy
                definitions of frivolousness before the current definition was
                promulgated in 1997). Subsequent to the enactment of section 208(d)(6)
                of the INA, 8 U.S.C. 1158(d)(6), DOJ proposed defining a frivolous
                asylum application for purposes of that provision as one that ``is
                fabricated or is brought for an improper purpose'' before settling on
                the current definition of an application in which ``any of its material
                elements is deliberately fabricated.'' Compare Inspection and Expedited
                Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR 444, 468 (Jan. 3, 1997) (proposed
                rule), with Inspection and Expedited Removal of Aliens; Detention and
                Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,
                62 FR 10312, 10344 (Mar. 6, 1997) (final rule). Although the final rule
                did not explain why DOJ altered its proposed definition of
                ``frivolous,'' the proposed rulemaking noted that the purpose of a
                definition of ``frivolous'' was ``to discourage applicants from making
                patently false claims.'' Inspection and Expedited Removal of Aliens;
                Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
                Procedures, 62 FR at 447. In light of this regulatory definition,
                subsequent case law has noted that ``the term `fraudulent' may be more
                appropriate than the term `frivolous' when applied to a questionable
                asylum application.'' Matter of Y-L-, 24 I&N Dec. 151, 155 n.1 (BIA
                2007) (citing Barreto-Claro v. U.S. Att'y Gen., 275 F.3d 1334, 1339
                n.11 (11th Cir. 2001), which observed that ``Fraudulent'' would be a
                more appropriate modifier than ``Frivolous'' in the statutory heading
                of section 208(d)(6) of the INA, 8 U.S.C. 1158(d)(6)). In short, the
                concept of a frivolous asylum application as understood by the
                Departments has encompassed a number of different, related concerns
                over the years--i.e., applications that are unfounded, abusive,
                improperly brought, fabricated, or fraudulent--but not all of those are
                necessarily represented in the current regulatory definition premised
                solely on fabricated material elements.
                ---------------------------------------------------------------------------
                 \18\ The asylum application, Form I-589, contains a written
                notice of the consequences of making a frivolous asylum application
                pursuant to section 208(d)(4)(A) of the INA, 8 U.S.C. 1158(d)(4)(A),
                and that notice is sufficient to satisfy the third requirement of
                section 208(d)(6), 8 U.S.C. 1158(d)(6). See, e.g., Niang v. Holder,
                762 F.3d 251, 254-55 (2d Cir. 2014) (``Because the written warning
                provided on the asylum application alone is adequate to satisfy the
                notice requirement under 8 U.S.C. 1158(d)(4)(A) and because Niang
                signed and filed his asylum application containing that warning, he
                received adequate notice warning him against filing a frivolous
                application.''). Thus, every alien who signs and files an asylum
                application has received the notice required by section 208(d)(4)(A)
                of the INA, 8 U.S.C. 1158(d)(4)(A).
                 \19\ Depending on context, frivolous may mean, inter alia,
                ``[l]acking in high purpose; trifling, trivial, and silly'' or
                ``[l]acking a legal basis or legal merit; manifestly insufficient as
                a matter of law.'' Black's Law Dictionary (11th ed. 2019). Frivolous
                filings abuse the judicial process. See Des Vignes v. Dep't of
                Transp., FAA, 791 F.2d 142, 146 (Fed. Cir. 1986) (holding that
                frivolous filings abuse the judicial process by wasting the time and
                limited resources of adjudicators, unnecessarily expend taxpayer
                resources, and deny the availability of adjudicatory resources to
                deserving litigants). The Departments accordingly believe that
                ``frivolous'' is a term that is broad enough to encompass not only
                applications that are fraudulent, but also those that are plainly
                without legal merits. Both kinds of applications seriously undermine
                the adjudicatory process, yet although none of these conceptions of
                frivolousness is precluded by INA 208(d)(6), 8 U.S.C. 1158(d)(6),
                not all of them are captured by the current regulatory definition of
                frivolousness. There is no indication that Congress intended a
                narrow construction of 8 U.S.C. 1158(d)(6), and a narrow view of a
                frivolous asylum application is at odds with its intent to
                discourage improper applications. As discussed, infra, the proposed
                rule broadens the regulatory definition of a frivolous asylum
                application, provided the application was knowingly filed and the
                applicant received the appropriate notice, to more fully and
                accurately capture a broader spectrum of behavior that abuses the
                judicial process.
                ---------------------------------------------------------------------------
                 The statutory text does not provide a definition of ``frivolous,''
                expressly restrict how it may be defined, or compel a narrow definition
                limited solely to the deliberate fabrication of material elements,
                though the penalty in section 208(d)(6) of the INA, 8 U.S.C.
                1158(d)(6), only applies if a frivolous application is knowingly made--
                i.e., with knowledge or willful blindness of its frivolousness--after
                an alien has received notice of the consequences of filing a frivolous
                application. The current regulatory definition of ``frivolous'' related
                to asylum applications, which limits the concept of frivolousness to
                deliberate fabrication of material elements, was promulgated in 1997
                with the intent ``to discourage applicants from making patently false
                claims,'' but it did not address other types of frivolousness, such as
                abusive filings, filings for an improper purpose, or patently unfounded
                filings, or explain why these considerations of frivolousness were
                either no longer necessary or undesirable. Inspection and Expedited
                Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR at 468 (proposing to define a
                frivolous application as one that ``is fabricated or is brought for an
                improper purpose''); Inspection and Expedited Removal of Aliens;
                Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
                Procedures, 62 FR at 10344 (ultimately defining an asylum application
                as frivolous if ``any of its material elements is deliberately
                fabricated,'' but not explaining the basis for the change).
                 Consequently, the current, narrowly-drawn definition does not
                appear sufficient to capture the full spectrum of claims that would
                ordinarily be deemed ``frivolous,'' nor has it been fully successful in
                its stated intent of discouraging knowingly and patently false claims.
                This result can be seen in several cases where applications that one
                may ordinarily understand as ``frivolous'' are nonetheless not captured
                by the current narrow regulatory definition. See, e.g., Scheerer v.
                U.S. Att'y Gen., 445 F.3d 1311, 1317-18 & n.10 (11th Cir. 2006)
                (reversing a frivolousness finding regarding a claim based on alleged
                fear of persecution due to the applicant's belief that the Holocaust
                did not occur); L-T-M- v. Whitaker, 760 F. App'x 498, 501 (9th Cir.
                2019) (fabricated material evidence, including fraudulent
                documentation, does not make an asylum application frivolous because
                the regulatory definition of frivolousness requires the fabrication of
                an element and evidence is not an element).
                 L-T-M-, in particular, demonstrates the limitations of the current
                definition in discouraging false claims. Not only does it run contrary
                to numerous other federal court decisions upholding frivolousness
                findings based on fabricated evidence--see, e.g., Selami v. Gonzales,
                423 F.3d 621, 626-27 (6th Cir. 2005) (affirming a frivolousness finding
                based on the submission of a fraudulent newspaper article); Ursini v.
                Gonzales, 205 F. App'x 496, 497-98 (9th Cir. 2006) (affirming a
                frivolousness finding based on the submission of false documents);
                Diallo v. Mukasey, 263 F. App'x 146, 150 (2d Cir. 2008) (affirming a
                frivolousness finding based on the submission of a fraudulent
                vaccination card); Shllaku v. Gonzales, 139 F. App'x 700, 702-03 (6th
                Cir. 2005) (affirming a frivolousness finding based on the submission
                of counterfeit documents)--but its potential to lead to absurd results
                by allowing claims supported by knowingly fabricated material evidence
                to escape the penalty called for in INA 208(d)(6), 8 U.S.C. 1158(d)(6),
                undermines the intent of that provision to discourage false claims. The
                proposed rule would revise the current definition of ``frivolous'' to
                broaden it and bring it more in line with prior understandings of
                frivolous applications, including applications that are clearly
                unfounded, abusive, or involve fraud, and better effectuate the intent
                of section 208(d)(6) of the INA, 8 U.S.C. 1158(d)(6), to discourage
                applications that make patently meritless or false claims.
                 Accordingly, the Departments propose to amend the definition of
                ``frivolous'' to ensure that manifestly unfounded or otherwise abusive
                claims are rooted out and to ensure that meritorious claims are
                adjudicated more efficiently so that deserving applicants receive
                benefits in a timely fashion. The revised regulation also reflects
                Congress's concern with applications that are knowingly frivolous at
                the time of filing, regardless of whether an alien subsequently
                retracts or withdraws the application. See INA 208(d)(4) and (6), 8
                U.S.C. 1158(d)(4) and (6); Matter of X-M-C-, 25 I&N Dec. 322, 325-27
                (BIA 2010) (withdrawal of asylum application does not preclude finding
                that the application is knowingly frivolous); see also Kulakchyan v.
                Holder, 730 F.3d 993, 996 (9th Cir. 2013) (approving of Matter of X-M-
                C-); Mei Juan Zheng v. Holder, 672 F.3d 178, 184 (2d Cir. 2012) (same).
                 Existing regulations provide that immigration judges and the BIA
                may make findings that an alien has knowingly filed a frivolous asylum
                application. See 8 CFR 208.20, 8 CFR 1208.20. The Departments propose
                to amend these regulations to allow asylum officers adjudicating
                affirmative
                [[Page 36275]]
                asylum applications to make findings that aliens have knowingly filed
                frivolous asylum applications and to refer the cases on that basis to
                immigration judges (for aliens not in lawful status) or to deny the
                applications (for aliens in lawful status). For an alien not in lawful
                status, a finding by an asylum officer that an asylum application is
                frivolous would not render an alien permanently ineligible for
                immigration benefits unless an immigration judge or the BIA
                subsequently makes a finding of frivolousness upon de novo review of
                the application as stated in the current and proposed 8 CFR 208.20 and
                8 CFR 1208.20. Asylum officers would apply the same definition used by
                immigration judges and the BIA as proposed by this rule. Id. As this
                proposed rule would overrule Matter of Y-L-, and revise the definition
                of ``frivolous,'' USCIS would not be required to provide opportunities
                for applicants to address discrepancies or implausible aspects of their
                claims in all cases when the asylum officer determines that sufficient
                opportunity was afforded to the alien. As with any other affirmative
                asylum case referred to the immigration judge by an asylum officer, the
                immigration judge would review the asylum application de novo.
                 By allowing asylum officers to find asylum applications to be
                frivolous, the Departments seek to enhance the officers' ability to
                identify and efficiently root out frivolous applications, and to deter
                the filing of such applications in the first place. The current
                practice for handling frivolous asylum applications at the affirmative
                asylum application stage generally involves asylum officers making
                negative credibility determinations. Asylum officers may refer asylum
                applications to the immigration courts based on negative credibility
                findings, but not solely based on frivolousness.
                 Making a credibility determination, positive or negative, involves
                conducting an asylum interview. If the asylum officer identifies
                credibility concerns, such as inconsistencies or lack of detail, the
                asylum officer confronts the applicant with these concerns during the
                interview and gives the applicant an opportunity to explain. If the
                asylum officer decides to make a negative credibility determination,
                the officer prepares a written assessment that explains the credibility
                concerns, such as inconsistencies, lack of detail, or both, and
                discusses the reasonableness of the applicant's explanations and the
                relevancy of the credibility concerns to the claim. See INA
                208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii); Matter of B-Y-, 25 I&N
                Dec. 236, 242 (BIA 2010) (``In making an adverse credibility
                determination, the opportunity for explanation requires that an
                Immigration Judge not rely on inconsistencies that take a respondent by
                surprise. See Ming Shi Xue v. BIA, 439 F.3d 111 (2d Cir. 2006) * * *.
                If an inconsistency is obvious or glaring or has been brought to the
                attention of the respondent during the course of the hearing, however,
                there is no requirement that a separate opportunity for explanation be
                provided prior to making the adverse credibility determination. See Ye
                v. Dep't of Homeland Sec., 446 F.3d 289 (2d Cir. 2006).'').
                 The proposed amendments to the regulations would give asylum
                officers a valuable and more targeted mechanism for handling frivolous
                asylum applications. As noted above, when referring cases to the
                immigration courts based on negative credibility determinations, asylum
                officers may flag issues related to frivolousness for immigration
                judges to consider, but they cannot refer frivolous cases or deny
                applications solely on that basis. Allowing asylum officers to refer or
                deny frivolous cases solely on that basis would strengthen USCIS's
                ability to root out frivolous applications more efficiently, deter
                frivolous filings, and ultimately reduce the number of frivolous
                applications in the asylum system. These amendments would help the
                Departments better allocate limited resources and time and more
                expeditiously adjudicate meritorious asylum claims.
                 Moreover, under this proposed rule, if an asylum officer identifies
                indicators of frivolousness in an asylum application, the asylum
                officer would focus more during the interview on matters that may be
                frivolous. And an immigration judge who receives an asylum application
                with a frivolousness finding by an asylum officer would have a more
                robust and developed written record focused on frivolous material
                elements to help inform his or her ultimate decision. Thus, an asylum
                officer's finding that an application is frivolous would help improve
                the efficiency and integrity of the overall adjudicatory process.
                 Asylum officers are well prepared to put the proposed regulatory
                changes into operation. They receive extensive training on spotting
                indicators of frivolousness, fraud, and credibility concerns, including
                on reviewing and assessing written materials that may raise such
                concerns. In addition, asylum officers receive training on how to
                appropriately identify, raise, and address credibility and
                frivolousness concerns during interviews with asylum applicants. Thus,
                asylum officers are well equipped to adjudicate frivolousness in the
                affirmative asylum context.
                 Furthermore, the Departments' proposed regulatory changes are
                consistent with congressional intent. When the 104th Congress amended
                the procedures used to consider asylum applications through IIRIRA, it
                sought ``to reduce the likelihood that fraudulent or frivolous
                applications will enable deportable or excludable aliens to remain in
                the U.S. for substantial periods.'' S. Rept. No. 104-249, at 2 (1996).
                Allowing asylum officers, in addition to immigration judges and the
                BIA, to find filings frivolous would help deter aliens from filing
                frivolous asylum applications and reduce the likelihood that aliens
                with frivolous applications will be released into the United States for
                substantial periods of time, usually with work authorization.
                 The Departments also propose changes to 8 CFR 208.20 and 8 CFR
                1208.20 to expand and clarify what circumstances would require an
                immigration judge or the BIA (and now asylum officers) to find an
                asylum application to be knowingly frivolous.\20\ The proposed rule
                maintains the current definition of ``frivolous'' such that if
                knowingly made, an asylum application would be properly considered
                frivolous if the adjudicator determines that it includes a fabricated
                material element. The proposed rule also would provide, consistent with
                case law, that if knowingly made, an asylum application premised on
                false or fabricated evidence, unless it would be granted without the
                fabricated evidence, may also be found frivolous.\21\ See, e.g.,
                Selami, 423 F.3d at 626-27; Ursini, 205
                ---------------------------------------------------------------------------
                 \20\ For purposes of 8 CFR 208.20 and 8 CFR 1208.20, an alien
                knowingly files a frivolous asylum application if the alien filed
                the application knowing that it was frivolous intentionally and
                voluntarily, and not because of ignorance, mistake, accident, or
                carelessness, or the alien filed the application deliberately
                ignoring the fact that the application was frivolous. It is the
                alien's duty to read the asylum application before signing it. If an
                alien acts through an agent, the alien will be deemed responsible
                for actions of the agent if the agent acts with apparent authority.
                If the alien has signed the asylum application, he or she shall be
                presumed to have knowledge of its contents regardless of his or her
                failure to read and understand its contents. 8 CFR 208.3(c)(2),
                1208.3(c)(2).
                 \21\ The submission of fabricated evidence may still be
                sufficient to deny the application, Matter of O-D-, 21 I&N Dec.
                1079, 1083 (BIA 1998), but it will not warrant a frivolousness
                finding if the application without the evidence is also approvable.
                ---------------------------------------------------------------------------
                [[Page 36276]]
                F. App'x at 497-98; Diallo, 263 F. App'x at 150; Shllaku, 139 F. App'x
                at 702-03.
                 Consistent with the concept of frivolousness as encompassing claims
                that are patently without substance or merit, an application, if
                knowingly made, would also be considered frivolous if applicable law
                clearly prohibits the grant of asylum. Of course, simply because an
                argument or claim is unsuccessful does not mean that it can be
                considered frivolous. Matter of Cheung, 16 I&N Dec. 244, 245 (BIA
                1977). Neither could reasonable arguments to extend, modify, or reverse
                the law as it stands. Cf. Fed. R. Civ. P. 11(b)(2) (``By presenting to
                the court a pleading, written motion, or other paper--whether by
                signing, filing, submitting, or later advocating it--an attorney or
                unrepresented party certifies that to the best of the person's
                knowledge, information, and belief, formed after an inquiry reasonable
                under the circumstances * * * the claims, defenses, and other legal
                contentions are warranted by existing law or by a nonfrivolous argument
                for extending, modifying, or reversing existing law or for establishing
                new law''). Finally, if knowingly made, an application filed without
                regard to the merits of the claim would be considered frivolous. See
                Cooter & Gell v. Hartmax, Corp., 496 U.S. 384, 398 (1990) (``The filing
                of complaints, papers, or other motions without taking the necessary
                care in their preparation is a separate abuse of the judicial system,
                subject to separate sanction. * * * Baseless filing puts the machinery
                of justice in motion, burdening courts and individuals alike with
                needless expense and delay.''). Such a sanction is fully consistent
                with the abusive nature of such applications, which are often filed for
                an ulterior purpose, such as being placed in removal proceedings,
                without regard to the merits of the application itself. Cf. Matter of
                Jaso and Ayala, 27 I&N Dec. 557, 558 (BIA 2019) (affirming the
                dismissal of immigration proceedings where a respondent filed an asylum
                application solely for the purpose of being placed in immigration
                proceedings to seek some other form of relief, recognizing that ``it is
                an abuse of the asylum process to file a meritless asylum application
                with the USCIS for the sole purpose of seeking cancellation of removal
                in the Immigration Court''); \22\ Inspection and Expedited Removal of
                Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR at 447 (proposing to define an
                application as ``frivolous'' if, inter alia, it is ``brought for an
                improper purpose'' in order to discourage applicants from making false
                asylum claims).\23\
                ---------------------------------------------------------------------------
                 \22\ Although the Board's decision affirmed an immigration
                judge's authority to dismiss such a case upon motion by DHS, such
                abusive filings for an improper purpose also warrant sanctioning as
                frivolous if the proceedings go forward.
                 \23\ A leading immigration advocacy group has also noted the
                risk of a frivolousness finding in situations in which an alien
                makes a false claim to asylum solely to obtain a Notice to Appear
                and be placed in removal proceedings in order to seek another form
                of relief. See American Immigration Lawyers Association, Ethical
                Considerations Related to Affirmatively Filing an Application for
                Asylum for the Purpose of Applying for Cancellation of Removal and
                Adjustment of Status for a Nonpermanent Resident at 4 (2016),
                https://www.aila.org/practice/ethics/ethics-resources/2016-2019/submitting-an-affirmative-asylum-app-ethical-qs (describing as a
                ``classic instance'' of asylum frivolousness a situation in which an
                alien willfully creates false facts for an asylum application in
                order to be placed in removal proceedings to apply for another type
                of relief).
                ---------------------------------------------------------------------------
                 Further, section 208(d)(4)(A) of the INA, 8 U.S.C. 1158(d)(4)(A),
                requires that aliens receive notice of the consequences of knowingly
                filing a frivolous application. Under the proposed regulation, an
                immigration judge would not need to provide an additional opportunity
                to an alien to account for issues of frivolousness with the claim
                before determining that the application is frivolous, as long as the
                required notice was provided. The statute is clear on its face that the
                only procedural requirement for finding a frivolous asylum application
                to be knowingly made is the provision of notice under section
                208(d)(4)(A) of the INA, 8 U.S.C. 1158(d)(4)(A). See INA 208(d)(6), 8
                U.S.C. 1158(d)(6) (``If the Attorney General determines that an alien
                has knowingly made a frivolous application for asylum and the alien has
                received the notice under paragraph (4)(A), the alien shall be
                permanently ineligible for any benefits under this chapter * * *.'');
                see also Ndibu v. Lynch, 823 F.3d 229, 235 (4th Cir. 2016) (describing
                the statute as ``clear and unambiguous''). Furthermore, an alien is on
                notice at the time of filing the application that it may be deemed
                frivolous. Niang, 762 F.3d at 254-55 (``Because the written warning
                provided on the asylum application alone is adequate to satisfy the
                notice requirement under 8 U.S.C. 1158(d)(4)(A) and because Niang
                signed and filed his asylum application containing that warning, he
                received adequate notice warning him against filing a frivolous
                application.''). Thus, an alien is already aware of the potential
                ramifications of filing a frivolous application. Moreover, an alien--
                who presumably knows whether his or her application is fraudulent or
                meritless--will naturally have an opportunity to account for any issues
                during the alien's removal proceeding if the alien so chooses.
                Consequently, there is no legal or operational reason to require a
                second warning and a third or fourth opportunity to address problematic
                aspects of the claim that may warrant a sanction for frivolousness.
                 The Departments note that the BIA has previously explained that
                ``it would be a good practice for an Immigration Judge who believes
                that an applicant may have submitted a frivolous asylum application to
                bring this concern to the attention of the applicant prior to the
                conclusion of proceedings.'' Matter of Y-L-, 24 I&N Dec. at 159-60. In
                Matter of Y-L-, however, the BIA interpreted the regulatory provision
                at 8 CFR 1208.20, which provides that an EOIR adjudicator may only make
                this finding if he ``is satisfied that the applicant, during the course
                of the proceedings, has had sufficient opportunity to account for any
                discrepancies or implausible aspects of the claim.'' Id. at 159. There
                is no indication that the BIA's decision was meant to elaborate on any
                statutory procedural requirements. Cf. Matter of B-Y-, 25 I&N Dec. at
                242 (``When the required frivolousness warnings have been given to the
                respondent prior to the start of a merits hearing, the Immigration
                Judge is not required to afford additional warnings or seek further
                explanation in regard to inconsistencies that have become obvious to
                the respondent during the course of the hearing.''). The proposed
                regulation does not contain the 8 CFR 208.20 or 8 CFR 1208.20 provision
                because the Departments believe the current regulatory framework has
                not successfully achieved the Departments' goal of preventing knowingly
                frivolous applications that delay the adjudication of other asylum
                applications that may merit relief. Moreover, an alien who files an
                asylum application already both knows whether the application is
                fraudulent or meritless and is aware of the potential ramifications of
                knowingly filing a frivolous application. The alien is therefore
                already on notice and has an opportunity to account for any issues with
                the claim without the immigration judge having to bring the issues to
                the alien's attention. Thus, there is no reason to require multiple
                opportunities for an alien to disavow or explain a knowingly frivolous
                application, and the current requirement, in essence, creates a moral
                hazard that encourages aliens to pursue false asylum applications
                because no penalty can attach until the alien is caught and
                [[Page 36277]]
                given an opportunity to retract the claim. See Angov, 788 F.3d at 901-
                02 (``[Immigration f]raud, forgery and fabrication are so common--and
                so difficult to prove--that they are routinely tolerated. * * * [I]f an
                alien does get caught lying or committing fraud, nothing very bad
                happens to him. * * * Consequently, immigration fraud is rampant.'').
                Accordingly, the proposed rule would overrule Matter of Y-L- to the
                extent that the two may conflict.\24\
                ---------------------------------------------------------------------------
                 \24\ The proposed rule would also overrule any other cases that
                rely on the same reasoning as Matter of Y-L-, to the extent that
                there is a conflict between the proposed rule and case law regarding
                frivolousness findings. See, e.g., Matter of B-Y-, 25 I&N Dec. at
                241 (requiring explicit deliberateness/materiality findings).
                ---------------------------------------------------------------------------
                 Finally, in order to ameliorate the consequences of knowingly
                filing a frivolous application in appropriate cases, the Departments
                propose a mechanism that would allow certain aliens to withdraw, with
                prejudice, their applications by disclaiming the applications;
                accepting an order of voluntary departure for a period of no more than
                30 days; withdrawing, also with prejudice, all other applications for
                relief or protection; and waiving any rights to file an appeal, motion
                to reopen, and motion to reconsider. In such instances the aliens would
                not be subject to a frivolousness finding and could avoid the penalties
                associated with such a finding.\25\ Finally, the proposed regulation
                does not change current regulatory language that makes clear that a
                frivolousness finding does not bar an alien from seeking statutory
                withholding of removal or protection under the CAT regulations.
                ---------------------------------------------------------------------------
                 \25\ This safety-valve provision would modify Matter of X-M-C-
                by providing a limited exception to the general rule that an asylum
                application may still be deemed frivolous even if it is withdrawn.
                ---------------------------------------------------------------------------
                2. Pretermission of Legally Insufficient Applications
                 Additionally, DOJ proposes to add a new paragraph (e) to 8 CFR
                1208.13 to clarify that immigration judges may pretermit and deny an
                application for asylum, statutory withholding of removal, or protection
                under the CAT regulations if the alien has not established a prima
                facie claim for relief or protection under the applicable laws and
                regulations. See Matter of E-F-H-L-, 27 I&N Dec. 226, 226 (A.G. 2018);
                see also Matter of A-B-, 27 I&N Dec. 316, 340 (A.G. 2018) (``Of course,
                if an alien's asylum application is fatally flawed in one respect--for
                example, for failure to show membership in a proposed social group * *
                *--an immigration judge or the Board need not examine the remaining
                elements of the asylum claim.''). Such a decision would be based on the
                Form I-589 application itself and any supporting evidence.
                 The BIA previously addressed the issue of adjudicating applications
                for asylum without testimony in Matter of Fefe. 20 I&N Dec. 116 (BIA
                1989). In Matter of Fefe, the BIA stated ``[a]t a minimum, we find that
                the regulations require that an applicant for asylum and withholding
                take the stand, be placed under oath, and be questioned as to whether
                the information in the written application is complete and correct.''
                Id. at 118. But the regulations at issue in Matter of Fefe are no
                longer in effect. The only other prior BIA decision to address the
                matter was subsequently vacated by the Attorney General, and no longer
                has any precedential effect. See Matter of E-F-H-L-, 26 I&N Dec. 319,
                322 (BIA 2014), vacated on other grounds by 27 I&N Dec. 226 (A.G.
                2018).
                 Current regulations require a hearing on an asylum application only
                ``to resolve factual issues in dispute.'' 8 CFR 1240.11(c)(3) (emphasis
                added). No existing regulation requires a hearing when an asylum
                application is legally deficient. To the contrary, current regulations
                expressly note that no further hearing is necessary once an immigration
                judge determines that an asylum application is subject to certain
                grounds for mandatory denial. Id.
                 Moreover, other immigration applications are subject to
                pretermission without a hearing when they are not legally sufficient,
                and there is no reason to treat asylum applications differently. See
                Zhu v. Gonzales, 218 F. App'x 21, 23 (2d Cir. 2007) (finding that
                pretermission of an asylum application due to a lack of a legal nexus
                to a protected ground was not a due process violation when the alien
                was given an opportunity to address the issue). Further, pretermission
                due to a failure to establish prima facie legal eligibility for asylum
                is akin to a decision by an immigration judge or the BIA denying a
                motion to reopen to apply for asylum on the same basis, and both
                immigration judges and the BIA have routinely made such determinations
                for many years. See INS v. Abudu, 485 U.S. 94, 104 (1988) (holding that
                the BIA may deny a motion to reopen to file an asylum application if
                the alien has not made a prima facie case for that relief).
                 In short, neither the INA nor current regulations require holding a
                full merits hearing on purely legal issues, such as prima facie legal
                eligibility for relief.\26\ Further, allowing the pretermission of
                legally deficient asylum applications is consistent with current
                practice, applicable law, and due process. As explained below, an
                immigration judge would only be able to pretermit an asylum application
                after first allowing the alien an opportunity to respond. The alien
                would be able to address any inconsistencies or legal weaknesses in the
                asylum application in the response to the judge's notice of possible
                pretermission.
                ---------------------------------------------------------------------------
                 \26\ The Departments are not aware of anything in IIRIRA or
                related legislative history that would conflict with an immigration
                judge's ability to pretermit an asylum application that does not
                demonstrate prima facie eligibility for relief. For example, the
                Departments do not believe that requiring a sufficient level of
                detail to determine whether or not an alien has a prima facie case
                for asylum, statutory withholding of removal, or protection under
                the CAT regulations would necessarily require a voluminous
                application. See H.R. Rep. No. 104-469, part 1, at 175-76 (1996).
                The point instead is enough information to determine the basis of
                the alien's claim for relief and if such a claim could be sufficient
                to demonstrate eligibility.
                ---------------------------------------------------------------------------
                 Under the proposed regulation, an immigration judge may pretermit
                an asylum application in two circumstances: (1) Following an oral or
                written motion by DHS, and (2) sua sponte upon the immigration judge's
                own authority. Provided the alien has had an opportunity to respond,
                and the immigration judge considers any such response, a hearing would
                not be required for the immigration judge to make a decision to
                pretermit and deny the application. In the case of the immigration
                judge's exercise of his or her own authority, parties would have at
                least ten days' notice before the immigration judge would enter such an
                order. A similar timeframe would apply if DHS moves to pretermit, under
                current practice. See EOIR, Immigration Court Practice Manual at D-1
                (Aug. 2, 2018), https://www.justice.gov/eoir/page/file/1084851/download
                (last visited May 20, 2020).
                C. Standards for Consideration During Review of an Application for
                Asylum or for Statutory Withholding of Removal
                1. Membership in a Particular Social Group
                 To establish eligibility for asylum under the INA, as amended by
                the Refugee Act of 1980, or statutory withholding of removal, the
                applicant must demonstrate, among other things, that she or he was
                persecuted, or has a well-founded fear of future persecution, on
                account of a protected ground: ``race, religion, nationality,
                membership in a particular social group, or political opinion.'' See
                INA 101(a)(42), 8 U.S.C. 1101(a)(42); see also INA 208(b)(1)(A) and
                241(b)(3)(A), 8 U.S.C. 1158(b)(1)(A) and 1231(b)(3)(A). Congress,
                however, has not defined the phrase
                [[Page 36278]]
                ``membership in a particular social group.'' Nor is the term defined in
                the United Nations Convention Relating to the Status of Refugees
                (``Refugee Convention''), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S.
                150, or the related Refugee Protocol. Further, the term lacks the
                benefit of clear legislative intent. See Fatin v. INS, 12 F.3d 1233,
                1239 (3d Cir. 1993) (Alito, J.) (``Thus, neither the legislative
                history of the relevant United States statutes nor the negotiating
                history of the pertinent international agreements sheds much light on
                the meaning of the phrase `particular social group.' ''); cf. Matter of
                Acosta, 19 I&N Dec. 211, 232 (BIA 1985) (``Congress did not indicate
                what it understood this ground of persecution to mean, nor is its
                meaning clear in the Protocol''), overruled on other grounds by Matter
                of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
                 When Congress passed the Refugee Act of 1980, further implementing
                U.S. obligations under the Refugee Protocol, it included ``membership
                in a particular social group'' in its definition of ``refugee'' at
                section 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42). Just a few years
                later, the BIA established that a particular social group is ``a group
                of persons all of whom share a common, immutable characteristic,'' and
                that the characteristic ``either is beyond the power of an individual
                to change or that it is so fundamental to his identity or conscience
                that it ought not be required to be changed.'' Matter of Acosta, 19 I&N
                Dec. at 233-34.
                 Although the Board did not significantly refine the formulation
                further until years later, see, e.g., Matter of C-A-, 23 I&N Dec. 951,
                956, 959-60 (BIA 2006), it routinely issued decisions delineating which
                groups did and did not qualify as particular social groups in the
                context of the relevant societies for purposes of asylum protection,
                see, e.g., Matter of H-, 21 I&N Dec. 337, 342-43 (BIA 1996) (membership
                in a Somali subclan may constitute membership in a particular social
                group); Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA 1990)
                (designated for publication by the Attorney General in 1994)
                (homosexuals in Cuba may constitute a particular social group).\27\
                Starting in the late 2000s, the BIA began to build on the Acosta
                definition in a series of cases, and subsequently settled on a three-
                part test for a particular social group, holding that the group must be
                ``(1) composed of members who share a common immutable characteristic,
                (2) defined with particularity, and (3) socially distinct within the
                society in question.'' Matter of M-E-V-G-, 26 I&N Dec. at 237; see also
                Matter of W-G-R-, 26 I&N Dec. at 212-18.
                ---------------------------------------------------------------------------
                 \27\ Federal courts have raised questions about whether the
                Board or the Attorney General can recognize or reject particular
                social groups in this manner, Pirir-Boc v. Holder, 750 F.3d 1077,
                1084 (9th Cir. 2014), and a recent federal district court decision
                has more clearly called into question the validity of this approach
                of announcing general rules of particular social group definitions.
                Grace v. Whitaker, 344 F. Supp. 3d 96, 126 (D.D.C. 2018) (finding
                that general rules of particular social group definitions, at least
                as applied to credible fear claims, run ``contrary to the
                individualized analysis required by the INA''), appeal docketed, No.
                19-5013 (D.C. Cir. filed Jan. 30, 2019).
                ---------------------------------------------------------------------------
                 Immutability entails a common characteristic: A trait ``that the
                members of the group either cannot change, or should not be required to
                change because it is fundamental to their individual identities or
                consciences.'' Matter of Acosta 19 I&N Dec. at 233. Particularity
                requires that the group ``must be defined by characteristics that
                provide a clear benchmark for determining who falls within the group''
                and that ``the terms used to describe the group have commonly accepted
                definitions in the society of which the group is a part.'' Matter of M-
                E-V-G-, 26 I&N Dec. at 239. Further, the group must not be ``amorphous,
                overbroad, diffuse, or subjective.'' Id. To be considered ``socially
                distinct,'' the group must be a meaningfully discrete group as the
                relevant society perceives it. The term is not dependent on literal or
                ``ocular'' visibility. Id. at 238, 240-41.
                 The definition of ``particular social group'' has been the subject
                of considerable litigation and is a product of evolving case law,
                making it difficult for EOIR's immigration judges and Board members, as
                well as DHS asylum officers, to uniformly apply the framework. See
                Matter of A-B-, 27 I&N Dec. at 331 (``Although the Board has
                articulated a consistent understanding of the term `particular social
                group,' not all of its opinions have properly applied that
                framework.''); see also, e.g., Cordoba v. Holder, 726 F.3d 1106, 1114
                (9th Cir. 2013) (``We have recognized that the phrase `particular
                social group' is ambiguous.'' (citing Henriquez-Rivas v. Holder, 707
                F.3d 1081, 1083 (9th Cir. 2013) (en banc))); Fatin, 12 F.3d at 1238
                (``Both courts and commentators have struggled to define `particular
                social group.' Read in its broadest literal sense, the phrase is almost
                completely open-ended.''); see also Velasquez v. Sessions, 866 F.3d
                188, 198 (4th Cir. 2017) (Wilkinson, J. concurring) (noting that the
                legal ``analysis of `particular social group' in the asylum statute is
                at risk of lacking rigor,'' that Congress did not intend ```membership
                in a particular social group' to be some omnibus catch-all,'' and that
                ``judicial interpretations of th[e] statute may outstrip anything
                Congress intended''). Accordingly, this regulation would provide clear
                parameters for evaluating cognizable ``particular social groups.''
                 The proposed rule would codify the longstanding requirements, as
                discussed above, that a particular social group must be (1) composed of
                members who share a common immutable characteristic, (2) defined with
                particularity, and (3) socially distinct in the society in question. In
                addition, the particular social group must have existed independently
                of the alleged persecutory acts and cannot be defined exclusively by
                the alleged harm.\28\ See Matter of A-B-, 27 I&N Dec. at 334 (``To be
                cognizable, a particular social group must `exist independently' of the
                harm asserted in an application for asylum or statutory withholding of
                removal.''); see generally Matter of M-E-V-G-, 26 I&N Dec. at 243
                (``The act of persecution by the government may be the catalyst that
                causes the society to distinguish [a collection of individuals] in a
                meaningful way and consider them a distinct group, but the immutable
                characteristic of their shared past experience exists independent of
                the persecution.'').
                ---------------------------------------------------------------------------
                 \28\ The Departments recognize the existence of confusion over
                this standard because the independent existence of a particular
                social group is not precisely the same concept as noting the group
                cannot be defined exclusively by the alleged harm. Thus, the
                proposed rule clarifies that a valid particular social group must
                have existed independently of the alleged persecutory acts and
                cannot be defined exclusively by the alleged harm. Otherwise, ``[i]f
                a group is defined by the persecution of its members, the definition
                of the group moots the need to establish actual persecution'' Matter
                of A-B-, 27 I&N Dec. at 335. The ``independent existence''
                formulation has been accepted by many courts. See, e.g., Perez-
                Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (``A
                sufficiently distinct social group must exist independent of the
                persecution claimed to have been suffered by the alien and must have
                existed before the alleged persecution began.''); Lukwago v.
                Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (``We agree that under
                the statute a `particular social group' must exist independently of
                the persecution suffered by the applicant for asylum.''). For courts
                that have rejected this ``independent existence'' requirement, see,
                e.g., Cece v. Holder, 733 F.3d 662, 671-72 (7th Cir. 2013) (en
                banc), both subsequent decisions recognizing the requirement, see,
                e.g., Matter of A-B- and Matter of M-E-V-G-, supra, and the
                Departments' proposed rule codifying it would warrant re-evaluation
                under well-established principles. See Brand X, 545 U.S. at 982.
                ---------------------------------------------------------------------------
                 The proposed rule would further build on the BIA's standards and
                provide clearer guidance to adjudicators regarding whether an alleged
                group exists and, if so, whether it is cognizable as a particular
                social group in order to ensure the consistent consideration of asylum
                and statutory withholding claims. For example, the proposed rule
                [[Page 36279]]
                would outline several nonexhaustive bases that would generally be
                insufficient to establish a particular social group. Without more, the
                Secretary of Homeland Security and the Attorney General, in general,
                would not favorably adjudicate claims of aliens who claim membership in
                a purported particular social group consisting of or defined, in
                substance, by the following circumstances:
                 (1) Past or present criminal activity or associations, Matter of W-
                G-R-, 26 I&N Dec. at 222-23; Cantarero v. Holder, 734 F.3d 82, 86 (1st
                Cir. 2013); Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 405 (11th Cir.
                2016);
                 (2) past or present terrorist activity or association;\29\
                ---------------------------------------------------------------------------
                 \29\ Just as past criminal associations cannot establish a
                particular social group, neither past association with terrorists or
                past association with persecutors warrants recognition as a
                particular social group. To do so would reward membership in
                organizations that cause harm to society and create a perverse
                incentive to engage in reprehensible or illicit behavior as a means
                of avoiding removal. Cf. Cantarero, 734 F.3d at 86.
                ---------------------------------------------------------------------------
                 (3) past or present persecutory activity or association;
                 (4) presence in a country with generalized violence or a high crime
                rate, Matter of A-B-, 27 I&N Dec. at 320;
                 (5) the attempted recruitment of the applicant by criminal,
                terrorist, or persecutory groups, Matter of S-E-G-, 24 I&N Dec. 579,
                585-86 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591, 594-95 (BIA
                2008);
                 (6) the targeting of the applicant for criminal activity for
                financial gain based on perceptions of wealth or affluence, Matter of
                A-M-E- & J-G-U-, 24 I&N Dec. 69, 75 (BIA 2007);
                 (7) interpersonal disputes of which governmental authorities were
                unaware or uninvolved, Matter of Pierre, 15 I&N Dec. 461, 462-63 (BIA
                1975); see also Gonzalez-Posadas v. Att'y Gen. of U.S., 781 F.3d 677,
                685 (3d Cir. 2015);
                 (8) private criminal acts of which governmental authorities were
                unaware or uninvolved, Matter of A-B-, 27 I&N Dec. at 343-44; see also
                Gonzales-Veliz v. Barr, 938 F.3d 219, 230-31 (5th Cir. 2019);
                 (9) status as an alien returning from the United States, Delgado-
                Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (``We conclude
                that Petitioners' proposed social group, `returning Mexicans from the
                United States,' * * * * is too broad to qualify as a cognizable social
                group.''); Sam v. Holder, 752 F.3d 97, 100 (1st Cir. 2014) (Guatemalans
                returning after a lengthy residence in the United States is not a
                cognizable particular social group).
                 This list is nonexhaustive, and the substance of the alleged
                particular social group, rather than the specific form of its
                delineation, will be considered by adjudicators in determining whether
                the group falls within one of the categories on the list. Without
                additional evidence, these circumstances are generally insufficient to
                demonstrate a particular social group that is cognizable because it is
                immutable, socially distinct, and particular, that is cognizable
                because the group does not exist independently of the harm asserted, or
                that is cognizable because the group is defined exclusively by the
                alleged harm. At the same time, the regulation does not foreclose that,
                in rare circumstances, such facts could be the basis for finding a
                particular social group, given the fact- and society-specific nature of
                this determination. In addition to resulting in more uniform
                application, providing clarity to this issue will reduce the amount of
                time the adjudicators must spend evaluating such claims.
                 The proposed regulation also specifies procedural requirements
                specific to asylum and statutory withholding claims premised on a
                particular social group. While in proceedings before an immigration
                judge, the alien must first define the proposed particular social group
                as part of the asylum application or otherwise in the record. If the
                alien fails to do so while before an immigration judge, the alien will
                waive any claim based on a particular social group formulation that was
                not advanced. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190-91
                (BIA 2018). Further, to encourage the efficient litigation of all
                claims in front of the immigration court at the same time--and to avoid
                gamesmanship and piecemeal analyses of claims in separate proceedings
                when all claims could have been brought at once--the alien will also
                waive the ability to file any motion to reopen or reconsider an asylum
                application related to the alien's membership in a particular social
                group that could have been brought at the prior hearing, including
                based on allegations related to the strategic choices made by an
                alien's counsel in defining the alleged particular social group. This
                limitation is consistent with current requirements for motions to
                reopen that preclude the raising of claims that could have been brought
                in a prior proceeding. See 8 CFR 1003.23(b)(3) (``A motion to reopen
                for the purpose of providing the alien an opportunity to apply for any
                form of discretionary relief will not be granted if it appears that the
                alien's right to apply for such relief was fully explained to him or
                her by the Immigration Judge and an opportunity to apply therefore was
                afforded at the hearing, unless the relief is sought on the basis of
                circumstances that have arisen subsequent to the hearing.''). These
                regulations will enable the immigration judge to adjudicate the alien's
                particular claim for relief or protection timely and efficiently,
                including deciding whether or not pretermission of the alien's
                application may be appropriate.
                2. Political Opinion
                 The definition of ``political opinion'' has also been the subject
                of considerable litigation and is a product of evolving case law,
                making it difficult for EOIR's immigration judges and Board members, as
                well as DHS asylum officers, to uniformly apply the framework. Compare,
                e.g., Hernandez-Chacon v. Barr, 948 F.3d 94, 102-03 (2d Cir. 2020)
                (refusal to submit to the violent advances of gang members may be akin
                to a political opinion taking a stance against a culture of male-
                domination), with Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir.
                2005) (disapproval of a drug cartel is not a political opinion--
                ``Indeed, to credit such disapproval as grounds for asylum would
                enlarge the category of political opinions to include almost any
                quarrel with the activities of almost any organization. Not only would
                the proliferation of asylum grants under this expansive reading
                interfere with the other branches' primacy in foreign relations, it
                would also strain the language of Sec. 1101(a)(42)(A). The statute
                requires persecution to be on a discrete basis and to fall within one
                of the enumerated categories.'' (citations omitted)).
                 BIA case law makes clear that a political opinion involves a cause
                against a state or a political entity, rather than against a culture.
                Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996) (``Here we must examine
                the record for direct or circumstantial evidence from which it is
                reasonable to believe that those who harmed the applicant were in part
                motivated by an assumption that his political views were antithetical
                to those of the government.'' (emphasis added)). For purposes of
                interpreting the Refugee Convention and subsequent Protocol, the United
                Nations High Commissioner for Refugees (``UNHCR'') also analyzes
                ``political opinion'' in terms of holding an opinion different from the
                Government or not tolerated by the relevant governmental authorities.
                UNHCR Handbook on Procedures and Criteria for Determining Refugee
                Status and Guidelines on International Protection, ch. II(B)(3)(f), ]]
                80-82 (Feb. 2019) (discussing political opinion refugee claims in terms
                of opinions not
                [[Page 36280]]
                tolerated by governmental the authorities or ruling powers).
                 Nevertheless, to avoid further strain on the INA's definition of
                refugee, INA 1101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A), see Saldarriaga,
                402 F.3d at 467, to provide additional clarity for adjudicators, and in
                recognition of both statutory requirements and the general
                understanding that a political opinion is intended to advance or
                further a discrete cause related to political control of a state, id.
                at 466-67, the Departments propose to define political opinion as one
                expressed by or imputed to an applicant in which the applicant
                possesses an ideal or conviction in support of the furtherance of a
                discrete cause related to political control of a state or a unit
                thereof. Moreover, in recognition of that definition, the Secretary or
                Attorney General, in general, will not favorably adjudicate claims of
                persecution on account of a political opinion defined solely by
                generalized disapproval of, disagreement with, or opposition to
                criminal, terrorist, gang, guerilla, or other non-state organizations
                absent expressive behavior \30\ in furtherance of a cause against such
                organizations related to efforts by the state to control such
                organizations or behavior that is antithetical to or otherwise opposes
                the ruling legal entity of the state or a legal sub-unit of the state.
                Finally, consistent with INA 101(a)(42), 8 U.S.C. 1101(a)(42), a person
                who has been forced to abort a pregnancy or to undergo involuntary
                sterilization, or who has been persecuted for failure or refusal to
                undergo such a procedure or for other resistance to a coercive
                population control program, shall be deemed to have been persecuted on
                account of political opinion, and a person who has a well-founded fear
                that he or she will be forced to undergo such a procedure or subject to
                persecution for such failure, refusal, or resistance shall be deemed to
                have a well-founded fear of persecution on account of political
                opinion.
                ---------------------------------------------------------------------------
                 \30\ Expressive behavior includes public behavior commonly
                associated with political activism, such as attending rallies,
                organizing collective actions such as strikes or demonstrations,
                speaking at public meetings, printing or distributing political
                materials, putting up political signs, or similar activities in
                which an individual's political views are a salient feature of the
                behavior and communicated to others at the time the behavior occurs.
                Expressive behavior is not generally thought to encompass acts of
                personal civic responsibility such as voting, reporting a crime, or
                assisting law enforcement in an investigation, and those activities,
                by themselves, would not support a claim based on an alleged fear of
                harm due to a political opinion.
                ---------------------------------------------------------------------------
                3. Persecution
                 For purposes of eligibility for asylum and withholding of removal,
                persecution is defined as ``a threat to the life or freedom of, or the
                infliction of suffering or harm upon, those who differ in a way
                regarded as offensive.'' Matter of Acosta, 19 I&N Dec. at 222; see also
                Fatin, 12 F.3d at 1240 (``Thus, we interpret Acosta as recognizing that
                the concept of persecution does not encompass all treatment that our
                society regards as unfair, unjust, or even unlawful or
                unconstitutional.''). It encompasses two aspects: ``harm or suffering
                had to be inflicted upon an individual in order to punish him for
                possessing a belief or characteristic a persecutor sought to overcome *
                * * [and] harm or suffering had to be inflicted either by the
                government of a country or by persons or an organization that the
                government was unable or unwilling to control.'' Matter of Acosta, 19
                I&N Dec. at 222. Put differently, persecution requires an intent to
                target a belief, characteristic or group, a severe level of harm, and
                the infliction of a severe level of harm by the government of a country
                or by persons or an organization that the government is unable or
                unwilling to control. Matter of A-B-, 27 I&N Dec. at 337. For purposes
                of evaluating the severity of the level of harm, persecution connotes
                an extreme level of harm and does not encompass all possible forms of
                mistreatment. See Shi v. U.S. Att'y Gen., 707 F.3d 1231, 1235 (11th
                Cir. 2013) (explaining that persecution is ``an extreme concept that
                does not include every sort of treatment [that] our society regards as
                offensive'' (quotation marks and citations omitted)); Gormley v.
                Ashcroft, 364 F.3d 1172, 1176 (9th Cir. 2004) (same).
                 It is thus well-established that not all treatment that the United
                States regards as unfair, offensive, unjust, or even unlawful or
                unconstitutional constitutes persecution under the INA.\31\ Further,
                intermittent harassment, including brief detentions, repeated threats
                with no effort to carry out the threats, or non-severe economic harm or
                property damage, do not typically constitute persecution. See, e.g., de
                Zea v. Holder, 761 F.3d 75, 80 (1st Cir. 2014) (persecution requires
                more than ``unpleasantness, harassment, and even basic suffering'');
                Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir. 2002) (noting that
                ``unfulfilled threats alone generally do not constitute past
                persecution''); Djonda v. U.S. Att'y Gen., 514 F.3d 1168, 1174 (11th
                Cir. 2008) (threats and a minor beating do not constitute past
                persecution); Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341, 1353 (11th
                Cir. 2009) (``Minor physical abuse and brief detentions do not amount
                to persecution.''); Matter of T-Z-, 24 I&N Dec. 163, 170 (BIA 2007)
                (explaining that economic harm must be ``severe'' to qualify as
                persecution).
                ---------------------------------------------------------------------------
                 \31\ ``Persecution * * * does not include discrimination.''
                Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (internal
                quotation marks and authority omitted); see also Ahmed v. Ashcroft,
                341 F.3d 214, 217 (3d Cir. 2003) (discrimination against stateless
                Palestinians in Saudi Arabia did not amount to persecution). Nor
                does harassment constitute persecution. See, e.g., Halim v. Holder,
                590 F.3d 971, 976 (9th Cir. 2009) (alleged incidents constituted
                harassment, not persecution); Ambati v. Reno, 233 F.3d 1054, 1060
                (7th Cir. 2000) (distinguishing persecution from harassment or
                annoyance); Matter of V-F-D-, 23 I&N Dec. 859, 863863 (BIA 2006)
                (determining harassment and discrimination based on religion did not
                constitute persecution).
                ---------------------------------------------------------------------------
                 Absent credible evidence that Government laws or policies have been
                or would be applied to an applicant personally, infrequent application
                of those laws and policies cannot constitute a well-founded fear of
                persecution. In other words, the mere existence of potentially
                persecutory laws or policies is not enough to establish a well-founded
                fear of persecution. Rather, there must be evidence these laws or
                policies were widespread and systemic, or evidence that persecutory
                laws or policies were, or would be, applied to an applicant personally.
                Cf. Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir. 2009) (an
                applicant is not required to establish that his or her government would
                personally persecute the alien upon return if he or she can establish a
                pattern or practice of persecution against a protected group to which
                they belong. However, the governmental conduct must be ``systematic''
                and ``sufficiently widespread'' and not merely infrequent).
                 Given the wide range of cases interpreting ``persecution'' for the
                purposes of the asylum laws, the Departments propose adding a new
                paragraph to 8 CFR 208.1 and 1208.1 to define persecution and to better
                clarify what does and does not constitute persecution. It would provide
                that persecution is an extreme concept of a severe level of harm. Under
                the proposed amendment, persecution would not include, for example: (1)
                Every instance of harm that arises generally out of civil, criminal, or
                military strife in a country, see, e.g., Matter of Sanchez and Escobar,
                19 I&N Dec. 276, 284-85 (BIA 1985); (2) any and all treatment that the
                United States regards as unfair, offensive, unjust, or even unlawful or
                unconstitutional, see Fatin, 12 F.3d at 1240; Matter of V-T-S-, 21 I&N
                Dec. 792, 798 (BIA 1997); (3)
                [[Page 36281]]
                intermittent harassment, including brief detentions; (4) repeated
                threats with no actions taken to carry out the threats; \32\ (5) non-
                severe economic harm or property damage; or (6) government laws or
                policies that are infrequently enforced, unless there is credible
                evidence that those laws or policies have been or would be applied to
                an applicant personally. The Departments believe that these changes
                better align the relevant regulations with the high standard Congress
                intended for the term ``persecution.'' See Fatin, 12 F.3d at 1240 n.10.
                ---------------------------------------------------------------------------
                 \32\ The Departments note that courts have been inconsistent in
                their treatment of threats as persecution. See Lim v. INS, 224 F.3d
                at 929, 936-37 (9th Cir. 2000) (explaining that threats are
                generally not past ``persecution,'' but are ``within that category
                of conduct indicative of a danger of future persecution.''); Li v.
                Attorney Gen. of U.S., 400 F.3d 157, 164-65 (3d Cir. 2005) (same).
                See also Guan Shan Liao v. United States Dep't of Justice, 293 F.3d
                61, 70 (2d Cir. 2002); Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir.
                1997); Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005) (``[H]ollow
                threats, * * * without more, certainly do not compel a finding of
                past persecution.''); but see Li v. Gonzales, 405 F.3d 171, 177 (4th
                Cir. 2005) (``Persecution involves the infliction or threat of
                death, torture, or injury to one's person or freedom on account of
                one of the enumerated grounds in the refugee definition.''); Tairou
                v. Whitaker, 909 F.3d 702, 707-08 (4th Cir. 2018) (``Contrary to the
                BIA's reasoning, the threat of death alone constitutes persecution,
                and [an applicant] [is] not required to [show] * * * physical or
                mental harm to establish past persecution.''); id. (holding Board
                erred in reasoning that several death threats did not constitute
                past persecution where applicant ``suffered no major physical
                injuries and * * * did not claim to have suffered any long-term
                mental harm or problems''); Hernandez-Avalos v. Lynch, 784 F.3d 944,
                949 (4th Cir. 2015) (``[W]e have expressly held that the threat of
                death qualifies as persecution.'' (internal quotation marks and
                citation omitted)). The Departments' proposed rule would warrant re-
                evaluation in appropriate cases under well-established principles.
                See Brand X, 545 U.S. at 982.
                ---------------------------------------------------------------------------
                4. Nexus
                 To establish eligibility for asylum under the INA, as amended by
                the Refugee Act of 1980 and the REAL ID Act of 2005, Public Law 109-13,
                sec. 101 (found at INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i)), the
                applicant must demonstrate, among other things, that at least one
                central reason for his or her persecution or well-founded fear of
                persecution was on account of a protected ground: Race, religion,
                nationality, membership in a particular social group, or political
                opinion. See INA 101(a)(42), 8 U.S.C. 1101(a)(42); INA 208(b)(1)(A), 8
                U.S.C. 1158(b)(1)(A). The requirement that the fear be on account of
                one of the five grounds is commonly called the ``nexus requirement.''
                 The REAL ID Act of 2005 refined the nexus requirement by requiring
                that one of the five protected grounds ``was or will be at least one
                central reason for persecuting the applicant.'' ``Reasons incidental,
                tangential, or subordinate to the persecutor's motivation will not
                suffice.'' Matter of A-B-, 27 I&N Dec. at 338. As with the definitions
                of particular social group and persecution, the contours of the nexus
                requirement have further been shaped through case law rather than
                rulemaking, making it difficult for EOIR's immigration judges and Board
                members, as well as DHS asylum officers, to uniformly apply it.
                 Accordingly, the proposed rule would provide clearer guidance on
                situations in which alleged acts of persecution would not be on account
                of one of the five protected grounds. This proposal would further the
                expeditious consideration of asylum and statutory withholding claims.
                For example, the proposed rule would outline the following eight
                nonexhaustive situations, each of which is rooted in case law, in which
                the Secretary of Homeland Security and the Attorney General, in
                general, will not favorably adjudicate asylum or statutory withholding
                of removal claims based on persecution:
                 (1) Personal animus or retribution, Zoarab v. Mukasey, 524 F.3d
                777, 781 (6th Cir. 2008) (``Asylum is not available to an alien who
                fears retribution solely over personal matters.'');
                 (2) interpersonal animus in which the alleged persecutor has not
                targeted, or manifested an animus against, other members of an alleged
                particular social group in addition to the member who has raised the
                claim at issue, Matter of A-B-, 27 I&N Dec. at 339 (`` `the record does
                not reflect that [the applicant's] husband bore any particular
                animosity toward women who were intimate with abusive partners, women
                who had previously suffered abuse, or women who happened to have been
                born in, or were actually living in, Guatemala' '' and `` `[w]hen the
                alleged persecutor is not even aware of the group's existence, it
                becomes harder to understand how the persecutor may have been motivated
                by the victim's `membership' in the group to inflict the harm on the
                victim.' '' (quoting Matter of R-A-, 22 I&N Dec. 906, 919-21 (BIA 1999)
                (en banc)));
                 (3) generalized disapproval of, disagreement with, or opposition to
                criminal, terrorist, gang, guerilla, or other non-state organizations
                absent expressive behavior in furtherance of a discrete cause against
                such organizations related to control of a state or expressive behavior
                that is antithetical to the state or a legal unit of the state,
                Saldarriaga, 402 F.3d at 468 (``For the inscrutability of the political
                opinion he claims implies that any persecution he faces is due to the
                fact of his cooperation with the government, rather than the content of
                any opinion motivating that cooperation * * *. But when, as here, the
                applicant has not taken sides in such manner--much less under duress--
                and the conflict, though ubiquitous, is not aimed at controlling the
                organs of state, an applicant cannot merely describe his involvement
                with one side or the other to establish a political opinion * * *.'');
                 (4) resistance to recruitment or coercion by guerilla, criminal,
                gang, terrorist, or other non-state organizations, INS v. Elias-
                Zacarias, 502 U.S. 478, 482 (1992) (``[T]he mere existence of a
                generalized `political' motive underlying the guerrillas' forced
                recruitment is inadequate to establish (and, indeed, goes far to
                refute) the proposition that [the respondent] fears persecution on
                account of political opinion, as Sec. 101(a)(42) requires.'' (emphasis
                in original));
                 (5) the targeting of the applicant for criminal activity for
                financial gain based on wealth or affluence or perceptions of wealth or
                affluence, Aldana-Ramos v. Holder, 757 F.3d 9, 18 (1st Cir. 2014)
                (``criminal targeting based on wealth does not qualify as persecution
                `on account of' membership in a particular group''); or
                 (6) criminal activity, Zetino v. Holder, 622 F.3d 1007, 1016 (9th
                Cir. 2010) (``An alien's desire to be free from harassment by criminals
                motivated by theft or random violence by gang members bears no nexus to
                a protected ground * * *.'');
                 (7) perceived, past or present, gang affiliation, Matter of E-A-G-,
                24 I. & N. Dec. 591, 596 (BIA 2008) (``[In Arteaga v. Mukasey, 511 F.3d
                940, 945-46 (9th Cir. 2007)] the Ninth Circuit held that membership in
                a gang would not constitute membership in a particular social group. We
                agree.'' Furthermore, ``because we agree that membership in a criminal
                gang cannot constitute a particular social group, the respondent cannot
                establish particular social group status based on the incorrect
                perception by others that he is such a gang member.''); or
                 (8) gender, Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10th Cir.
                2005) (``There may be understandable concern in using gender as a
                group-defining characteristic. One may be reluctant to permit, for
                example, half a nation's residents to obtain asylum on the ground that
                women are persecuted there * * *.'')
                 Without additional evidence, these circumstances will generally be
                insufficient to demonstrate persecution
                [[Page 36282]]
                on account of a protected ground. At the same time, the regulation does
                not foreclose that, at least in rare circumstances, such facts could be
                the basis for finding nexus, given the fact-specific nature of this
                determination. In addition to resulting in more uniform application of
                the law, providing clarity to this issue will reduce the amount of time
                the adjudicators must spend evaluating such claims.
                 Finally, the Departments propose to make clear that pernicious
                cultural stereotypes have no place in the adjudication of applications
                for asylum and statutory withholding of removal, regardless of the
                basis of the claim. See Matter of A-B-, 27 I&N Dec. at 336 n. 9 (``On
                this point, I note that conclusory assertions of countrywide negative
                cultural stereotypes, such as A-R-C-G-'s broad charge that Guatemala
                has a `culture of machismo and family violence' based on an unsourced
                partial quotation from a news article eight years earlier, neither
                contribute to an analysis of the particularity requirement nor
                constitute appropriate evidence to support such asylum
                determinations.''). Accordingly, the proposed rule would bar
                consideration of evidence promoting cultural stereotypes of countries
                or individuals, including stereotypes related to race, religion,
                nationality, and gender, to the extent those stereotypes were offered
                in support of an alien's claim to show that a persecutor conformed to a
                cultural stereotype.
                5. Internal Relocation
                 Under current regulations, an applicant for asylum or statutory
                withholding of removal who could avoid persecution by internally
                relocating to another part of his or her country of nationality or, if
                stateless, another part of the applicant's country of last habitual
                residence, and who can reasonably be expected to do so, may not be
                granted these forms of protection.\33\ 8 CFR 208.13(b)(1)(i)(B),
                (2)(ii), 1208.13(b)(1)(i)(B), (2)(ii) (asylum); 8 CFR
                208.16(b)(1)(i)(B), (2), 1208.16(b)(1)(i)(B), (2) (statutory
                withholding). The regulations further prescribe a nonexhaustive list of
                factors for adjudicators to consider in making internal relocation
                determinations and delineate burdens of proof in various related
                situations. 8 CFR 208.13(b)(1)(ii), (3), 1208.13(b)(1)(ii), (3); 8 CFR
                208.16(b)(1)(ii), (3), 1208.16(b)(i)(ii), (3).
                ---------------------------------------------------------------------------
                 \33\ In limited instances, asylum can be granted without the
                need to establish a well-founded fear of persecution. An alien who
                has suffered past persecution but does not warrant being granted
                asylum due either to a fundamental change in circumstances such that
                the alien no longer has a well-founded fear of persecution or the
                alien's reasonable ability to internally relocate to avoid future
                persecution may nevertheless be granted asylum in the discretion of
                the decisionmaker if the alien is not barred from asylum pursuant to
                8 CFR 208.13(c) and 1208.13(c) and if the applicant has demonstrated
                compelling reasons for being unwilling or unable to return arising
                out of the severity of the past persecution or the applicant has
                established a reasonable possibility of other serious harm upon
                removal. 8 CFR 208.13(b)(1)(iii), 1208.13(b)(1)(iii). This
                regulatory exception is frequently labeled ``humanitarian asylum.''
                ---------------------------------------------------------------------------
                 The Departments have determined that the current regulations
                regarding internal relocation inadequately assess the relevant
                considerations in determining whether internal relocation is possible,
                and if possible, whether it is reasonable to expect the asylum
                applicant to relocate. For instance, the utility of the catch-all list
                of factors in 8 CFR 208.13(b)(3) and 1208.13(b)(3) is undermined by its
                unhelpful concluding caveats that the factors ``may, or may not'' be
                relevant to an internal relocation determination and that the factors
                ``are not necessarily determinative of whether it would be reasonable
                for the applicant to relocate.'' Such caveats provide little practical
                guidance for adjudicators considering issues of internal relocation
                raised by asylum claims. Moreover, some factors--e.g., administrative,
                economic, or judicial infrastructure--do not have a clear relevance in
                assessing the reasonableness of internal relocation in many cases,
                while others insufficiently appreciate as a general matter that asylum
                applicants have often already relocated hundreds or thousands of miles
                to the United States regardless of such factors. Accordingly, the
                Departments propose a more streamlined presentation in the regulations
                of the most relevant factors for adjudicators to consider in
                determining whether internal relocation is a reasonable option.
                 The current regulations also outline different scenarios for
                assessing who bears the burden of proof in establishing or refuting the
                reasonableness of internal relocation. In situations in which the
                persecutor is the government or a government-sponsored actor, it is
                presumed that relocation would not be reasonable (as the persecution is
                presumed to be nationwide). In situations in which a private actor is
                the persecutor, however, there is no apparent reason why the same
                presumption should apply, as a private individual or organization would
                not ordinarily be expected to have influence everywhere in a country.
                Moreover, as an asylum applicant generally bears the burden of proving
                eligibility for asylum, it is even more anomalous to shift that burden
                in situations in which there is no rational presumption that the threat
                of persecution would occur nationwide. Consequently, the Departments
                have determined that the regulatory burdens of proof regarding internal
                relocation should be assigned more in line with these baseline
                assessments of whether types of persecution generally occur nationwide,
                while recognizing that exceptions, such as persecution by local
                governments or nationwide organizations, might overcome these
                presumptions. Thus, the Departments propose to amend the regulations to
                presume that for applications in which the persecutor is not a
                government or government-sponsored actor, internal relocation would be
                reasonable unless the applicant demonstrates by a preponderance of the
                evidence that it would not be. This presumption would apply regardless
                of whether an applicant has established past persecution. For ease of
                administering these provisions, the Departments would also provide
                examples of the types of individuals or entities who are private
                actors.
                6. Factors for Consideration in Discretionary Determinations
                 Asylum is a discretionary relief, and an alien who demonstrates
                that he or she qualifies as a refugee must also demonstrate that he or
                she deserves asylum as a matter of discretion. 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 has applied for
                asylum in accordance with the requirements and procedures [they
                establish] * * * if the Secretary of Homeland Security or the Attorney
                General determines that such alien is a refugee * * *.'' (emphasis
                added)); Stevic, 467 U.S. at 423 n.18 (``Meeting the definition of
                `refugee,' however, does not entitle the alien to asylum--the decision
                to grant a particular application rests in the discretion of the
                Attorney General under Sec. 208(a).''). Eligibility for asylum is not
                an automatic entitlement. Rather, after demonstrating statutory and
                regulatory eligibility, aliens must further meet their burden of
                showing that the Attorney General or the Secretary of Homeland Security
                should exercise his discretion to grant asylum. See Matter of A-B-, 27
                I&N Dec. at 345 n.12; Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
                 The BIA in Matter of Pula examined the sorts of factors immigration
                judges should consider when determining whether asylum applicants merit
                the relief of asylum as a matter of discretion. The BIA ultimately
                directed that that discretionary determination should be based on the
                totality of the
                [[Page 36283]]
                circumstances and provided a lengthy list of possibly relevant factors
                for consideration, such as, whether the alien passed through any other
                countries en route to the United States, the living conditions and
                level of safety in the countries through which the alien passed, and
                general humanitarian considerations. Matter of Pula, 19 I&N Dec. at
                473-75.
                 To date, the Secretary and Attorney General have not provided
                general guidance in agency regulations for factors to be considered
                when determining whether an alien merits asylum as a matter of
                discretion. Nevertheless, the Departments have issued regulations on
                discretionary considerations for other forms of relief, e.g., 8 CFR
                212.7(d), 1212.7(d) (discretionary decisions to consent to visa
                applications, admission to the United States, or adjustment of status,
                for certain criminal aliens), and the Departments believe it is
                similarly appropriate to establish criteria for considering
                discretionary asylum claims. This proposed regulation would build on
                the BIA's guidance regarding discretionary asylum determinations and
                codify specific factors in the regulations for the first time.
                 Accordingly, the Departments propose three specific but
                nonexhaustive factors that adjudicators must consider when determining
                whether an applicant merits the relief of asylum as a matter of
                discretion:
                 (1) An alien's unlawful entry or unlawful attempted entry into the
                United States unless such entry or attempted entry was made in
                immediate flight from persecution or torture in a contiguous country;
                 (2) subject to certain exceptions, the failure of an alien to seek
                asylum or refugee protection in at least one country through which the
                alien transited before entering the United States; and
                 (3) an alien's use of fraudulent documents to enter the United
                States, unless the alien arrived in the United States by air, sea, or
                land directly from the applicant's home country without transiting
                through any other country.
                 The adjudicator must consider all three factors, if relevant,
                during every asylum adjudication. If one or more of these factors
                applies to the applicant's case, the adjudicator would consider such
                factors to be significantly adverse for purposes of the discretionary
                determination, though the adjudicator should also consider any other
                relevant facts and circumstances to determine whether the applicant
                merits asylum as a matter of discretion. The Departments believe that
                the inclusion of the proposed factors in the rule will better ensure
                that immigration judges and asylum officers properly consider, in all
                cases, whether applicants for asylum merit the relief as a matter of
                discretion, even if the applicant has otherwise demonstrated
                eligibility for asylum.
                 First, an alien's unlawful entry, or attempted unlawful entry, has
                been a longstanding factor that adjudicators may consider as a matter
                of discretion. Matter of Pula, 19 I&N Dec. at 473 (``[A]n alien's
                manner of entry or attempted entry is a proper and relevant
                discretionary factor to consider'' as ``one of a number of factors * *
                * balanced in exercising discretion''). In addition to rendering an
                alien inadmissible in general, it is a federal criminal offense to
                enter or attempt to enter the United States other than at a time and
                place designated by immigration officers. See INA 212(a)(6)(A), 8
                U.S.C. 1182(a)(6)(A); INA 275(a)(1), 8 U.S.C. 1325(a)(1). The
                Departments remain concerned by the significant strain on their
                resources required to apprehend, process, and adjudicate the cases of
                the growing number of aliens who illegally enter the United States
                putatively in order to seek asylum. See, e.g., Aliens Subject to a Bar
                on Entry Under Certain Presidential Proclamations; Procedures for
                Protection Claims, 83 FR 55934; see also United States ex rel.
                Hintopoulos v. Shaughnessy, 353 U.S. 72, 78 (1957) (observing that
                where the statute ``does not state what standards are to guide the
                Attorney General in the exercise of his discretion'' in adjudicating a
                discretionary benefit request, ``[s]urely it is not unreasonable for
                him to take cognizance of present-day conditions'' and relevant
                congressional enactments).\34\
                ---------------------------------------------------------------------------
                 \34\ The Departments note that this adverse factor does not
                conflict with section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1),
                which provides that ``[a]ny alien who is physically present in the
                United States or who arrives in the United States (whether or not at
                a designated port of arrival * * *), irrespective of such alien's
                status, may apply for asylum.'' The consideration of the alien's
                unlawful manner of entry as a discretionary negative factor does not
                limit the alien's right or ability to apply for asylum. Instead, an
                alien who has unlawfully entered the United States is at risk of the
                same discretionary denial of asylum as any other applicant. The
                related issue of whether a regulatory bar to asylum eligibility
                based on manner of entry is ``consistent'' with section 208(a)(1)'s
                ``irrespective'' clause is currently being litigated. See supra note
                14.
                ---------------------------------------------------------------------------
                 Second, as previously explained, the Departments believe that the
                failure to seek asylum or refugee protection in at least one country
                through which an alien transited while en route to the United States
                may reflect an increased likelihood that the alien is misusing the
                asylum system as a mechanism to enter and remain in the United States
                rather than legitimately seeking urgent protection. See Asylum
                Eligibility and Procedural Modifications, 84 FR at 33831. As a result,
                the Departments would consider the failure to seek protection in such a
                third country to be a significant adverse factor. The applicant may,
                however, present evidence regarding the basis for the failure to seek
                such relief for the adjudicator's consideration as outlined in 8 CFR
                208.13(c)(4), 1208.13(c)(4).
                 Third, an alien who uses fraudulent documents to effect entry to
                the United States is inadmissible, INA 212(a)(6)(C), 8 U.S.C.
                1182(a)(6)(C), and the Departments are concerned that the use of
                fraudulent documents makes the proper enforcement of the immigration
                laws difficult and requires an immense amount of resources. The
                Departments accordingly propose to consider such use of fraudulent
                documents a significant adverse discretionary factor for the purposes
                of asylum unless an applicant arrived in the U.S. directly from the
                applicant's home country.\35\
                ---------------------------------------------------------------------------
                 \35\ For aliens from countries contiguous to the United States
                or who arrive directly (such as by air) from their home country--
                i.e., countries in which the use of fraudulent documents to escape
                persecution may be coterminous with the use of such documents to
                enter the United States-- this factor does not impact case law that
                the use of fraudulent documents to escape the country of persecution
                should not itself be a significant adverse factor. See Lin v.
                Gonzales, 445 F.3d 127, 133 (2d Cir. 2006) (noting a distinction
                ``between the presentation of a fraudulent document in immigration
                court in support of an asylum application and the use of a
                fraudulent document to escape immediate danger or imminent
                persecution''); Matter of Pula, 19 I&N Dec. at 474 (noting a
                difference between ``[t]he use of fraudulent documents to escape the
                country of persecution'' and ``entry under the assumed identity of a
                United States citizen, with a United States passport, which was
                fraudulently obtained''). For all other aliens, however, the use of
                fraudulent documents would be a significant adverse factor. To the
                extent that this provision may conflict with any prior holdings by
                the Board of Immigration Appeals, this rule would supersede such
                decisions if it is finalized as drafted.
                ---------------------------------------------------------------------------
                 Furthermore, the Departments propose nine adverse factors, the
                applicability of any of which would ordinarily result in the denial of
                asylum as a matter of discretion, similar to how discretion is
                considered for other applications. See, e.g., 8 CFR 212.7(d), 1212.7(d)
                (waiver of certain grounds of inadmissibility). If the adjudicator
                determines that any of these nine circumstances apply during the course
                of the discretionary review, the adjudicator may nevertheless favorably
                exercise discretion in extraordinary circumstances, such as those
                involving national security or foreign policy considerations, or if the
                alien demonstrates, by clear and convincing evidence, that the denial
                of asylum
                [[Page 36284]]
                would result in an exceptional and extremely unusual hardship to the
                alien. Cf. id. These factors build on prior precedent from the Attorney
                General. See Matter of Jean, 23 I&N Dec. 373, 385 (A.G. 2002)
                (providing that aliens who have committed violent or dangerous offenses
                will not be granted asylum as a matter of discretion absent
                extraordinary circumstances or a showing of exceptional and extremely
                unusual hardship); see also Matter of Castillo-Perez, 27 I&N Dec. 664,
                670-71 (A.G. 2019) (noting that aliens with multiple driving-under-the-
                influence convictions would likely be denied cancellation of removal as
                a matter of discretion due to the seriousness and repeated nature of
                the offenses).
                 Each of the nine factors addresses issues that the adjudicators
                might otherwise spend significant time evaluating and adjudicating.
                First, this rule would require a decision-maker to consider whether an
                alien has spent more than 14 days in any one country that permitted
                application for refugee, asylee, or similar protections prior to
                entering or arriving in the United States. Second, this rule would make
                transit through more than one country prior to arrival in the United
                States a significant adverse factor. Both of these factors are
                supported by existing law surrounding firm resettlement and aliens who
                can be removed to a safe third country. See INA 208(a)(2)(A),
                (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(vi); see also Yang v.
                INS, 79 F.3d 932, 935-39 (9th Cir. 1996) (upholding a discretionary
                firm resettlement bar, and rejecting the premise that such evaluation
                is arbitrary and capricious or that it prevents adjudicators from
                exercising discretion). Recognizing that individual circumstances of an
                alien's presence in a third country or transit to the United States may
                not necessarily warrant adverse discretionary consideration in all
                instances, the proposed rule does acknowledge exceptions to these two
                considerations where an alien's application for protection in the
                relevant third country has been denied, where the alien is a victim of
                a severe form of human trafficking as defined in 8 CFR 214.11, or where
                the alien was present in or transited through only countries that were,
                at the relevant time, not parties to the Refugee Convention, Refugee
                Protocol, or CAT.
                 Third, adjudicators should consider criminal convictions that
                remain valid for immigration purposes as significant adverse factors. A
                conviction remains valid for immigration purposes despite a reversal,
                vacatur, expungement, or modification of conviction or sentence if the
                alteration is not related to a procedural or substantive defect in the
                underlying criminal proceedings. See Matter of Thomas & Thompson, 27
                I&N Dec. 674, 674-75 (A.G. 2019) (holding that state court orders
                unrelated to the merits of an underlying criminal proceeding have no
                effect on the validity of the conviction for immigration purposes); see
                also Matter of Pickering, 23 I&N Dec. 621, 624-25 (BIA 2003) (holding
                that a conviction that is vacated for reasons solely related to
                rehabilitation or immigration hardships is not eliminated for
                immigration purposes), rev'd on other grounds, Pickering v. Gonzales,
                465 F.3d 263, 267-70 (6th Cir. 2006).\36\ Circuit courts of appeals
                have consistently accepted this principle, deeming Pickering reasonable
                and consistent with congressional intent. See, e.g., Saleh v. Gonzales,
                495 F.3d 17, 23-25 (2d Cir. 2007) (collecting cases). As the Attorney
                General has explained, giving effect to judicial decisions that
                modified sentences in some manner for the sole purpose of mitigating
                immigration consequences would frustrate Congress's intent in setting
                forth those consequences for aliens convicted of certain crimes. See
                Matter of Thomas & Thompson, 27 I&N Dec. at 682 (explaining that by
                enacting the definition of ``conviction'' at section 101(a)(48) of the
                INA, 8 U.S.C. 1101(a)(48), ``Congress made clear that immigration
                consequences should flow from the original determination of guilt. In
                addition, Congress ensured uniformity in the immigration laws by
                avoiding the need for immigration judges to examine the post-conviction
                procedures of each State''); see also Saleh, 495 F.3d at 25 (``When a
                conviction is amended nunc pro tunc solely to enable a defendant to
                avoid immigration consequences, in contrast to an amendment or vacatur
                on the merits, there is no reason to conclude that the alien is any
                less suitable for removal.'').
                ---------------------------------------------------------------------------
                 \36\ The Departments published a joint rule on December 19,
                2019, that, inter alia, would provide regulatory guidance regarding
                the immigration consequences of criminal convictions that have been
                vacated, expunged, or modified. See Procedures for Asylum and Bars
                to Asylum Eligibility, 84 FR 69640 (Dec. 19, 2019) (proposed
                amendments to 8 CFR 208.13 and 1208.13).
                ---------------------------------------------------------------------------
                 Fourth, unlawful presence of more than one year's cumulative
                duration prior to filing an application for asylum would be considered
                a significant adverse factor, consistent with the unlawful presence
                bar, INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II), and the
                permanent bar under section 212(a)(9)(C) of the INA, 8 U.S.C.
                1182(a)(9)(C). See also Matter of Diaz & Lopez, 25 I&N Dec. 188, 189
                (BIA 2010).
                 Fifth, failure to file taxes or fulfill related obligations would
                be another adverse factor. Subject to some exceptions, aliens are
                generally required to file federal income tax returns, as either a
                resident or nonresident alien. 26 U.S.C. 6012, 7701(b); 26 CFR 1.6012-
                1(a)(1)(ii), (b).\37\ This rule would hold all asylum applicants to the
                same standards as most individuals in the United States who are
                required to file federal, state, and local taxes, as individuals who
                are required to file taxes are subject to negative consequences should
                said filings and associated obligations not be met. See, e.g., Md.
                Code, Tax-Gen. 10-804, 10-805(a) (2013) (subject to exclusion of
                certain types of income, a Maryland resident required to file a federal
                income tax return is also required to file a state income tax return);
                Ind. Code, 6-3-4-1 (2019) (persons whose income meets federal filing
                threshold are required to file a state return).
                ---------------------------------------------------------------------------
                 \37\ The Internal Revenue Service (``IRS'') uses two tests to
                determine whether an alien is considered a resident alien of the
                United States for tax purposes: The ``green card'' test and the
                ``substantial presence'' test. An alien meets the ``green card''
                test if USCIS has issued the alien a registration card, Form I-551,
                designating the alien as a lawful permanent resident. IRS, Alien
                Residency--Green Card Test, https://www.irs.gov/individuals/international-taxpayers/alien-residency-green-card-test (last
                updated Feb. 20, 2020). An alien meets the ``substantial presence''
                test if he or she has been physically present in the United States
                for 31 days of the current year and 183 days during the three-year
                period that includes the current year and the two years immediately
                prior, including all of the following: (1) All days an alien was
                present in the current year, (2) one-third of the days the alien was
                present in the first year before the current year, and (3) one-sixth
                of the days the alien was present in the second year before the
                current year. IRS, Substantial Presence Test, https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test (last
                updated Jan. 15, 2020). There are certain exceptions to this rule.
                Id. Non-resident aliens who pass the ``substantial presence'' test
                are treated as resident aliens for tax purposes.
                ---------------------------------------------------------------------------
                 Sixth, this rule would consider as an adverse factor having had two
                or more prior asylum applications denied for any reason.
                 Seventh, the rule would also consider as an adverse factor having
                withdrawn with prejudice or abandoned an asylum application. This rule
                would thereby disfavor abusive prior or multiple applications. Asylum
                applications take a significant portion of processing time and already
                constitute half of the docket in immigration court. This rule would
                minimize abuse of the system--and allow for meritorious claims to be
                heard more efficiently--by disfavoring repeated applications when prior
                [[Page 36285]]
                applications have been abandoned or withdrawn.
                 Eighth, DHS already may dismiss the case of an alien who fails to
                attend his or her asylum interview, without prior authorization or in
                the absence of exceptional circumstances. INA 208(d)(5)(A)(v), 8 U.S.C.
                1158(d)(5)(A)(v). Such an applicant may also ``be otherwise sanctioned
                for such failure.'' Id. The Departments' consideration of an alien's
                failure to attend the asylum interview,\38\ unless the alien
                demonstrates by a preponderance of the evidence the existence of
                exceptional circumstances or that the interview notice was not mailed
                to the last address provided by the alien or the alien's representative
                (and neither the alien nor the alien's representative received notice
                of the interview), as an adverse discretionary factor is a reasonable
                additional sanction under section 208(d)(5)(A)(v) of the INA, 8 U.S.C.
                1158(d)(5)(A)(v). As with the failure to appear in immigration court,
                failure to appear for an asylum interview before DHS wastes government
                resources that could have been used to adjudicate other applications.
                See DHS, Affirmative Asylum Application Statistics and Decisions Annual
                Report 3 (June 20, 2016) (reporting 2,439 cases that USCIS referred to
                immigration judges because asylum applicants failed to appear for
                interviews or withdrew their applications and were not in lawful
                immigration status during Fiscal Year 2015).
                ---------------------------------------------------------------------------
                 \38\ On November 14, 2019, DHS proposed modifications to the
                asylum process, including changes to the provisions related to
                failing to appear for an asylum interview. See Asylum Application,
                Interview, and Employment Authorization for Applicants, 86 FR 62374
                (Nov. 14, 2019). The Departments do not believe the proposals
                conflict, but welcome public comment.
                ---------------------------------------------------------------------------
                 Ninth, aliens who are subject to a final order of removal may file
                a motion to reopen their proceedings before an immigration judge to
                seek asylum if there is a change in country conditions and the
                underlying evidence of changed conditions is material and was not
                available or could not have been discovered at the time of the prior
                hearing. INA 240(c)(7), 8 U.S.C. 1229a(c)(7). In such situations,
                adjudicators should consider as a significant adverse factor the
                failure to file such a motion within one year of the change in country
                conditions. See INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii); 8
                CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i). The Departments believe that
                such a factor would appropriately incentivize aliens to exercise due
                diligence with regard to their cases, as is otherwise required for
                motions to reopen, and aid in the efficient processing of asylum
                applications before EOIR. Cf. INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B);
                Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007) (discussing the
                requirement of acting with due diligence in order to establish
                equitable tolling of the filing deadline for motions to reopen asylum
                proceedings premised upon an allegation of ineffective assistance of
                counsel).
                 The factors set forth in this rule do not affect the adjudicator's
                ability to consider whether there exist extraordinary circumstances,
                such as those involving national security or foreign policy
                considerations, or whether the denial of asylum would result in an
                exceptional and extremely unusual hardship to the alien. Cf. Matter of
                Jean, 23 I&N Dec. at 385 (``I am highly disinclined to exercise my
                discretion--except, again, in extraordinary circumstances, such as
                those involving national security or foreign policy considerations, or
                cases in which an alien clearly demonstrates that the denial of relief
                would result in exceptional and extremely unusual hardship--on behalf
                of dangerous or violent felons seeking asylum.''). This approach
                supersedes the Board's previous approach in Matter of Pula that past
                persecution or a strong likelihood of future persecution ``should
                generally outweigh all but the most egregious adverse factors.'' 19 I&N
                Dec. at 474. Especially given that an applicant may still seek non-
                discretionary statutory withholding of removal and protection under the
                CAT regulations, the Departments believe that the inclusion of the
                proposed adverse discretionary factors in the rule will ensure that
                immigration judges and asylum officers properly consider, in all cases,
                whether every applicant merits a grant of asylum as a matter of
                discretion, even if the applicant has otherwise demonstrated asylum
                eligibility.
                7. Firm Resettlement
                 By statute, an alien who ``was firmly resettled in another country
                prior to arriving in the United States'' is ineligible for asylum. INA
                208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). This bar to asylum was
                first included in the asylum laws by IIRIRA in 1996, but Congress added
                it as a prohibition to entry as a refugee from abroad in 1980. Refugee
                Act of 1980, sec. 201(b), 94 Stat. 103 (adding INA 207(c)(1), 8 U.S.C.
                1157(c)(1)).\39\ Before IIRIRA's enactment, the Attorney General also
                included firm resettlement as a bar to asylum under section 208 of the
                INA, 8 U.S.C. 1158, by regulation. See Aliens and Nationality; Refugee
                and Asylum Procedures, 45 FR 37392, 37394 (June 2, 1980) (adding part
                208 to chapter I of 8 CFR, including the instruction at 8 CFR
                208.8(f)(1)(ii) that a request for asylum would be denied if the alien
                ``has been firmly resettled in a foreign country''); \40\ see also
                Yang, 79 F.3d at 935-39 (according Chevron deference to the inclusion
                of firm resettlement as a bar to asylum in the regulations).
                ---------------------------------------------------------------------------
                 \39\ The firm resettlement concept has an even longer history in
                the immigration laws. See Rosenberg v. Woo, 402 U.S. 49, 54-55
                (1971) (discussing the inclusion of firm resettlement considerations
                in the Displaced Persons Act of 1948 and Refugee Relief Act of 1953,
                and the subsequent history).
                 \40\ DOJ also included a definition of ``firm resettlement'' in
                the context of refugee status determinations under section 207 of
                the INA, 8 U.S.C. 1157, in 1980, providing generally that a refugee
                is considered to be ``firmly resettled'' if he had been offered
                resident status, citizenship, or some other type of permanent
                resettlement by another nation and has travelled to and entered that
                nation as a consequence of his flight from persecution. A refugee
                will not be considered ``firmly resettled,'' however, if he
                establishes, to the satisfaction of the federal official reviewing
                the case, that the conditions of his residence in that nation have
                been so substantially and consciously restricted by the authorities
                of that nation that he has not in fact been resettled. See Aliens
                and Nationality; Refugee and Asylum Procedures, 45 FR at 37394. This
                definition continues to apply in substantially similar form to DHS
                determinations regarding the admission of refugees. 8 CFR 207.1(b).
                The Departments do not propose any changes to the definition or
                application of the firm resettlement bar for refugees in this rule.
                ---------------------------------------------------------------------------
                 DOJ first defined ``firm resettlement'' in the context of asylum
                applications in 1990. Aliens and Nationality; Asylum and Withholding of
                Deportation Procedures, 55 FR 30674, 30683-84 (July 27, 1990) (adding 8
                CFR 208.15 to part 208 of chapter 1 of 8 CFR). At the time, DOJ did not
                provide an explanation for the chosen definition, although it was
                similar to the existing definition of firm resettlement for refugees.
                Id. at 30678. Aside from technical edits, and minor updates to ensure
                gender neutrality and change references from ``nation'' to ``country,''
                the definition of firm resettlement has remained the same for nearly 30
                years. See 8 CFR 208.15, 1208.15.
                 Due to the increased availability of resettlement opportunities
                \41\ and the interest of those genuinely in fear of persecution in
                attaining safety as soon as possible, the Departments now
                [[Page 36286]]
                propose to revise the definition of firm resettlement that applies to
                asylum adjudications at 8 CFR 208.15 and 1208.15. Specifically, the
                Departments propose to specify three circumstances under which an alien
                would be considered firmly resettled:
                ---------------------------------------------------------------------------
                 \41\ Forty-three countries have signed the Refugee Convention
                since 1990. See United Nations High Commissioner for Refugees,
                States Parties to the 1951 Convention relating to the Status of
                Refugees and the 1967 Protocol, https://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html (last visited May 20, 2020).
                ---------------------------------------------------------------------------
                 (1) The alien either resided or could have resided in any permanent
                legal immigration status or any non-permanent but potentially
                indefinitely renewable legal immigration status (including asylee,
                refugee, or similar status, but excluding a status such as a tourist)
                in a country through which the alien transited prior to arriving in or
                entering the United States, regardless of whether the alien applied for
                or was offered such status, cf. Matter of K-S-E-, 27 I&N Dec. 818, 819
                (BIA 2020) (``Permanent resettlement exists where there is an available
                offer that realistically permits an individual's indefinite presence in
                the country.''); Matter of A-G-G-, 25 I&N Dec. 486, 502 (BIA 2011)
                (``The existence of a legal mechanism in the country by which an alien
                can obtain permanent residence may be sufficient to make a prima facie
                showing of an offer of firm resettlement * * *. Moreover, a
                determination of firm resettlement is not contingent on whether the
                alien applies for that status.'' (citations and footnote omitted));
                 (2) the alien physically resided voluntarily, and without
                continuing to suffer persecution, in any one country for one year or
                more after departing his country of nationality or last habitual
                residence and prior to arrival in or entry into the United States; or
                 (3) (i) the alien is a citizen of a country other than the one
                where the alien alleges a fear of persecution and the alien was present
                in that country prior to arriving in the United States, or (ii) the
                alien was a citizen of a country other than the one where the alien
                alleges a fear of persecution, the alien was present in that country
                prior to arriving in the United States, and the alien renounced that
                citizenship prior to or after arriving in the United States.
                 These proposed changes would expand the firm resettlement bar to
                include forms of relief that were available to an alien in a country in
                which he or she resided before traveling to the United States, even if
                the alien did not affirmatively apply for or accept such relief. If an
                alien was legally ``entitled to permanent refuge in another country''
                in which the alien resided, that entitlement may result in the alien
                being firmly resettled there, even if the alien ``fail[ed] to take
                advantage of [that country's] procedures for obtaining [such] relief.''
                Matter of A-G-G-, 25 I&N Dec. at 502 (quoting Elzour v. Ashcroft, 378
                F.3d 1143, 1152 (10th Cir. 2004). It follows a fortiori, then, that an
                alien to whom an offer of permanent legal status was actually made may
                be considered to have firmly resettled, Matter of K-S-E-, 27 I&N Dec.
                at 819-20, and that such an offer may not be ``negated by the alien's
                unwillingness or reluctance to satisfy the [reasonable] terms for
                acceptance,'' id. at 821. Not only do these changes recognize that an
                alien fleeing persecution would ordinarily be expected to seek refuge
                at the first available opportunity in another country where they would
                not have a reasonable fear of persecution or torture, but they will
                also ensure that the asylum system is used by those in genuine need of
                immediate protection, not by those who have chosen the United States as
                a destination for other reasons and then rely on the asylum system to
                reach that destination. See Matter of A-G-G-, 25 I&N Dec. at 503
                (clarifying that the purpose of the firm settlement bar is to ``limit
                refugee protection to those with nowhere else to turn'').
                 The Departments further propose to specify that the firm
                resettlement bar applies ``when the evidence of record indicates that
                the firm resettlement bar may apply,'' and to specifically allow both
                DHS and the immigration judge to first raise the issue based on the
                record evidence. This proposal would make clear that the alien would
                continue to bear the burden to demonstrate that the firm resettlement
                bar does not apply, consistent with 8 CFR 1240.8(d). Finally, the
                Departments propose that the firm resettlement of a parent or parents
                with whom a child was residing at the time shall be imputed to the
                child. Although the Departments have had no prior settled policy
                necessarily imputing the firm resettlement of parents to a child,
                Holder v. Martinez Gutierrez, 566 U.S. 583, 596 n.4 (2012), the
                imputation proposed in this rule is consistent with both case law and
                recognition of the practical reality that a child generally cannot form
                a legal intent to remain in one place. See, e.g., Matter of Ng, 12 I&N
                Dec. 411 (Reg. Comm'r 1967) (firm resettlement of father is imputed to
                a child who resided with his resettled family); Vang v. INS, 146 F.3d
                1114, 1116-17 (9th Cir. 1998) (``We follow the same principle in
                determining whether a minor has firmly resettled in another country,
                i.e., we look to whether the minor's parents have firmly resettled in a
                foreign country before coming to the United States, and then
                derivatively attribute the parents' status to the minor.'').
                 To the extent any BIA decisions relied on prior regulatory language
                and remain inconsistent with the proposed new regulatory language, the
                proposed changes would expressly overrule those BIA decisions.
                8. Rogue Officials
                 In order to demonstrate eligibility for withholding of removal or
                deferral of removal under the CAT regulations, an alien must
                demonstrate that it is more likely than not that he or she will be
                tortured in the country of removal. See 8 CFR 1208.16(c)(2). Torture is
                defined as causing ``severe pain or suffering, whether physical or
                mental,'' and it must be intentionally inflicted ``by or at the
                instigation of or with the consent or acquiescence of a public official
                or other person acting in an official capacity,'' among other
                requirements. 8 CFR 1208.18(a)(1). The regulations do not provide
                further guidance for determining what sorts of officials constitute
                ``public officials,'' including whether an official such as a police
                officer is a public official for the purposes of the CAT regulations if
                he or she acts in violation of official policy or his or her official
                status--in other words, a ``rogue'' police official.
                 When faced with questions of such ``rogue'' officials, the federal
                courts have generally implied from the lack of further explanation
                regarding the definition of ``public official'' that no exception
                excluding ``rogue'' officials from the definition exists. The Ninth
                Circuit Court of Appeals recently provided a particularly detailed
                explanation of this point:
                 The statute and regulations do not establish a ``rogue
                official'' exception to CAT relief. The regulations say that
                torture, for purposes of relief, has to be ``at the instigation of
                or with the consent or acquiescence of a public official or other
                person acting in an official capacity.'' The four policemen were
                ``public officials,'' even though they were local police and state
                or federal authorities might not similarly acquiesce. Since the
                officers were apparently off-duty when they tortured Barajas-Romero,
                they were evidently not acting ``in an official capacity,'' but the
                regulation does not require that the public official be carrying out
                his official duties, so long as he is the actor or knowingly
                acquiesces in the acts. The regulation uses the word ``or'' between
                the phrases ``inflicted by * * * a public official'' and ``acting in
                an official capacity.'' The word ``or'' can only mean that either
                one suffices, so the torture need not be both by a public official
                and also that the official is acting in his official capacity. An
                ``and'' construction would require that the conjunction be ``and.''
                The record leaves no room for doubt that the four policemen were
                public officials who themselves inflicted the torture.
                [[Page 36287]]
                 Barajas-Romero v. Lynch, 846 F.3d 351, 362-63 (9th Cir. 2017); see
                also Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1139 (7th Cir. 2015)
                (``Nor is the issue, as the immigration judge opined, whether the
                police officers who tortured the petitioner `were rogue officers
                individually compensated by Jose to engage in isolated incidents of
                retaliatory brutality, rather than evidence of a broader pattern of
                governmental acquiescence in torture.' It is irrelevant whether the
                police were rogue (in the sense of not serving the interests of the
                Mexican government) or not.''). But see Suarez-Valenzuela v. Holder,
                714 F.3d 241, 248 (4th Cir. 2013) (upholding the BIA's finding that a
                rogue police officer who harmed the respondent ``acted out of fear that
                the government would punish him and not with any form of government
                approval''); Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003)
                (``Moreover, although the BIA was bound to consider any past torture
                inflicted upon Wang by Chinese officials, 8 CFR 208.16(c)(3), Wang
                failed to establish that his alleged previous beating was anything more
                than a deviant practice carried out by one rogue military official.'').
                 The Departments propose revising 8 CFR 208.18(a)(1), (7) and
                1208.18(a)(1), (7) to clarify (1) that pain or suffering inflicted by,
                or at the instigation of or with the consent or acquiescence of, a
                public official is not torture unless it is done while the official is
                acting in his or her official capacity (i.e. under ``color of law'')
                and (2) that pain or suffering inflicted by, or at the instigation of
                or with the consent or acquiescence of, a public official not acting
                under color of law (i.e., a ``rogue official'') does not constitute a
                ``pain or suffering inflicted by or at the instigation of or with the
                consent or acquiescence of a public official or other person acting in
                an official capacity,'' even if such actions cause pain and suffering
                that could rise to the severity of torture. Nothing in CAT or the CAT
                regulations issued pursuant to the implementing legislation indicates
                that any violent action of someone who happens to be employed by a
                government entity always constitutes inflicting, instigating,
                consenting to, or acquiescing in severe harm or suffering by a public
                official even when that employee is off-duty or not acting in any
                official governmental capacity. Indeed, the U.S. ratification history
                of the CAT specifically approves of a ``color of law'' analysis. See,
                e.g., S. Exec. Rep. No. 101-30, at 14 (1990) (``Thus, the Convention
                applies only to torture that occurs in the context of governmental
                authority, excluding torture that occurs as a wholly private act or, in
                terms more familiar in U.S. law, it applies to torture inflicted `under
                color of law.'''). Further, the Federal statute partially implementing
                CAT in the criminal law context uses a color of law descriptor as well.
                See 18 U.S.C. 2340(1) (```[T]orture' means an act committed by a person
                acting under the color of law specifically intended to inflict severe
                physical or mental pain or suffering (other than pain or suffering
                incidental to lawful sanctions) upon another person within his custody
                or physical control.''). As the BIA has explained, ``the key
                consideration in determining if a public official was acting under
                color of law is whether he was able to engage in torturous conduct
                because of his government position or if he could have done so without
                any connection to the government. Issues to consider in making this
                determination include whether government connections provided the
                officer access to the victim, or to his whereabouts or other
                identifying information; whether the officer was on duty and in uniform
                at the time of his conduct; and whether the officer threatened to
                retaliate through official channels if the victim reported his conduct
                to authorities.'' Matter of O-F-A-S, 27 I&N Dec. 709, 718 (BIA 2019).
                This proposed amendment to 8 CFR 208.18 and 1208.18 clarifies that the
                requirement that the individual be acting in an official capacity
                applies to both a ``public official,'' such as a police officer, and an
                ``other person,'' such as an individual deputized to act on the
                government's behalf.
                 The Departments also propose to clarify the definition of
                ``acquiescence of a public official'' at 8 CFR 208.18(a)(7) and
                1208.18(a)(7). See Scarlett v. Barr, __F.3d __, 2020 WL 2046544, *13-14
                (2d Cir. April 28, 2020) (discussing the need for further agency
                guidance concerning certain aspects of the ``acquiescence'' standard).
                The current definition provides that the ``official acquiescence''
                standard ``requires that the public official, prior to the activity
                constituting torture, have awareness of such activity and thereafter
                breach his or her legal responsibility to intervene to prevent such
                activity.'' 8 CFR 208.18(a)(7), 1208.18(a)(7). The Departments propose
                to clarify that, as several courts of appeals and the BIA have
                recognized, ``awareness''--as used in the CAT ``acquiescence''
                definition--requires a finding of either actual knowledge or willful
                blindness. See, e.g., Silva-Rengifo v. Att'y Gen. of U.S., 473 F.3d 58,
                70 (3d Cir. 2007); Matter of J-G-D-F-, 27 I&N Dec. 82, 90 (BIA 2017);
                see also S. Exec. Rep. No. 101-30, at 9. The Departments further
                propose to clarify in this rule that, for purposes of the CAT
                regulations, ``willful blindness'' means that ``the public official or
                other person acting in an official capacity was aware of a high
                probability of activity constituting torture and deliberately avoided
                learning the truth; it is not enough that such public official acting
                in an official capacity or other person acting in an official capacity
                was mistaken, recklessly disregarded the truth, or negligently failed
                to inquire.'' Proposed 8 CFR 208.18(a)(7), 1208.18(a)(7). This proposed
                definition is drawn from well-established legal principles. See, e.g.,
                Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769-70 (2011);
                United States v. Hansen, 791 F.3d 863, 868 (8th Cir. 2015); United
                States v. Heredia, 483 F.3d 913, 918 n.4, 924 (9th Cir. 2007) (en
                banc); Roye v. Att'y Gen. of U.S., 693 F.3d 333, 343 n.13 (3d Cir.
                2012).
                 Additionally, the rule clarifies the second part of the two-part
                test for acquiescence set out in the Senate's understanding in the CAT
                ratification documents. See 136 Cong. Rec. S17486-01, 1990 WL 168442
                (Oct. 27, 1990). In the ratification process, the United States
                government was concerned that the definition of torture needed to be
                clear enough to give officials due process notice of what conduct was
                criminal. See Convention Against Torture: Hearing Before the S. Foreign
                Relations Comm., S. Hrg. No. 101-718, 101st Cong., 2d Sess. 14 (1990)
                (testimony of Mark Richard, Deputy Assistant Att'y Gen., Criminal
                Division, U.S. Department of Justice). The two steps of the
                acquiescence requirement, corresponding to a mens rea and an actus reus
                requirement, were included in the list of understandings to clarify
                that ``to be culpable under the [CAT] * * * the public official must
                have had prior awareness of [the activity constituting torture] and
                must have breached his legal responsibility to intervene to prevent the
                activity.'' Id. The rule clarifies that acquiescence is not established
                by prior awareness of the activity alone, but requires an omission of
                an act that the official had a duty to do and was able to do. Cf. Model
                Penal Code sec. 2.01(1) (``A person is not guilty of an offense unless
                his liability is based on conduct that includes a voluntary act or the
                omission to perform an act of which he is physically capable.'').
                First, the official or other person in question must have been charged
                with preventing the activity as part of his or her duties. So,
                [[Page 36288]]
                for instance, an official who is not charged with preventing crime or
                who is outside his or her jurisdiction would not have a legal
                responsibility to prevent activity constituting torture, even if that
                person was aware of the activity. See, e.g., Ramirez-Peyro v. Holder,
                574 F.3d 893, 905 (8th Cir. 2009) (remanding for further analysis by
                the Board on whether police officers breached their legal duty to
                intervene when they declined to arrest themselves, their co-workers,
                and other individuals who assaulted the applicant). Second, such a
                person does not breach a legal duty to intervene if the person is
                unable to intervene, or if the person intervenes, but is nevertheless
                unable to prevent the activity. See, e.g., Martinez Manzanares v. Barr,
                925 F.3d 222, 229 (5th Cir. 2019); Zaldana Menijar v. Lynch, 812 F.3d
                491, 502 (6th Cir. 2015); Garcia v. Holder, 746 F.3d 869, 873-74 (8th
                Cir. 2014); Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir.
                2014); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Reyes-
                Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004). This
                aspect of the rule is meant to supersede any judicial decisions that
                could be read to hold that an official actor could acquiesce in
                torturous activities that he or she is unable to prevent. See, e.g.,
                Pieschacon-Villegas v. Att'y Gen., 671 F.3d 303, 311-12 (3d Cir. 2011);
                Sarhan v. Holder, 658 F.3d 649, 657-60 (7th Cir. 2011) (holding that
                the government's ineffectiveness at protecting women from honor
                killings showed governmental acquiescence); see generally Nat'l Cable &
                Telecomms. Ass'n v. Brand X internet Servs., 545 U.S. 967, 982 (2005).
                D. Information Disclosure
                 The regulations at 8 CFR 208.6 and 1208.6 govern the disclosure of
                information contained in or pertaining to an asylum application,
                credible fear records, and reasonable fear records. The nondisclosure
                provisions in 8 CFR 208.6(a)-(b) and 1208.6(a)-(b) cover
                ``[i]nformation contained in or pertaining to any asylum application,''
                records pertaining to any credible fear or reasonable fear
                determination, and other records kept by the Departments that indicate
                that a specific alien has applied for asylum or received a credible
                fear or reasonable fear interview or review thereof. The ``asylum
                application'' includes information pertaining to statutory withholding
                of removal, 8 U.S.C. 1231(b)(3), and protection under the CAT
                regulations. See 8 CFR 208.3(b), 1208.3(b). The regulations prohibit
                disclosing protected information to unauthorized ``third parties'' but
                are silent, save by exception, as to who constitutes an unauthorized
                third party. Under the exceptions for nondisclosure contained in 8 CFR
                208.6(c) and 1208.6(c), certain limited categories of persons and
                entities may receive otherwise-confidential asylum-related or other
                pertinent information for certain purposes. This includes a disclosure
                to any U.S. government official or contractor having a need to examine
                information in connection with the adjudication of an asylum
                application or consideration of a credible fear or reasonable fear
                claim. 8 CFR 208.6(c)(1)(i)-(ii) and 1208.6(c)(1)(i)-(ii). Accordingly,
                DHS and EOIR employees, and aliens' representatives of record, are not
                considered unauthorized third parties for purposes of the existing
                regulation.\42\ Further, the Attorney General and Secretary of Homeland
                Security have the discretion to disclose any such information to any
                party. 8 CFR 208.6(a), 1208.6(a).
                ---------------------------------------------------------------------------
                 \42\ Further, the sharing of information between the Departments
                regarding an alien in immigration proceedings does not constitute a
                disclosure under these regulations and is otherwise excepted
                pursuant to 8 CFR 208.6(c) and 1208.6(c). As DHS is a party to all
                proceedings before EOIR, any records related to an aliens in such
                proceedings possessed by EOIR are also necessarily already possessed
                by DHS.
                ---------------------------------------------------------------------------
                 The Departments propose changes to 8 CFR 208.6 and 8 CFR 1208.6 to
                clarify that information may be disclosed in certain circumstances that
                directly relate to the integrity of immigration proceedings, including
                situations in which there is suspected fraud or improper duplication of
                applications or claims. An alien's decision to apply for asylum
                necessarily entails the alien's decision to provide the Government with
                information necessary to determine whether the person deserves refuge
                in the United States. Within the immigration system in the United
                States, such information does not exist in a vacuum, and there is a
                clear need to ensure that the confidentiality provisions are not being
                used to shield fraud and abuse that can only be uncovered by comparing
                applications and information across proceedings. Further, there is need
                to ensure that other types of criminal activity are not shielded from
                investigation and prosecution due to the confidentiality provisions.
                Furthermore, the proposed changes allow the information to be disclosed
                where it is necessary to the Government's defense of any legal action
                relating to the alien's immigration or custody status. Aliens routinely
                file suit in both district courts and courts of appeals raising an
                assortment of challenges to their immigration and custody status.
                Although the current regulation allows disclosure where the suit arises
                from the adjudication of an asylum application or of which the asylum
                application ``is a part,'' there is no clear exception covering
                disclosures in other civil immigration litigation in which it is
                necessary for the Government to disclose this information in order to
                fully defend the Government's position.
                 As such, the Department proposes to amend 8 CFR 208.6 and 8 CFR
                1208.6 to specify that to the extent not already specifically
                permitted, and without the necessity of seeking the exercise of the
                Attorney General's or Secretary's discretion under paragraphs 208.6(a)
                and 1208.6(a), respectively, the Government may disclose \43\ all
                relevant and applicable information in or pertaining to the application
                for asylum, statutory withholding of removal, and protection under the
                CAT regulations as part of a federal or state investigation,
                proceeding, or prosecution; as a defense to any legal action relating
                to the alien's immigration or custody status; an adjudication of the
                application itself or an adjudication of any other application or
                proceeding arising under the immigration laws; pursuant to any state or
                federal mandatory reporting requirement; and to deter, prevent, or
                ameliorate the effects of child abuse.
                ---------------------------------------------------------------------------
                 \43\ Nothing in the proposed rule would prohibit agencies from
                placing additional restrictions on the disclosure of information
                consistent with internal policies as long as those policies do not
                conflict with the proposed regulatory language.
                ---------------------------------------------------------------------------
                E. Severability
                 The Departments are proposing severability provisions in each of
                the new 8 CFR parts. The Departments believe that the provisions of
                each new part function sensibly independent of other provisions.
                However, to protect the goals for which this rule is being proposed,
                the Departments are codifying their intent that the provisions be
                severable so that, if necessary, the regulations can continue to
                function without a stricken provision.
                V. Regulatory Requirements
                A. Regulatory Flexibility Act
                 The Departments have reviewed this regulation in accordance with
                the Regulatory Flexibility Act (5 U.S.C. 605(b)) and have determined
                that this rule will not have a significant economic impact on a
                substantial number of small entities. This regulation affects only
                individual aliens and the Federal Government.
                [[Page 36289]]
                Individuals do not constitute small entities under the Regulatory
                Flexibility Act.
                B. Unfunded Mandates Reform Act of 1995
                 This rule will not result in the expenditure by state, local, and
                tribal governments, in the aggregate, or by the private sector, of $100
                million or more in any one year, and it will not significantly or
                uniquely affect small governments. Therefore, no actions were deemed
                necessary under the provisions of the Unfunded Mandates Reform Act of
                1995.
                C. Congressional Review Act
                 This proposed rule is anticipated not to be a major rule as defined
                by section 804 of the Congressional Review Act. This rule will not
                result in an annual effect on the economy of $100 million or more; a
                major increase in costs or prices; or significant adverse effects on
                competition, employment, investment, productivity, innovation, or on
                the ability of United States-based enterprises to compete with foreign-
                based enterprises in domestic and export markets. 5 U.S.C. 804(2).
                D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning
                and Review)
                 The proposed rule is considered by the Departments to be a
                ``significant regulatory action'' under section 3(f)(4) of Executive
                Order 12866 because it raises novel legal or policy issues.
                Accordingly, the regulation has been submitted to the Office of
                Management and Budget (``OMB'') for review.
                 Executive Orders 12866 and 13563 direct agencies to assess all
                costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits (including potential economic, environmental, public
                health, and safety effects, distributive impacts, and equity).
                Executive Order 13563 emphasizes the importance of using the best
                available methods to quantify costs and benefits, reducing costs,
                harmonizing rules, and promoting flexibility.
                 The proposed rule would change or provide additional clarity for
                adjudicators across many issues commonly raised by asylum applications
                and would potentially streamline the overall adjudicatory process for
                asylum applications. Although the proposed regulation would provide
                clarity to asylum law and operational streamlining to the credible fear
                review process, the proposed regulation does not change the nature of
                the role of an immigration judge or an asylum officer during
                proceedings for consideration of credible fear claims or asylum
                applications. Notably, immigration judges will retain their existing
                authority to review de novo the determinations made by asylum officers
                in a credible fear proceedings, and will continue to control
                immigration court proceedings. In credible fear proceedings, asylum
                officers will continue to evaluate the merits of claims for asylum,
                withholding of removal, and CAT protection for possible referral to the
                immigration judge. While this rule expands the bases on which an asylum
                officer may determine that a claim does not merit referral (and, as a
                consequence, make a negative fear determination), the alien will still
                be able to seek review of that negative fear determination before the
                immigration judge.
                 Immigration judges and asylum officers are already trained to
                consider all relevant legal issues in assessing a credible fear claim
                or asylum application, and the proposed rule does not propose any
                changes that would make adjudications more challenging than those that
                are already conducted. For example, immigration judges already consider
                issues of persecution, nexus, particular social group, frivolousness,
                firm resettlement, and discretion in assessing the merit of an asylum
                application, and the provision of clearer standards for considering
                those issues in the proposed regulation does not add any operational
                burden or increase the level of operational analysis required for
                adjudication. Accordingly, the Departments do not expect the proposed
                changes to increase the adjudication time for immigration court
                proceedings involving asylum applications or for reviews of negative
                fear determinations.
                 Depending on the manner in which DHS exercises its prosecutorial
                discretion for aliens potentially subject to expedited removal, the
                facts and circumstances of each individual alien's situation, and the
                Departments' interpretation and implementation of the relevant
                regulations by individual adjudicators, the proposed changes may
                decrease the number of cases of aliens subject to expedited removal
                that result in a full hearing on an application for asylum. In all
                cases, however, an alien will retain the opportunity to request
                immigration judge review of DHS's initial fear determination.
                 The Departments propose changes that may affect any alien subject
                to expedited removal who makes a fear claim and any alien who applies
                for asylum, statutory withholding of removal, or protection under the
                CAT regulations. The Departments note that the proposed changes are
                likely to result in fewer asylum grants annually due to clarifications
                regarding the significance of discretionary considerations and changes
                to the definition of firm resettlement. However; because asylum
                applications are inherently fact-specific, and because there may be
                multiple bases for denying an asylum application, neither DOJ nor DHS
                can quantify precisely the expected decrease. As of April 24, 2020,
                EOIR had 527,927 cases pending with an asylum application. In FY 2019,
                at the immigration court level, EOIR granted 18,816 asylum applications
                and denied 45,285 asylum applications. An additional 27,112 asylum
                applications were abandoned, withdrawn, or otherwise not adjudicated.
                As of January 1, 2020, USCIS had 338,931 applications for asylum and
                for withholding of removal pending.\44\ In FY 2019, USCIS received
                96,861 asylum applications, and approved 19,945 such applications.\45\
                ---------------------------------------------------------------------------
                 \44\ See USCIS, Number of Service-wide Forms Fiscal Year to
                Date, by Quarter and Form Status, Fiscal Year 2020, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/Quarterly_All_Forms_FY2020Q1.pdf (last visited
                May 28, 2020).
                 \45\ See USCIS, Number of Service-wide Forms Fiscal Year to
                Date, by Quarter, and Form Status, Fiscal Year 2019, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/Quarterly_All_Forms_FY19Q4.pdf (last visited May
                28, 2020).
                 The data in this report only include approvals or denials (i.e.,
                asylum applicants otherwise in lawful status who were not found
                eligible for asylum by USCIS). Denials do not include out-of-status
                cases that were not found eligible for asylum and then were referred
                by USCIS to immigration court.
                ---------------------------------------------------------------------------
                 The Departments expect that the aliens most likely to be impacted
                by this rule's provisions are those who are already unlikely to receive
                a grant of asylum under existing law. Assuming DHS places those aliens
                into expedited removal proceedings, the Departments assess that it will
                be more likely that they would receive a more prompt adjudication of
                their claims for asylum or withholding of removal than they would under
                the existing regulations. Depending on the individual circumstances of
                each case, this rule would mean that such aliens would likely not
                remain in the United States--for years, potentially--pending resolution
                of their claims.
                 An alien who is ineligible for asylum may still be eligible to
                apply for the protection of withholding of removal
                [[Page 36290]]
                under section 241(b)(3) of the INA or withholding of removal under
                regulations issued pursuant to the legislation implementing U.S.
                obligations under Article 3 of 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). To the extent there are
                any direct impacts of this rule, they would almost exclusively fall on
                that population.\46\ Further, the full extent of the impacts on this
                population is unclear and would depend on the specific circumstances
                and personal characteristics of each alien, and neither DHS nor DOJ
                collects such data at such a level of granularity.
                ---------------------------------------------------------------------------
                 \46\ 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 factual bases relevant for
                application of the proposed changes are not tracked at a granular
                level, there is no precise data on how many otherwise grantable
                asylum applications may be denied under this rule and, thus, there
                is no way to calculate precisely how many aliens will nevertheless
                be granted withholding. Further, because the immigration judge would
                have to adjudicate the application in either case, there is no cost
                to DOJ.
                ---------------------------------------------------------------------------
                 Overall, the Departments assess that operational efficiencies will
                likely result from these proposed changes, which could, inter alia,
                reduce the number of meritless claims before the immigration courts,
                provide the Departments with the ability to more promptly grant relief
                or protection to qualifying aliens, and ensure that those who do not
                qualify for relief or protection are removed more efficiently than they
                are under current rules.
                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, it is determined that 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
                 DOJ and DHS invite comment on the impact to the proposed collection
                of information. In accordance with the Paperwork Reduction Act, the
                information collection notice is published in the Federal Register to
                obtain comments regarding the proposed edits to the information
                collection instrument.
                 Comments are encouraged and will be accepted until August 14, 2020.
                All submissions received must include the OMB Control Number 1615-0067
                in the body of the submission. Comments on this information collection
                should address one or more of the following four points:
                 (1) Evaluate whether the collection of information is necessary for
                the proper performance of the functions of the agency, including
                whether the information will have practical utility;
                 (2) Evaluate the accuracy of the agency's estimate of the burden of
                the collection of information, including the validity of the
                methodology and assumptions used;
                 (3) Enhance the quality, utility, and clarity of the information to
                be collected; and
                 (4) Minimize the burden of the collection of information on those
                who are to respond, including through the use of appropriate automated,
                electronic, mechanical, or other technological collection techniques or
                other forms of information technology, e.g., permitting electronic
                submission of responses.
                Overview of Information Collection
                 (1) Type of Information Collection: Revision of a Currently
                Approved Collection.
                 (2) Title of the Form/Collection: Application for Asylum and for
                Withholding of Removal.
                 (3) Agency form number, if any, and the applicable component of the
                DHS sponsoring the collection: I-589; USCIS.
                 (4) Affected public who will be asked or required to respond, as
                well as a brief abstract: Primary: Individuals or households. Form I-
                589 is necessary to determine whether an alien applying for asylum or
                withholding of removal in the United States is classified as refugee,
                and is eligible to remain in the United States.
                 (5) An estimate of the total number of respondents and the amount
                of time estimated for an average respondent to respond: The estimated
                total number of respondents for the information collection I-589 is
                approximately 114,000, and the estimated hour burden per response is 18
                hours per response. The estimated number of respondents providing
                biometrics is 110,000, and the estimated hour burden per response is
                1.17 hours.
                 (6) An estimate of the total public burden (in hours) associated
                with the collection: The total estimated annual hour burden associated
                with this collection of information in hours is 2,180,700.
                 (7) An estimate of the total public burden (in cost) associated
                with the collection: The estimated total annual cost burden associated
                with this collection of information is $46,968,000.
                H. Signature
                 The Acting Secretary of Homeland Security, Chad F. Wolf, having
                reviewed and approved this document, is delegating the authority to
                electronically sign this document to Chad R. Mizelle, who is the Senior
                Official Performing the Duties of the General Counsel for DHS, for
                purposes of publication in the Federal Register.
                List of Subjects
                8 CFR Part 103
                 Administrative practice and procedure, Authority delegations
                (Government agencies), Fees, Freedom of Information, Immigration,
                Privacy, Reporting and recordkeeping requirements, Surety bonds.
                8 CFR Part 208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 235
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 1003
                 Administrative practice and procedure, Aliens, Immigration, Legal
                services, Organization and functions (Government agencies).
                8 CFR Part 1208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 1235
                 Administrative practice and procedure, Aliens, Immigration,
                [[Page 36291]]
                Reporting and recordkeeping requirements.
                Department of Homeland Security
                 Accordingly, for the reasons set forth in the preamble, the
                Department of Homeland Security proposes to amend 8 CFR parts 103, 208,
                and 235 as follows:
                PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIRMENTS; AVAILABILITY
                OF RECORDS
                0
                1. The authority citation for part 103 continues to read as follows:
                 Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
                1356, 1356b, 1372; 31 U.S.C. 9701; Public Law 107-296, 116 Stat.
                2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR,
                1982 Comp., p. 166; 8 CFR part 2; Public Law 112-54, 125 Stat 550.
                0
                2. Amend Sec. 103.5 by
                0
                a. Revising paragraph (a) introductory text;
                0
                b. Revising the first full sentence of paragraph (a)(1)(i); and
                0
                c. Adding paragraph (d).
                 The revisions and addition read as follows:
                Sec. 103.5 Reopening or reconsideration.
                 (a) Motions to reopen or reconsider proceedings or decisions on
                benefit requests in other than special agricultural worker and
                legalization cases--
                 (1) * * *
                 (i) General. Except where the Board has jurisdiction and as
                otherwise provided in 8 CFR parts 3, 210, 242, and 245a, when the
                affected party files a motion, the official having jurisdiction may,
                for proper cause shown, reopen the proceeding or reconsider the prior
                decision regarding the benefit request. * * *
                * * * * *
                 (d) The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                * * * * *
                PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                3. 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
                4. Amend Sec. 208.1 by adding paragraphs (c), (d), (e), (f), and (g)
                to read as follows:
                Sec. 208.1 General.
                * * * * *
                 (c) Particular social group. For purposes of adjudicating an
                application for asylum under section 208 of the Act or an application
                for withholding of removal under section 241(b)(3) of the Act, a
                particular social group is one that is based on an immutable or
                fundamental characteristic, is defined with particularity, and is
                recognized as socially distinct in the society at question. Such a
                particular social group cannot be defined exclusively by the alleged
                persecutory acts or harms and must also have existed independently of
                the alleged persecutory acts or harms that form the basis of the claim.
                The Secretary, in general, will not favorably adjudicate claims of
                aliens who claim a fear of persecution on account of membership in a
                particular social group consisting of or defined by the following
                circumstances: Past or present criminal activity or association
                (including gang membership); presence in a country with generalized
                violence or a high crime rate; being the subject of a recruitment
                effort by criminal, terrorist, or persecutory groups; the targeting of
                the applicant for criminal activity for financial gain based on
                perceptions of wealth or affluence; interpersonal disputes of which
                governmental authorities were unaware or uninvolved; private criminal
                acts of which governmental authorities were unaware or uninvolved; past
                or present terrorist activity or association; past or present
                persecutory activity or association; or status as an alien returning
                from the United States. This list is nonexhaustive, and the substance
                of the alleged particular social group, rather than the precise form of
                its delineation, shall be considered in determining whether the group
                falls within one of the categories on the list. No alien shall be found
                to be a refugee or have it decided that the alien's life or freedom
                would be threatened based on membership in a particular social group in
                any case unless that person first articulates on the record, or
                provides a basis on the record for determining, the definition and
                boundaries of the alleged particular social group. A failure to define,
                or provide a basis for defining, a formulation of a particular social
                group before an immigration judge shall waive any such claim for all
                purposes under the Act, including on appeal, and any waived claim on
                this basis shall not serve as the basis for any motion to reopen or
                reconsider for any reason, including a claim of ineffective assistance
                of counsel.
                 (d) Political opinion. For purposes of adjudicating an application
                for asylum under section 208 of the Act or an application for
                withholding of removal under section 241(b)(3) of the Act, a political
                opinion is one expressed by or imputed to an applicant in which the
                applicant possesses an ideal or conviction in support of the
                furtherance of a discrete cause related to political control of a state
                or a unit thereof. The Secretary, in general, will not favorably
                adjudicate claims of aliens who claim a fear of persecution on account
                of a political opinion defined solely by generalized disapproval of,
                disagreement with, or opposition to criminal, terrorist, gang,
                guerilla, or other non-state organizations absent expressive behavior
                in furtherance of a cause against such organizations related to efforts
                by the state to control such organizations or behavior that is
                antithetical to or otherwise opposes the ruling legal entity of the
                state or a legal sub-unit of the state. A person who has been forced to
                abort a pregnancy or to undergo involuntary sterilization, or who has
                been persecuted for failure or refusal to undergo such a procedure or
                for other resistance to a coercive population control program, shall be
                deemed to have been persecuted on account of political opinion, and a
                person who has a well-founded fear that he or she will be forced to
                undergo such a procedure or subject to persecution for such failure,
                refusal, or resistance shall be deemed to have a well-founded fear of
                persecution on account of political opinion.
                 (e) Persecution. For purposes of screening or adjudicating an
                application for asylum under section 208 of the Act or an application
                for withholding of removal under section 241(b)(3) of the Act,
                persecution requires an intent to target a belief or characteristic, a
                severe level of harm, and the infliction of a severe level of harm by
                the government of a country or by persons or an organization that the
                government was unable or unwilling to control. For purposes of
                evaluating the severity of the level of harm, persecution is an extreme
                concept involving a severe level of harm that includes actions so
                severe that they constitute an exigent threat. Persecution does not
                encompass the generalized harm that arises out of civil, criminal, or
                military strife in a country, nor does it encompass all treatment that
                the United States regards as unfair, offensive, unjust, or even
                unlawful or unconstitutional. It does not include intermittent
                harassment, including brief detentions; threats with no actual effort
                to carry out the threats; or, non-severe
                [[Page 36292]]
                economic harm or property damage, though this list is nonexhaustive.
                The existence of laws or government policies that are unenforced or
                infrequently enforced do not, by themselves, constitute persecution,
                unless there is credible evidence that those laws or policies have been
                or would be applied to an applicant personally.
                 (f) Nexus--(1) General. For purposes of adjudicating an application
                for asylum under section 208 of the Act or an application or
                withholding of removal under section 241(b)(3) of the Act, the
                Secretary, in general, will not favorably adjudicate the claims of
                aliens who claim persecution based on the following list of
                nonexhaustive circumstances:
                 (i) Interpersonal animus or retribution;
                 (ii) Interpersonal animus in which the alleged persecutor has not
                targeted, or manifested an animus against, other members of an alleged
                particular social group in addition to the member who has raised the
                claim at issue;
                 (iii) Generalized disapproval of, disagreement with, or opposition
                to criminal, terrorist, gang, guerilla, or other non-state
                organizations absent expressive behavior in furtherance of a discrete
                cause against such organizations related to control of a state or
                expressive behavior that is antithetical to the state or a legal unit
                of the state;
                 (iv) Resistance to recruitment or coercion by guerilla, criminal,
                gang, terrorist or other non-state organizations;
                 (v) The targeting of the applicant for criminal activity for
                financial gain based on wealth or affluence or perceptions of wealth or
                affluence;
                 (vi) Criminal activity;
                 (vii) Perceived, past or present, gang affiliation; or,
                 (viii) Gender.
                 (2) [Reserved]
                 (g) Evidence based on stereotypes. For purposes of adjudicating an
                application for asylum under section 208 of the Act or an application
                for withholding of removal under section 241(b)(3) of the Act, evidence
                promoting cultural stereotypes about an individual or a country,
                including stereotypes based on race, religion, nationality, or gender,
                and offered to support the basis of an alleged fear of harm from the
                individual or country shall not be admissible in adjudicating that
                application.
                0
                5. Amend Sec. 208.2 by adding paragraph (c)(1)(ix) to read as follows:
                Sec. 208.2 Jurisdiction.
                * * * * *
                 (c) * * *
                 (1) * * *
                 (ix) An alien found to have a credible fear of persecution,
                reasonable possibility of persecution, or reasonable possibility of
                torture in accordance with Sec. 208.30, and Sec. Sec. 1003.42 or
                1208.30 of this title.
                * * * * *
                0
                6. Amend Sec. 208.5 by revising the first sentence of paragraph (a) to
                read as follows:
                Sec. 208.5 Special duties toward aliens in custody of DHS.
                 (a) General. When an alien in the custody of DHS requests asylum or
                withholding of removal, or expresses a fear of persecution or harm upon
                return to his or her country of origin or to agents thereof, DHS shall
                make available the appropriate application forms and shall provide the
                applicant with the information required by section 208(d)(4) of the
                Act, including in the case of an alien who is in custody with a
                positive credible fear or reasonable fear determination under
                Sec. Sec. 208.30 or 208.31, and except in the case of an alien who is
                in custody pending a credible fear determination under Sec. 208.30 or
                a reasonable fear determination pursuant to Sec. 208.31. * * *
                * * * * *
                0
                7. Amend Sec. 208.6 by--
                0
                a. Revising paragraphs (a) and (b); and
                0
                b. Adding paragraphs (d), (e), and (f).
                 The revisions and additions read as follows:
                Sec. 208.6 Disclosure to third parties.
                 (a) Information contained in or pertaining to any asylum
                application, records pertaining to any credible fear determination
                conducted pursuant to Sec. 208.30, and records pertaining to any
                reasonable fear determination conducted pursuant to Sec. 208.31, shall
                not be disclosed without the written consent of the applicant, except
                as permitted by this section or at the discretion of the Secretary.
                 (b) The confidentiality of other records kept by DHS and the
                Executive Office for Immigration Review that indicate that a specific
                alien has applied for asylum, received a credible fear or reasonable
                fear interview, or received a credible fear or reasonable fear review
                shall also be protected from disclosure, except as permitted in this
                section. DHS will coordinate with the Department of State to ensure
                that the confidentiality of those records is maintained if they are
                transmitted to Department of State offices in other countries.
                * * * * *
                 (d)(1) Any information contained in an application for asylum,
                withholding of removal under section 241(b)(3) of the Act, or
                protection under regulations issued pursuant to the Convention Against
                Torture's implementing legislation, any relevant and applicable
                information supporting that application, any information regarding an
                alien who has filed such an application, and any relevant and
                applicable information regarding an alien who has been the subject of a
                reasonable fear or credible fear determination may be disclosed:
                 (i) As part of an investigation or adjudication of the merits of
                that application or of any other application under the immigration
                laws,
                 (ii) As part of any state or federal criminal investigation,
                proceeding, or prosecution;
                 (iii) Pursuant to any state or federal mandatory reporting
                requirement;
                 (iv) To deter, prevent, or ameliorate the effects of child abuse;
                 (v) As part of any proceeding arising under the immigration laws,
                including proceedings arising under the Act; and
                 (vi) As part of the Government's defense of any legal action
                relating to the alien's immigration or custody status including
                petitions for review filed in accordance with 8 U.S.C. 1252.
                 (2) If information may be disclosed under paragraph (d)(1) of this
                section, the disclosure provisions in paragraphs (a), (b), and (c) of
                this section shall not apply.
                 (e) Nothing in this section shall be construed as prohibiting the
                disclosure of information contained in an application for asylum,
                withholding of removal under section 241(b)(3)(B) of the Act, or
                protection under regulations issued pursuant to the Convention Against
                Torture's implementing legislation, information supporting that
                application, information regarding an alien who has filed such an
                application, or information regarding an alien who has been the subject
                of a reasonable fear or credible fear determination:
                 (1) Among employees and officers of the Department of Justice, the
                Department of Homeland Security, the Department of State, the
                Department of Health and Human Services, the Department of Labor, or a
                U.S. national security agency having a need to examine the information
                for an official purpose; or
                 (2) Where a United States Government employee or contractor has a
                good faith and reasonable belief that disclosure is necessary to
                prevent the commission of a crime, the furtherance of an ongoing crime,
                or to ameliorate the effects of a crime.
                0
                8. Amend Sec. 208.13 by:
                0
                a. Revising paragraph (b)(3) introductory text;
                [[Page 36293]]
                0
                b. Revising paragraph (b)(3)(ii);
                0
                c. Adding paragraphs (b)(3)(iii) and (iv), and (d).
                 The revisions and additions read as follows:
                Sec. 208.13 Establishing asylum eligibility.
                * * * * *
                 (b) * * *
                 (3) Reasonableness of internal relocation. For purposes of
                determinations under paragraphs (b)(1)(i), (ii), and (2) of this
                section, adjudicators should consider the totality of the relevant
                circumstances regarding an applicant's prospects for relocation,
                including the size of the country of nationality or last habitual
                residence, the geographic locus of the alleged persecution, the size,
                reach, or numerosity of the alleged persecutor, and the applicant's
                demonstrated ability to relocate to the United States in order to apply
                for asylum.
                * * * * *
                 (ii) In cases in which the persecutor is a government or is
                government-sponsored, it shall be presumed that internal relocation
                would not be reasonable, unless DHS establishes by a preponderance of
                the evidence that, under all the circumstances, it would be reasonable
                for the applicant to relocate.
                 (iii) Regardless of whether an applicant has established
                persecution in the past, in cases in which the persecutor is not the
                government or a government-sponsored actor, or otherwise is a private
                actor, there shall be a presumption that internal relocation would be
                reasonable unless the applicant establishes, by a preponderance of the
                evidence, that it would be unreasonable to relocate.
                 (iv) For purposes of determinations under paragraphs (b)(3)(ii) and
                (b)(3)(iii) of this section, persecutors who are private actors--
                including persecutors who are gang members, rogue officials, family
                members who are not themselves government officials, or neighbors who
                are not themselves government officials--shall not be considered to be
                persecutors who are the government or government-sponsored absent
                evidence that the government sponsored the persecution.
                * * * * *
                 (d) Discretion. Factors that fall short of grounds of mandatory
                denial of an asylum application may constitute discretionary
                considerations.
                 (1) Significant adverse discretionary factors. The following are
                significant adverse discretionary factors that a decision-maker shall
                consider, if applicable, in determining whether an alien merits a grant
                of asylum in the exercise of discretion:
                 (i) An alien's unlawful entry or unlawful attempted entry into the
                United States unless such entry or attempted entry was made in
                immediate flight from persecution in a contiguous country;
                 (ii) The failure of an alien to apply for protection from
                persecution or torture in at least one country outside the alien's
                country of citizenship, nationality, or last lawful habitual residence
                through which the alien transited before entering the United States
                unless:
                 (A) The alien received a final judgment denying the alien
                protection in such country;
                 (B) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (C) Such country or all such countries were, at the time of the
                transit, not parties to the 1951 United Nations Convention relating to
                the Status of Refugees, the 1967 Protocol, or the United Nations
                Convention Against Torture and Other Cruel, Inhuman or Degrading
                Treatment or Punishment; and
                 (iii) An alien's use of fraudulent documents to enter the United
                States, unless the alien arrived in the United States by air, sea, or
                land directly from the applicant's home country without transiting
                through any other country.
                 (2)(i) The Secretary, except as provided in paragraph (d)(2)(ii) of
                this section, will not favorably exercise discretion under section 208
                of the Act for an alien who:
                 (A) Immediately prior to his arrival in the United States or en
                route to the United States from the alien's country of citizenship,
                nationality, or last lawful habitual residence, spent more than 14 days
                in any one country unless:
                 (1) The alien demonstrates that he or she applied for protection
                from persecution or torture in such country and the alien received a
                final judgment denying the alien protection in such country;
                 (2) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (3) Such country was, at the time of the transit, not a party to
                the 1951 United Nations Convention relating to the Status of Refugees,
                the 1967 Protocol, or the United Nations Convention against Torture and
                Other Cruel, Inhuman or Degrading Treatment or Punishment;
                 (B) Transits through more than one country between his country of
                citizenship, nationality, or last habitual residence and the United
                States unless:
                 (1) The alien demonstrates that he or she applied for protection
                from persecution or torture in at least one such country and received a
                final judgment denying the alien protection in that country;
                 (2) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (3) All such countries were, at the time of the transit, not
                parties to the 1951 United Nations Convention relating to the Status of
                Refugees, the 1967 Protocol, or the United Nations Convention against
                Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ;
                 (C) Would otherwise be subject to Sec. 208.13(c) but for the
                reversal, vacatur, expungement, or modification of a conviction or
                sentence unless the alien was found not guilty;
                 (D) Accrued more than one year of unlawful presence in the United
                States prior to filing an application for asylum;
                 (E) At the time the asylum application is filed with DHS has:
                 (1) Failed to timely file (or timely file a request for an
                extension of time to file) any required federal, state, or local income
                tax returns;
                 (2) Failed to satisfy any outstanding federal, state, or local tax
                obligations; or
                 (3) Has income that would result in tax liability under section 1
                of the Internal Revenue Code of 1986 and that was not reported to the
                Internal Revenue Service;
                 (F) Has had two or more prior asylum applications denied for any
                reason;
                 (G) Has withdrawn a prior asylum application with prejudice or been
                found to have abandoned a prior asylum application;
                 (H) Failed to attend an interview regarding his asylum application
                with DHS, unless the alien shows by a preponderance of the evidence
                that:
                 (1) Exceptional circumstances prevented the alien from attending
                the interview; or
                 (2) The interview notice was not mailed to the last address
                provided by the alien or his or her representative and neither the
                alien nor the alien's representative received notice of the interview;
                or
                 (I) Was subject to a final order of removal, deportation, or
                exclusion and did not file a motion to reopen to seek asylum based on
                changed country conditions within one year of those changes in country
                conditions.
                 (ii) Where one or more of the adverse discretionary factors set
                forth in paragraph (d)(2)(i) of this section are present, the
                Secretary, in extraordinary circumstances, such as those involving
                [[Page 36294]]
                national security or foreign policy considerations, or cases in which
                an alien, by clear and convincing evidence, demonstrates that the
                denial of the application for asylum would result in exceptional and
                extremely unusual hardship to the alien, may favorably exercise
                discretion under section 208 of the Act, notwithstanding the
                applicability of paragraph (d)(2)(i) of this section. Depending on the
                gravity of the circumstances underlying the application of paragraph
                (d)(2)(i) of this section, a showing of extraordinary circumstances
                might still be insufficient to warrant a favorable exercise of
                discretion under section 208 of the Act.
                0
                9. Revise Sec. 208.15 to read as follows:
                Sec. 208.15 Definition of ``firm resettlement.''
                 (a) An alien is considered to be firmly resettled if:
                 (1) The alien either resided or could have resided in any permanent
                legal immigration status or any non-permanent, potentially indefinitely
                renewable legal immigration status (including asylee, refugee, or
                similar status but excluding status such as of a tourist) in a country
                through which the alien transited prior to arriving in or entering the
                United States, regardless of whether the alien applied for or was
                offered such status;
                 (2) The alien physically resided voluntarily, and without
                continuing to suffer persecution or torture, in any one country for one
                year or more after departing his country of nationality or last
                habitual residence and prior to arrival in or entry into the United
                States; or
                 (3)(i) The alien is a citizen of a country other than the one where
                the alien alleges a fear of persecution and the alien was present in
                that country prior to arriving in the United States, or
                 (ii) The alien was a citizen of a country other than the one where
                the alien alleges a fear of persecution, the alien was present in that
                country prior to arriving in the United States, and the alien renounced
                that citizenship after arriving in the United States.
                 (b) The provisions of 8 CFR 1240.8(d) shall apply when the evidence
                of record indicates that the firm resettlement bar may apply. In such
                cases, the alien shall bear the burden of proving the bar does not
                apply. Either DHS or the immigration judge may raise the issue of the
                application of the firm resettlement bar based on the evidence of
                record. The firm resettlement of an alien's parent(s) shall be imputed
                to the alien if the resettlement occurred before the alien turned 18
                and the alien resided with the alien's parents at the time of the firm
                resettlement unless the alien establishes that he or she could not have
                derived any permanent legal immigration status or any potentially
                indefinitely renewable temporary legal immigration status (including
                asylee, refugee, or similar status but excluding status such as of a
                tourist) from the alien's parent.
                0
                10. Amend Sec. 208.16 by:
                0
                a. Revising paragraph (b)(3) introductory text;
                0
                b. Revising paragraph (b)(3)(ii);
                0
                c. Adding paragraphs (b)(3)(iii) and (iv).
                 The revisions and additions read as follows:
                Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the
                Act and withholding of removal under the Convention Against Torture.
                * * * * *
                 (b)(3) Reasonableness of internal relocation. For purposes of
                determinations under paragraphs (b)(1) and (2) of this section,
                adjudicators should consider the totality of the relevant circumstances
                regarding an applicant's prospects for relocation, including the size
                of the country of nationality or last habitual residence, the
                geographic locus of the alleged persecution, the size, reach, or
                numerosity of the alleged persecutor, and the applicant's demonstrated
                ability to relocate to the United States in order to apply for
                withholding of removal.
                * * * * *
                 (ii) In cases in which the persecutor is a government or is
                government-sponsored, it shall be presumed that internal relocation
                would not be reasonable, unless DHS establishes by a preponderance of
                the evidence that, under the totality of the circumstances, it would be
                reasonable for the applicant to relocate.
                 (iii) Regardless of whether an applicant has established
                persecution in the past, in cases in which the persecutor is not the
                government or a government-sponsored actor, or otherwise is a private
                actor, there shall be a presumption that internal relocation would be
                reasonable unless the applicant establishes, by a preponderance of the
                evidence, that it would be unreasonable to relocate.
                 (iv) For purposes of determinations under paragraphs (b)(3)(ii) and
                (iii) of this section, persecutors who are private actors, including
                but not limited to persecutors who are gang members, rogue officials,
                or family members who are not themselves government officials or
                neighbors who are not themselves government officials, shall not be
                considered to be persecutors who are the government or government-
                sponsored absent evidence that the government sponsored the
                persecution.
                * * * * *
                0
                11. Amend Sec. 208.18 by revising paragraphs (a)(1) and (7) to read as
                follows:
                Sec. 208.18 Implementation of the Convention Against Torture.
                 (a) * * *
                 (1) Torture is defined as any act by which severe pain or
                suffering, whether physical or mental, is intentionally inflicted on a
                person for such purposes as obtaining from him or her or a third person
                information or a confession, punishing him or her for an act he or she
                or a third person has committed or is suspected of having committed, or
                intimidating or coercing him or her or a third person, or for any
                reason based on discrimination of any kind, when such pain or suffering
                is inflicted by or at the instigation of or with the consent or
                acquiescence of a public official acting in an official capacity or
                other person acting in an official capacity. Pain or suffering
                inflicted by a public official who is not acting under color of law
                (``rogue official'') shall not constitute pain or suffering inflicted
                by or at the instigation of or with the consent or acquiescence of a
                public official acting in an official capacity or other person acting
                in an official capacity, although a different public official acting in
                an official capacity or other person acting in an official capacity
                could instigate, consent to, or acquiesce in the pain or suffering
                inflicted by the rogue official.
                * * * * *
                 (7) Acquiescence of a public official requires that the public
                official, prior to the activity constituting torture, have awareness of
                such activity and thereafter breach his or her legal responsibility to
                intervene to prevent such activity. Such awareness requires a finding
                of either actual knowledge or willful blindness. Willful blindness
                means that the public official acting in an official capacity or other
                person acting in an official capacity was aware of a high probability
                of activity constituting torture and deliberately avoided learning the
                truth; it is not enough that such public official acting in an official
                capacity or other person acting in an official capacity was mistaken,
                recklessly disregarded the truth, or negligently failed to inquire. In
                order for a public official to breach his or her legal responsibility
                to intervene to prevent activity constituting torture, the official
                must have been charged with preventing the activity as part of his or
                her duties and have failed to intervene. No person will be deemed to
                have
                [[Page 36295]]
                breached a legal responsibility to intervene if such person is unable
                to intervene, or if the person intervenes but is unable to prevent the
                activity that constitutes torture.
                * * * * *
                0
                12. Revise Sec. 208.20 to read as follows:
                Sec. 208.20 Determining if an asylum application is frivolous.
                 (a) For applications filed on or after April 1, 1997, an applicant
                is subject to the provisions of section 208(d)(6) of the Act only if
                the alien received the notice required by section 208(d)(4)(A) of the
                Act and a final order by an immigration judge or the Board of
                Immigration Appeals specifically finds that the alien knowingly filed a
                frivolous asylum application. An alien knowingly files a frivolous
                asylum application if:
                 (1) The application is described in paragraph (c) of this section;
                and
                 (2) The alien filed the application with either actual knowledge,
                or willful blindness, of the fact that the application was described in
                paragraph (c) in this section.
                 (b) For applications filed on or after [EFFECTIVE DATE OF FINAL
                RULE], an asylum officer may determine that the applicant knowingly
                filed a frivolous asylum application and may refer the applicant to an
                immigration judge on that basis, so long as the applicant has received
                the notice required by section 208(d)(4)(A) of the Act. Such finding
                will be made only if the asylum officer is satisfied that the applicant
                has had sufficient opportunity to account for any discrepancies or
                implausible aspects of the claim. For any application referred to an
                immigration judge, an asylum officer's determination that an
                application is frivolous will not render an applicant permanently
                ineligible for immigration benefits unless an immigration judge or the
                Board makes a finding of frivolousness as described in paragraph
                1208.20(c).
                 (c) For purposes of this section, beginning on [effective date of
                final rule], an asylum application is frivolous if it:
                 (1) Contains a fabricated essential element;
                 (2) Is premised upon false or fabricated evidence unless the
                application would have been granted without the false or fabricated
                evidence;
                 (3) Is filed without regard to the merits of the claim; or
                 (4) Is clearly foreclosed by applicable law.
                 (d) If the alien has been provided the warning required by section
                208(d)(4)(A) of the Act, he or she need not be given any additional or
                further opportunity to account for any issues with his or her claim
                prior to the entry of a frivolousness finding.
                 (e) An asylum application may be found frivolous even if it was
                untimely filed.
                 (f) A withdrawn asylum application may also be found frivolous
                unless:
                 (1) The alien wholly disclaims the application and withdraws it
                with prejudice;
                 (2) The alien is eligible for and agrees to accept voluntary
                departure for a period of no more than 30 days pursuant to section
                240B(a) of the Act;
                 (3) The alien withdraws any and all other applications for relief
                or protection with prejudice; and
                 (4) The alien waives his right to appeal and any rights to file,
                for any reason, a motion to reopen or reconsider.
                 (g) For purposes of this section, a finding that an alien knowingly
                filed a frivolous asylum application shall not preclude the alien from
                seeking withholding of removal under section 241(b)(3) of the Act or
                protection under the regulations issued pursuant to the Convention
                Against Torture's implementing legislation.
                0
                13. Add Sec. 208.25 to read as follows:
                Sec. 208.25 Severability.
                 The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                0
                14. Amend Sec. 208.30 by:
                0
                a. Revising the section heading;
                0
                b. Revising paragraphs (a), (b), (c), and (d);
                0
                c. Revising (e) introductory text, (e)(1) through (5), (e)(6)
                introductory text, (e)(6)(ii), (e)(6)(iii) introductory text,
                (e)(6)(iv), the first sentence of the introductory text of paragraph
                (e)(7), (e)(7)(ii); and
                0
                d. Revising paragraphs (f) and (g).
                 The revisions read as follows:
                Sec. 208.30 Credible fear of persecution, reasonable possibility of
                persecution, and reasonable possibility of torture determinations
                involving stowaways and applicants for admission who are found
                inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act,
                whose entry is limited or suspended under section 212(f) or 215(a)(1)
                of the Act, or who failed to apply for protection from persecution in a
                third country where potential relief is available while en route to the
                United States.
                 (a) Jurisdiction. The provisions of this subpart B apply to aliens
                subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
                section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make
                the determinations described in this subpart B. Except as otherwise
                provided in this subpart B, paragraphs (b) through (g) of this section
                are the exclusive procedures applicable to stowaways and applicants for
                admission who are found inadmissible pursuant to section 212(a)(6)(C)
                or 212(a)(7) of the Act and who receive fear interviews,
                determinations, and reviews under section 235(b)(1)(B) of the Act.
                Prior to January 1, 2030, an alien physically present in or arriving in
                the Commonwealth of the Northern Mariana Islands is ineligible to apply
                for asylum and may only establish eligibility for withholding of
                removal pursuant to section 241(b)(3) of the Act or withholding or
                deferral of removal under the regulations issued pursuant to the
                Convention Against Torture's implementing legislation.
                 (b) Process and authority. If an alien subject to section 235(a)(2)
                or 235(b)(1) of the Act indicates an intention to apply for asylum, or
                expresses a fear of persecution or torture, or a fear of return to his
                or her country, the inspecting officer shall not proceed further with
                removal of the alien until the alien has been referred for an interview
                by an asylum officer in accordance with this section. An asylum officer
                shall then screen the alien for a credible fear of persecution, and as
                necessary, a reasonable possibility of persecution and reasonable
                possibility of torture. An asylum officer, as defined in section
                235(b)(1)(E) of the Act, has the authorities described in Sec.
                208.9(c) and must conduct an evaluation and make a determination
                consistent with this section.
                 (c) Treatment of dependents. A spouse or child of an alien may be
                included in that alien's fear evaluation and determination, if such
                spouse or child:
                 (1) Arrived in the United States concurrently with the principal
                alien; and
                 (2) Desires to be included in the principal alien's determination.
                However, any alien may have his or her evaluation and determination
                made separately, if he or she expresses such a desire.
                 (d) Interview. The asylum officer will conduct the interview in a
                nonadversarial manner, separate and apart from the general public. The
                purpose of the interview shall be to elicit all relevant and useful
                information bearing on whether the alien can establish a credible fear
                of persecution, reasonable possibility of persecution, or
                [[Page 36296]]
                reasonable possibility of torture. The asylum officer shall conduct the
                interview as follows:
                 (1) If the officer conducting the interview determines that the
                alien is unable to participate effectively in the interview because of
                illness, fatigue, or other impediments, the officer may reschedule the
                interview.
                 (2) At the time of the interview, the asylum officer shall verify
                that the alien has received in writing the relevant information
                regarding the fear determination process. The officer shall also
                determine that the alien has an understanding of the fear determination
                process.
                 (3) The alien may be required to register his or her identity.
                 (4) The alien may consult with a person or persons of the alien's
                choosing prior to the interview or any review thereof, and may present
                other evidence, if available. Such consultation shall be at no expense
                to the Government and shall not unreasonably delay the process. Any
                person or persons with whom the alien chooses to consult may be present
                at the interview and may be permitted, in the discretion of the asylum
                officer, to present a statement at the end of the interview. The asylum
                officer, in his or her discretion, may place reasonable limits on the
                number of persons who may be present at the interview and on the length
                of the statement.
                 (5) If the alien is unable to proceed effectively in English, and
                if the asylum officer is unable to proceed competently in a language
                the alien speaks and understands, the asylum officer shall arrange for
                the assistance of an interpreter in conducting the interview. The
                interpreter must be at least 18 years of age and may not be the alien's
                attorney or representative of record, a witness testifying on the
                alien's behalf, a representative or employee of the alien's country of
                nationality, or, if the alien is stateless, the alien's country of last
                habitual residence.
                 (6) The asylum officer shall create a summary of the material facts
                as stated by the alien. At the conclusion of the interview, the officer
                shall review the summary with the alien and provide the alien with an
                opportunity to correct any errors therein.
                 (e) Procedures for determining credible fear of persecution,
                reasonable possibility of persecution, and reasonable possibility of
                torture.
                 (1) An alien establishes a credible fear of persecution if there is
                a significant possibility the alien can establish eligibility for
                asylum under section 208 of the Act. ``Significant possibility'' means
                a substantial and realistic possibility of succeeding. When making such
                a determination, the asylum officer shall take into account:
                 (i) The credibility of the statements made by the alien in support
                of the alien's claim;
                 (ii) Such other facts as are known to the officer, including
                whether the alien could avoid any future harm by relocating to another
                part of his or her country, if under all the circumstances it would be
                reasonable to expect the alien to do so; and
                 (iii) The applicability of any bars to being able to apply for
                asylum or to eligibility for asylum set forth at section 208(a)(2)(B)-
                (C) and (b)(2) of the Act, including any bars established by regulation
                under section 208(b)(2)(C) of the Act.
                 (2) An alien establishes a reasonable possibility of persecution if
                there is a reasonable possibility that the alien would be persecuted on
                account of his or her race, religion, nationality, membership in a
                particular social group, or political opinion in the country of
                removal. When making such determination, the officer will take into
                account:
                 (i) The credibility of the statements made by the alien in support
                of the alien's claim;
                 (ii) Such other facts as are known to the officer, including
                whether the alien could avoid a future threat to his or her life or
                freedom by relocating to another party of the proposed country of
                removal and, under all circumstances, it would be reasonable to expect
                the applicant to do so; and
                 (iii) The applicability of any bars at section 241(b)(3)(B) of the
                Act.
                 (3) An alien establishes a reasonable possibility of torture if
                there is a reasonable possibility that the alien would be tortured in
                the country of removal, consistent with the criteria in Sec. Sec.
                208.16(c), 208.17, and 208.18. The alien must demonstrate a reasonable
                possibility that he or she will suffer severe pain or suffering in the
                country of removal, and that the feared harm would comport with the
                other requirements of Sec. 208.18(a)(1) through (8). When making such
                a determination, the asylum officer shall take into account:
                 (i) The credibility of the statements made by alien in support of
                the alien's claim, and
                 (ii) Such other facts as are known to the officer, including
                whether the alien could relocate to a part of the country of removal
                where he or she is not likely to be tortured.
                 (4) In all cases, the asylum officer will create a written record
                of his or her determination, including a summary of the material facts
                as stated by the alien, any additional facts relied on by the officer,
                and the officer's determination of whether, in light of such facts, the
                alien has established a credible fear of persecution, reasonable
                possibility of persecution, or reasonable possibility of torture. An
                asylum officer's determination will not become final until reviewed by
                a supervisory asylum officer.
                 (5)(i)(A) Except as provided in paragraphs (e)(5)(ii) through(iii),
                (e)(6), or (e)(7) of this section, if an alien would be able to
                establish a credible fear of persecution but for the fact that the
                alien is subject to one or more of the mandatory bars to applying for
                asylum or being eligible for asylum contained in section 208(a)(2)(B)-
                (D) and (b)(2) of the Act, including any bars established by regulation
                under section 208(b)(2)(C) of the Act, then the asylum officer will
                enter a negative credible fear of persecution determination with
                respect to the alien's eligibility for asylum.
                 (B) If an alien described in paragraph (e)(5)(i)(A) of this section
                is able to establish either a reasonable possibility of persecution
                (including by establishing that he or she is not subject to one or more
                of the mandatory bars to eligibility for withholding of removal
                contained in section 241(b)(3)(B) of the Act) or a reasonable
                possibility of torture, then the asylum officer will enter a positive
                reasonable possibility of persecution or torture determination, as
                applicable. The Department of Homeland Security shall place the alien
                in asylum-and-withholding-only proceedings under Sec. 208.2(c)(1) for
                full consideration of the alien's claim for withholding of removal
                under section 241(b)(3) of the Act or withholding or deferral of
                removal under the regulations issued pursuant to the implementing
                legislation for the Convention Against Torture.
                 (C) If an alien described in paragraph (e)(5)(i)(A) of this section
                fails to establish either a reasonable possibility of persecution
                (including by failing to establish that he or she is not subject to one
                or more of the mandatory bars to eligibility for withholding of removal
                contained in section 241(b)(3)(B) of the Act) or a reasonable
                possibility of torture, the asylum officer will provide the alien with
                a written notice of decision, which will be subject to immigration
                judge review consistent with paragraph (g) of this section, except that
                the immigration judge will review the fear findings under the
                reasonable possibility standard instead of the credible fear of
                persecution standard described in paragraph (g) of this section and in
                8 CFR 1208.30(g).
                [[Page 36297]]
                 (ii) If the alien is found to be an alien described in 8 CFR
                208.13(c)(3), then the asylum officer shall enter a negative credible
                fear determination with respect to the alien's application for asylum.
                The Department shall nonetheless place the alien in asylum-and-
                withholding-only proceedings under Sec. 208.2(c)(1) for full
                consideration of the alien's claim for withholding of removal under
                section 241(b)(3) of the Act, or for withholding or deferral of removal
                under the regulations issued pursuant to the implementing legislation
                for the Convention Against Torture, if the alien establishes,
                respectively, a reasonable possibility of persecution or torture.
                However, if an alien fails to establish, during the interview with the
                asylum officer, a reasonable possibility of either persecution or
                torture, the asylum officer will provide the alien with a written
                notice of decision, which will be subject to immigration judge review
                consistent with paragraph (g) of this section, except that the
                immigration judge will review the fear of persecution findings under
                the reasonable possibility standard instead of the credible fear
                standard described in paragraph (g) and in 8 CFR 1208.30(g).
                 (iii) If the alien is found to be an alien described in Sec.
                208.13(c)(4), then the asylum officer shall enter a negative credible
                fear determination with respect to the alien's application for asylum.
                The Department shall nonetheless place the alien in asylum-and-
                withholding-only proceedings under Sec. 208.2(c)(1) for full
                consideration of the alien's claim for withholding of removal under
                section 241(b)(3) of the Act or withholding of deferral of removal
                under the regulations issued pursuant to the implementing legislation
                for the Convention Against Torture if the alien establishes,
                respectively, a reasonable possibility of persecution or torture.
                However, if an alien fails to establish, during the interview with the
                asylum officer, a reasonable possibility of either persecution or
                torture, the asylum officer will provide the alien with a written
                notice of decision, which will be subject to immigration judge review
                consistent with paragraph (g) of this section, except that the
                immigration judge will review the fear of persecution findings under
                the reasonable possibility standard instead of the credible fear
                standard described in paragraph (g) and in 8 CFR 1208.30(g).
                 (6) Prior to any determination concerning whether an alien arriving
                in the United States at a U.S.-Canada land border port-of-entry or in
                transit through the U.S. during removal by Canada has a credible fear
                of persecution, reasonable possibility of persecution, or reasonable
                possibility of torture, the asylum officer shall conduct a threshold
                screening interview to determine whether such an alien is ineligible to
                apply for asylum pursuant to section 208(a)(2)(A) of the Act and
                subject to removal to Canada by operation of the Agreement Between the
                Government of the United States and the Government of Canada For
                Cooperation in the Examination of Refugee Status Claims from Nationals
                of Third Countries (``Agreement''). In conducting this threshold
                screening interview, the asylum officer shall apply all relevant
                interview procedures outlined in paragraph (d) of this section,
                provided, however, that paragraph (d)(2) of this section shall not
                apply to aliens described in this paragraph (e)(6). The asylum officer
                shall advise the alien of the Agreement's exceptions and question the
                alien as to applicability of any of these exceptions to the alien's
                case.
                * * * * *
                 (ii) If the alien establishes by a preponderance of the evidence
                that he or she qualifies for an exception under the terms of the
                Agreement, the asylum officer shall make a written notation of the
                basis of the exception, and then proceed immediately to a determination
                concerning whether the alien has a credible fear of persecution,
                reasonable possibility of persecution, or reasonable possibility of
                torture under paragraph (d) of this section.
                 (iii) An alien qualifies for an exception to the Agreement if the
                alien is not being removed from Canada in transit through the United
                States and:
                * * * * *
                 (iv) As used in paragraphs (e)(6)(iii)(B), (C) and (D) of this
                section only, ``legal guardian'' means a person currently vested with
                legal custody of such an alien or vested with legal authority to act on
                the alien's behalf, provided that such an alien is both unmarried and
                less than 18 years of age, and provided further that any dispute with
                respect to whether an individual is a legal guardian will be resolved
                on the basis of U.S. law.
                 (7) When an immigration officer has made an initial determination
                that an alien, other than an alien described in paragraph (e)(6) of
                this section and regardless of whether the alien is arriving at a port
                of entry, appears to be subject to the terms of an agreement authorized
                by section 208(a)(2)(A) of the Act, and seeks the alien's removal
                consistent with that provision, prior to any determination concerning
                whether the alien has a credible fear of persecution, reasonable
                possibility of persecution, or a reasonable possibility of torture, the
                asylum officer shall conduct a threshold screening interview to
                determine whether the alien is ineligible to apply for asylum in the
                United States and is subject to removal to a country (``receiving
                country'') that is a signatory to the applicable agreement authorized
                by section 208(a)(2)(A) of the Act, other than the U.S.-Canada
                Agreement effectuated in 2004. * * *
                * * * * *
                 (ii) If the alien establishes by a preponderance of the evidence
                that he or she qualifies for an exception under the terms of the
                applicable agreement, or would more likely than not be persecuted on
                account of his or her race, religion, nationality, membership in a
                particular social group, or tortured, in the receiving country, the
                asylum officer shall make a written notation to that effect, and may
                then proceed to determine whether any other agreement is applicable to
                the alien under the procedures set forth in this paragraph (e)(7). If
                the alien establishes by a preponderance of the evidence that he or she
                qualifies for an exception under the terms of each of the applicable
                agreements, or would more likely than not be persecuted on account of
                his or her race, religion, nationality, membership in a particular
                social group, or tortured, in each of the prospective receiving
                countries, the asylum officer shall make a written notation to that
                effect, and then proceed immediately to a determination concerning
                whether the alien has a credible fear of persecution, reasonable
                possibility of persecution, or a reasonable possibility of torture,
                under paragraph (d) of this section.
                * * * * *
                 (f) Procedures for a positive fear determination. If, pursuant to
                paragraph (e) of this section, an alien stowaway or an alien subject to
                expedited removal establishes either a credible fear of persecution,
                reasonable possibility of persecution, or a reasonable possibility of
                torture:
                 (1) DHS shall issue a Notice of Referral to Immigration Judge for
                asylum-and-withholding-only proceedings under Sec. 208.2(c)(1).
                 (2) Parole of the alien may be considered only in accordance with
                section 212(d)(5) of the Act and 8 CFR 212.5 of this chapter.
                 (g) Procedures for a negative fear determination. (1) If, pursuant
                to paragraphs (e) and (f) of this section, an alien stowaway or an
                alien subject to expedited removal does not establish a credible fear
                of persecution, reasonable possibility of persecution, or reasonable
                [[Page 36298]]
                possibility of torture, DHS shall provide the alien with a written
                notice of decision and inquire whether the alien wishes to have an
                immigration judge review the negative determination, in accordance with
                section 235(b)(1)(B)(iii)(III) of the Act and this Sec. 208.30. The
                alien must indicate whether he or she desires such review on a Record
                of Negative Fear Finding and Request for Review by Immigration Judge.
                If the alien refuses to make an indication, DHS shall consider such a
                response as a decision to decline review.
                 (i) If the alien requests such review, DHS shall arrange for
                detention of the alien and serve him or her with a Notice of Referral
                to Immigration Judge, for review of the negative fear determination in
                accordance with paragraph (g)(2) of this section.
                 (ii) If the alien is not a stowaway and does not request a review
                by an immigration judge, DHS shall order the alien removed with a
                Notice and Order of Expedited Removal, after review by a supervisory
                officer.
                 (iii) If the alien is a stowaway and the alien does not request a
                review by an immigration judge, DHS shall complete removal proceedings
                in accordance with section 235(a)(2) of the Act.
                 (2) Review by immigration judge of a negative fear determination.
                 (i) Immigration judges shall review negative fear determinations as
                provided in 8 CFR 1208.30(g).
                 (ii) DHS shall provide the record of any negative fear
                determinations being reviewed, including copies of the Notice of
                Referral to Immigration Judge, the asylum officer's notes, the summary
                of the material facts, and other materials upon which the determination
                was based, to the immigration judge with the negative fear
                determination.
                0
                15. Amend Sec. 208.31 by revising paragraph (f), the introductory text
                of paragraph (g), and paragraphs (g)(1) and (2) to read as follows:
                Sec. 208.31 Reasonable fear of persecution or torture determinations
                involving aliens ordered removed under section 238(b) of the Act and
                aliens whose removal is reinstated under section 241(a)(5) of the Act.
                * * * * *
                 (f) Removal of aliens with no reasonable fear of persecution or
                torture. If the asylum officer determines that the alien has not
                established a reasonable fear of persecution or torture, the asylum
                officer shall inform the alien in writing of the decision and shall
                inquire whether the alien wishes to have an immigration judge review
                the negative decision, using the Record of Negative Reasonable Fear
                Finding and Request for Review by Immigration Judge, on which the alien
                must indicate whether he or she desires such review. If the alien
                refuses to make an indication, DHS shall consider such a response as a
                decision to decline review.
                 (g) Review by immigration judge. The asylum officer's negative
                decision regarding reasonable fear shall be subject to review by an
                immigration judge upon the alien's request. If the alien requests such
                review, the asylum officer shall serve him or her with a Notice of
                Referral to Immigration Judge. The record of determination, including
                copies of the Notice of Referral to Immigration Judge, the asylum
                officer's notes, the summary of the material facts, and other materials
                upon which the determination was based shall be provided to the
                immigration judge with the negative determination. In the absence of
                exceptional circumstances, such review shall be conducted by the
                immigration judge within 10 days of the filing of the Notice of
                Referral to Immigration Judge with the immigration court. Upon review
                of the asylum officer's negative reasonable fear determination:
                 (1) If the immigration judge concurs with the asylum officer's
                determination that the alien does not have a reasonable fear of
                persecution or torture, the case shall be returned to DHS for removal
                of the alien. No appeal shall lie from the immigration judge's
                decision.
                 (2) If the immigration judge finds that the alien has a reasonable
                fear of persecution or torture, the alien may submit an Application for
                Asylum and Withholding of Removal.
                 (i) The immigration judge shall consider only the alien's
                application for withholding of removal under 8 CFR 1208.16 and shall
                determine whether the alien's removal to the country of removal must be
                withheld or deferred.
                 (ii) Appeal of the immigration judge's decision whether removal
                must be withheld or deferred lies with the Board of Immigration
                Appeals. If the alien or DHS appeals the immigration judge's decision,
                the Board shall review only the immigration judge's decision regarding
                the alien's eligibility for withholding or deferral of removal under 8
                CFR 1208.16.
                PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
                0
                16. The authority citation for part 235 continues to read as follows:
                 Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
                E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
                1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of Public
                Law 110-229; 8 U.S.C. 1185 note (section 7209 of Public Law 108-
                458); Public Law 112-54.
                0
                17. Amend Sec. 235.6 by
                0
                a. Revising paragraphs (a)(1)(ii), (a)(2)(i), and (iii); and
                0
                b. Adding paragraph (c).
                 The revisions and addition read as follows:
                Sec. 235.6 Referral to immigration judge.
                 (a) * * *
                 (1) * * *
                 (ii) If an immigration officer verifies that an alien subject to
                expedited removal under section 235(b)(1) of the Act has been admitted
                as a lawful permanent resident or refugee, or granted asylum, or, upon
                review pursuant to Sec. 235.3(b)(5)(iv), an immigration judge
                determines that the alien was once so admitted or granted asylum,
                provided that such status has not been terminated by final
                administrative action, and the Service initiates removal proceedings
                against the alien under section 240 of the Act.
                * * * * *
                 (2) * * *
                 (i) If an asylum officer determines that the alien does not have a
                credible fear of persecution, reasonable possibility of persecution, or
                reasonable possibility of torture, and the alien requests a review of
                that determination by an immigration judge; or
                * * * * *
                 (iii) If an immigration officer refers an applicant in accordance
                with the provisions of 8 CFR 208.30 or 8 CFR 208.31.
                * * * * *
                 (c) The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                * * * * *
                Department of Justice
                 Accordingly, for the reasons set forth in the preamble, the
                Attorney General proposed to amend 8 CFR parts 1003, 1208 and 1235 as
                follows:
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                18. The authority citation for part 1003 continues to read as follows:
                 Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
                1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
                1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
                2 Reorg. Plan No.
                [[Page 36299]]
                2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Public
                Law 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Public
                Law 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Public Law
                106-554, 114 Stat. 2763A-326 to -328.
                0
                19. Amend Sec. 1003.1 by revising paragraph (b)(9) to read as follows:
                Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
                Immigration Appeals.
                * * * * *
                 (b) * * *
                 (9) Decisions of Immigration Judges in asylum proceedings pursuant
                to Sec. 1208.2(b) and (c) of this chapter.
                * * * * *
                0
                20. Amend Sec. 1003.42 by:
                0
                a. Revising the section heading;
                0
                b. Revising paragraphs (a), (b), (d) through (g), and (h)(1), and the
                third sentence of pargraph (h)(3); and
                0
                c. Adding paragraph (i).
                 The revisions and addition read as follows:
                Sec. 1003.42 Review of credible fear of persecution, reasonable
                possibility of persecution, and reasonable possibility of torture
                determinations.
                 (a) Referral. Jurisdiction for an immigration judge to review a
                negative fear determination by an asylum officer pursuant to section
                235(b)(1)(B) of the Act shall commence with the filing by DHS of the
                Notice of Referral to Immigration Judge. DHS shall also file with the
                notice of referral a copy of the written record of determination as
                defined in section 235(b)(1)(B)(iii)(II) of the Act, including a copy
                of the alien's written request for review, if any.
                 (b) Record of proceeding. The Immigration Court shall create a
                Record of Proceeding for a review of a negative fear determination.
                This record shall not be merged with any later proceeding involving the
                same alien.
                * * * * *
                 (d) Standard of review. (1) The immigration judge shall make a de
                novo determination as to whether there is a significant possibility,
                taking into account the credibility of the statements made by the alien
                in support of the alien's claim, whether the alien is subject to any
                mandatory bars to applying for asylum or being eligible for asylum
                under section 208(a)(2)(B)-(D) and (b)(2) of the Act, including any
                bars established by regulation under section 208(b)(2)(C) of the Act,
                and such other facts as are known to the immigration judge, that the
                alien could establish his or her ability to apply for or be granted
                asylum under section 208 of the Act. The immigration judge shall make a
                de novo determination as to whether there is a reasonable possibility,
                taking into account the credibility of the statements made by the alien
                in support of the alien's claim, whether the alien is subject to any
                mandatory bars to eligibility for withholding of removal under section
                241(b)(3)(B) of the Act, and such other facts as are known to the
                immigration judge, that the alien would be persecuted on account of his
                or her race, religion, nationality, membership in a particular social
                group, or political opinion in the country of removal, consistent with
                the criteria in 8 CFR 1208.16(b). The immigration judge shall also make
                a de novo determination as to whether there is a reasonable
                possibility, taking into account the credibility of the statements made
                by the alien in support of the alien's claim and such other facts as
                are known to the immigration judge, that the alien would be tortured in
                the country of removal, consistent with the criteria in 8 CFR
                1208.16(c), 8 CFR 1208.17, and 8 CFR 1208.18.
                 (2) If the alien is determined to be an alien described in 8 CFR
                208.13(c)(3) or 8 CFR 1208.13(c)(3) and is determined to lack a
                reasonable possibility of persecution or torture under 8 CFR
                208.30(e)(5)(ii), the Immigration Judge shall first review de novo the
                determination that the alien is described in 8 CFR 208.13(c)(3) or 8
                CFR 1208.13(c)(3) prior to any further review of the asylum officer's
                negative fear determination.
                 (3) If the alien is determined to be an alien described in 8 CFR
                208.13(c)(4) or 8 CFR 1208.13(c)(4) and is determined to lack a
                reasonable possibility of persecution or torture under 8 CFR
                208.30(e)(5)(iii), the immigration judge shall first review de novo the
                determination that the alien is described in 8 CFR 208.13(c)(4) or 8
                CFR 1208.13(c)(4) prior to any further review of the asylum officer's
                negative fear determination.
                 (e) Timing. The immigration judge shall conclude the review to the
                maximum extent practicable within 24 hours, but in no case later than 7
                days after the date the supervisory asylum officer has approved the
                asylum officer's negative credible fear determination issued on the
                Record of Negative Credible Fear Finding and Request for Review.
                 (f) Decision. (1) The decision of the immigration judge shall be
                rendered in accordance with the provisions of 8 CFR 1208.30(g)(2). In
                reviewing the negative fear determination by DHS, the immigration judge
                shall apply relevant precedent issued by the Board of Immigration
                Appeals, the Attorney General, the federal circuit court of appeals
                having jurisdiction over the immigration court where the Request for
                Review is filed, and the Supreme Court.
                 (2) No appeal shall lie from a review of a negative fear
                determination made by an Immigration Judge, but the Attorney General,
                in the Attorney General's sole and unreviewable discretion, may direct
                that the Immigration Judge refer a case for the Attorney General's
                review following the Immigration Judge's review of a negative fear
                determination.
                 (3) In any case the Attorney General decides, the Attorney
                General's decision shall be stated in writing and shall be transmitted
                to the Board for transmittal and service as provided in Sec.
                1003.1(f). Such decision by the Attorney General may be designated as
                precedent as provided in Sec. 1003.1(g).
                 (g) Custody. An immigration judge shall have no authority to review
                an alien's custody status in the course of a review of a negative fear
                determination made by DHS.
                 (h) * * *
                 (1) Arriving alien. An immigration judge has no jurisdiction to
                review a determination by an asylum officer that an arriving alien is
                not eligible to apply for asylum pursuant to the 2002 U.S.-Canada
                Agreement formed under section 208(a)(2)(A) of the Act and should be
                returned to Canada to pursue his or her claims for asylum or other
                protection under the laws of Canada. See 8 CFR 208.30(e)(6). However,
                in any case where an asylum officer has found that an arriving alien
                qualifies for an exception to that Agreement, an immigration judge does
                have jurisdiction to review a negative fear finding made thereafter by
                the asylum officer as provided in this section.
                * * * * *
                 (3) * * * However, if the asylum officer has determined that the
                alien may not or should not be removed to a third country under section
                208(a)(2)(A) of the Act and subsequently makes a negative fear
                determination, an immigration judge has jurisdiction to review the
                negative fear finding as provided in this section.
                * * * * *
                 (i) The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                * * * * *
                [[Page 36300]]
                PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                21. The authority citation for part 1208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                VII of Public Law 110-229.
                0
                22. Amend Sec. 1208.1 by adding paragraphs (c), (d), (e), and (f) to
                read as follows:
                Sec. 1208.1 General.
                * * * * *
                 (c) Particular social group. For purposes of adjudicating an
                application for asylum under section 208 of the Act or an application
                for withholding of removal under section 241(b)(3) of the Act, a
                particular social group is one that is based on an immutable or
                fundamental characteristic, is defined with particularity, and is
                recognized as socially distinct in the society at question. Such a
                particular social group cannot be defined exclusively by the alleged
                persecutory acts or harm and must also have existed independently of
                the alleged persecutory acts or harm that forms the basis of the claim.
                The Attorney General, in general, will not favorably adjudicate claims
                of aliens who claim a fear of persecution on account of membership in a
                particular social group consisting of or defined by the following
                circumstances: Past or present criminal activity or association
                (including gang membership); presence in a country with generalized
                violence or a high crime rate; being the subject of a recruitment
                effort by criminal, terrorist, or persecutory groups; the targeting of
                the applicant for criminal activity for financial gain based on
                perceptions of wealth or affluence; interpersonal disputes of which
                governmental authorities were unaware or uninvolved; private criminal
                acts of which governmental authorities were unaware or uninvolved; past
                or present terrorist activity or association; past or present
                persecutory activity or association; or, status as an alien returning
                from the United States. This list is nonexhaustive, and the substance
                of the alleged particular social group, rather than the precise form of
                its delineation, shall be considered in determining whether the group
                falls within one of the categories on the list. No alien shall be found
                to be a refugee or have it decided that the alien's life or freedom
                would be threatened based on membership in a particular social group in
                any case unless that person first articulates on the record, or
                provides a basis on the record for determining, the definition and
                boundaries of the alleged particular social group. A failure to define,
                or provide a basis for defining, a formulation of a particular social
                group before an immigration judge shall waive any such claim for all
                purposes under the Act, including on appeal, and any waived claim on
                this basis shall not serve as the basis for any motion to reopen or
                reconsider for any reason, including a claim of ineffective assistance
                of counsel.
                 (d) Political opinion. For purposes of adjudicating an application
                for asylum under section 208 of the Act or an application for
                withholding of removal under section 241(b)(3) of the Act, a political
                opinion is one expressed by or imputed to an applicant in which the
                applicant possesses an ideal or conviction in support of the
                furtherance of a discrete cause related to political control of a state
                or a unit thereof. The Attorney General, in general, will not favorably
                adjudicate claims of aliens who claim a fear of persecution on account
                of a political opinion defined solely by generalized disapproval of,
                disagreement with, or opposition to criminal, terrorist, gang,
                guerilla, or other non-state organizations absent expressive behavior
                in furtherance of a cause against such organizations related to efforts
                by the state to control such organizations or behavior that is
                antithetical to or otherwise opposes the ruling legal entity of the
                state or a legal sub-unit of the state. A person who has been forced to
                abort a pregnancy or to undergo involuntary sterilization, or who has
                been persecuted for failure or refusal to undergo such a procedure or
                for other resistance to a coercive population control program, shall be
                deemed to have been persecuted on account of political opinion, and a
                person who has a well-founded fear that he or she will be forced to
                undergo such a procedure or subject to persecution for such failure,
                refusal, or resistance shall be deemed to have a well-founded fear of
                persecution on account of political opinion.
                 (e) Persecution. For purposes of adjudicating an application for
                asylum under section 208 of the Act or an application for withholding
                of removal under section 241(b)(3) of the Act, persecution requires an
                intent to target a belief or characteristic, a severe level of harm,
                and the infliction of a severe level of harm by the government of a
                country or by persons or an organization that the government was unable
                or unwilling to control. For purposes of evaluating the severity of the
                level of harm, persecution is an extreme concept involving a severe
                level of harm that includes actions so severe that they constitute an
                exigent threat. Persecution does not encompass the generalized harm
                that arises out of civil, criminal, or military strife in a country,
                nor does it encompass all treatment that the United States regards as
                unfair, offensive, unjust, or even unlawful or unconstitutional. It
                does not include intermittent harassment, including brief detentions;
                threats with no actual effort to carry out the threats; or, non-severe
                economic harm or property damage, though this list is nonexhaustive.
                The existence of government laws or policies that are unenforced or
                infrequently enforced do not, by themselves, constitute persecution,
                unless there is credible evidence that those laws or policies have been
                or would be applied to an applicant personally.
                 (f) Nexus--(1) General. For purposes of adjudicating an application
                for asylum under section 208 of the Act or an application for
                withholding of removal under section 241(b)(3) of the Act, the Attorney
                General, in general, will not favorably adjudicate the claims of aliens
                who claim persecution based on the following list of nonexhaustive
                circumstances:
                 (i) Interpersonal animus or retribution;
                 (ii) Interpersonal animus in which the alleged persecutor has not
                targeted, or manifested an animus against, other members of an alleged
                particular social group in addition to the member who has raised the
                claim at issue;
                 (iii) Generalized disapproval of, disagreement with, or opposition
                to criminal, terrorist, gang, guerilla, or other non-state
                organizations absent expressive behavior in furtherance of a discrete
                cause against such organizations related to control of a state or
                expressive behavior that is antithetical to the state or a legal unit
                of the state;
                 (iv) Resistance to recruitment or coercion by guerilla, criminal,
                gang, terrorist or other non-state organizations;
                 (v) The targeting of the applicant for criminal activity for
                financial gain based on wealth or affluence or perceptions of wealth or
                affluence;
                 (vi) Criminal activity;
                 (vii) Perceived, past or present, gang affiliation; or,
                 (viii) Gender.
                 (2) [Reserved]
                 (g) Evidence based on stereotypes. For purposes of adjudicating an
                application for asylum under section 208 of the Act or an application
                for withholding of removal under section 241(b)(3) of the Act, evidence
                promoting cultural stereotypes about an individual or a country,
                including stereotypes based on race, religion, nationality, or gender,
                and offered to support the basis of an
                [[Page 36301]]
                alleged fear of harm from the individual or country shall not be
                admissible in adjudicating that application.
                0
                23. Amend Sec. 1208.2 by adding paragraph (c)(1)(ix) to read as
                follows:
                Sec. 1208.2 Jurisdiction.
                * * * * *
                 (c) * * *
                 (1) * * *
                 (ix) An alien found to have a credible fear of persecution,
                reasonable possibility of persecution, or reasonable possibility of
                torture in accordance with Sec. 208.30 of this title, Sec. 1003.42 of
                this chapter or Sec. 1208.30.
                * * * * *
                0
                24. Amend Sec. 1208.5 by revising the first sentence of paragraph (a)
                to read as follows:
                Sec. 1208.5 Special duties toward aliens in custody of DHS.
                 (a) General. When an alien in the custody of DHS requests asylum or
                withholding of removal, or expresses a fear of persecution or harm upon
                return to his or her country of origin or to agents thereof, DHS shall
                make available the appropriate application forms and shall provide the
                applicant with the information required by section 208(d)(4) of the
                Act, including in the case of an alien who is in custody with a
                positive credible fear determination under 8 CFR 208.30 or a reasonable
                fear determination pursuant to 8 CFR 208.31, and except in the case of
                an alien who is in custody pending a credible fear determination under
                8 CFR 208.30 or a reasonable fear determination pursuant to 8 CFR
                208.31. * * *
                * * * * *
                0
                25. Amend Sec. 1208.6 by revising paragraph (b) and adding paragraphs
                (d) and (e) to read as follows:
                Sec. 1208.6 Disclosure to third parties.
                * * * * *
                 (b) The confidentiality of other records kept by DHS and the
                Executive Office for Immigration Review that indicate that a specific
                alien has applied for asylum, received a credible fear or reasonable
                fear interview, or received a credible fear or reasonable fear review
                shall also be protected from disclosure, except as permitted in this
                section. DHS will coordinate with the Department of State to ensure
                that the confidentiality of those records is maintained if they are
                transmitted to Department of State offices in other countries.
                * * * * *
                 (d)(1) Any information contained in an application for asylum,
                withholding of removal under section 241(b)(3) the Act, or protection
                under regulations issued pursuant to the Convention Against Torture's
                implementing legislation, any relevant and applicable information
                supporting that application, any information regarding an alien who has
                filed such an application, and any relevant and applicable information
                regarding an alien who has been the subject of a reasonable fear or
                credible fear determination may be disclosed:
                 (i) As part of an investigation or adjudication of the merits of
                that application or of any other application under the immigration
                laws,
                 (ii) As part of any state or federal criminal investigation,
                proceeding, or prosecution;
                 (iii) Pursuant to any state or federal mandatory reporting
                requirement;
                 (iv) To deter, prevent, or ameliorate the effects of child abuse;
                 (v) As part of any proceeding arising under the immigration laws,
                including proceedings arising under the Act; and
                 (vi) As part of the Government's defense of any legal action
                relating to the alien's immigration or custody status, including
                petitions for review filed in accordance with 8 U.S.C. 1252.
                 (2) If information may be disclosed under paragraph (d)(1) of this
                section, the disclosure provisions in paragraphs (a), (b), and (c) of
                this section shall not apply.
                 (e) Nothing in this section shall be construed as prohibiting the
                disclosure of information contained in an application for asylum,
                withholding of removal under section 241(b)(3)(B) of the Act, or
                protection under the regulations issued pursuant to the Convention
                Against Torture's implementing legislation, any relevant and applicable
                information supporting that application, information regarding an alien
                who has filed such an application, or information regarding an alien
                who has been the subject of a reasonable fear or credible fear
                determination:
                 (1) Among employees of the Department of Justice, the Department of
                Homeland Security, the Department of State, the Department of Health
                and Human Services, the Department of Labor, or a U.S. national
                security agency having a need to examine the information for an
                official purpose; or
                 (2) Where a United States government employee or contractor has a
                good faith and reasonable belief that disclosure is necessary to
                prevent the commission of a crime, the furtherance of an ongoing crime,
                or to ameliorate the effects of a crime.
                0
                26. Section 1208.13 is amended by:
                0
                a. Revising paragraph (b)(3) introductory text;
                0
                b. Revising paragraph (b)(3)(ii);
                0
                c. Adding paragraphs (b)(3)(iii) and (b)(3)(iv); and
                0
                d. Adding paragraphs (d) and (e).
                 The revisions and additions read as follows:
                Sec. 1208.13 Establishing asylum eligibility.
                * * * * *
                 (b) * * *
                 (3) Reasonableness of internal relocation. For purposes of
                determinations under paragraphs (b)(1)(i), (ii), and (b)(2) of this
                section, adjudicators should consider the totality of the relevant
                circumstances regarding an applicant's prospects for relocation,
                including the size of the country of nationality or last habitual
                residence, the geographic locus of the alleged persecution, the size,
                numerosity, and reach of the alleged persecutor, and the applicant's
                demonstrated ability to relocate to the United States in order to apply
                for asylum.
                * * * * *
                 (ii) In cases in which the persecutor is a government or is
                government-sponsored, it shall be presumed that internal relocation
                would not be reasonable, unless the Department of Homeland Security
                establishes by a preponderance of the evidence that, under all the
                circumstances, it would be reasonable for the applicant to relocate.
                 (iii) Regardless of whether an applicant has established
                persecution in the past, in cases in which the persecutor is not the
                government or a government-sponsored actor, or otherwise is a private
                actor, there shall be a presumption that internal relocation would be
                reasonable unless the applicant establishes, by a preponderance of the
                evidence, that it would be unreasonable to relocate.
                 (iv) For purposes of determinations under paragraphs (b)(3)(ii) and
                (iii) of this section, persecutors who are private actors--including
                persecutors who are gang members, officials acting outside their
                official capacity, family members who are not themselves government
                officials, or neighbors who are not themselves government officials--
                shall not be considered to be persecutors who are the government or
                government-sponsored absent evidence that the government sponsored the
                persecution.
                * * * * *
                 (d) Discretion. Factors that fall short of grounds of mandatory
                denial of an asylum application may constitute discretionary
                considerations.
                 (1) Significant adverse discretionary factors. The following are
                significant adverse discretionary factors that a decision-maker shall
                consider, if applicable, in determining whether an
                [[Page 36302]]
                alien merits a grant of asylum in the exercise of discretion:
                 (i) An alien's unlawful entry or unlawful attempted entry into the
                United States unless such entry or attempted entry was made in
                immediate flight from persecution in a contiguous country;
                 (ii) The failure of an alien to apply for protection from
                persecution or torture in at least one country outside the alien's
                country of citizenship, nationality, or last lawful habitual residence
                through which the alien transited before entering the United States
                unless:
                 (A) The alien received a final judgment denying the alien
                protection in such country;
                 (B) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (C) Such country or countries were, at the time of the transit, not
                parties to the 1951 United Nations Convention relating to the Status of
                Refugees, the 1967 Protocol, or the United Nations Convention Against
                Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
                and
                 (iii) An alien's use of fraudulent documents to enter the United
                States, unless the alien arrived in the United States by air, sea, or
                land directly from the applicant's home country without transiting
                through any other country.
                 (2)(i) The Attorney General, except as provided in paragraph
                (d)(2)(ii) of this section, will not favorably exercise discretion
                under section 208 of the Act for an alien who:
                 (A) Immediately prior to his arrival in the United States or en
                route to the United States from the alien's country of citizenship,
                nationality, or last lawful habitual residence, spent more than 14 days
                in any one country unless:
                 (1) The alien demonstrates that he or she applied for protection
                from persecution or torture in such country and the alien received a
                final judgment denying the alien protection in such country;
                 (2) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (3) Such country was, at the time of the transit, not a party to
                the 1951 United Nations Convention relating to the Status of Refugees,
                the 1967 Protocol, or the United Nations Convention against Torture and
                Other Cruel, Inhuman or Degrading Treatment or Punishment;
                 (B) Transits through more than one country between his country of
                citizenship, nationality, or last habitual residence and the United
                States unless:
                 (1) The alien demonstrates that he or she applied for protection
                from persecution or torture in at least one such country and the alien
                received a final judgment denying the alien protection in such country;
                 (2) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (3) All such countries through which the alien transited en route
                to the United States were, at the time of the transit, not parties to
                the 1951 United Nations Convention relating to the Status of Refugees,
                the 1967 Protocol, or the United Nations Convention against Torture and
                Other Cruel, Inhuman or Degrading Treatment or Punishment;
                 (C) Would otherwise be subject to paragraph (c) of this section but
                for the reversal, vacatur, expungement, or modification of a conviction
                or sentence unless the alien was found not guilty;
                 (D) Accrued more than one year of unlawful presence in the United
                States prior to filing an application for asylum;
                 (E) At the time the asylum application is filed with the
                immigration court or is referred from DHS has:
                 (1) Failed to timely file (or timely file a request for an
                extension of time to file) any required federal, state, or local income
                tax returns;
                 (2) Failed to satisfy any outstanding federal, state, or local tax
                obligations; or
                 (3) Has income that would result in tax liability under section 1
                of the Internal Revenue Code of 1986 and that was not reported to the
                Internal Revenue Service;
                 (F) Has had two or more prior asylum applications denied for any
                reason;
                 (G) Has withdrawn a prior asylum application with prejudice or been
                found to have abandoned a prior asylum application;
                 (H) Failed to attend an interview regarding his or her asylum
                application with DHS, unless the alien shows by a preponderance of the
                evidence that:
                 (1) Exceptional circumstances prevented the alien from attending
                the interview; or
                 (2) The interview notice was not mailed to the last address
                provided by the alien or the alien's representative and neither the
                alien nor the alien's representative received notice of the interview;
                or
                 (I) Was subject to a final order of removal, deportation, or
                exclusion and did not file a motion to reopen to seek asylum based on
                changed country conditions within one year of the changes in country
                conditions.
                 (ii) Where one or more of the adverse discretionary factors set
                forth in paragraph (d)(2)(i) of this section are present, the Attorney
                General, in extraordinary circumstances, such as those involving
                national security or foreign policy considerations, or cases in which
                an alien, by clear and convincing evidence, demonstrates that the
                denial of the application for asylum would result in exceptional and
                extremely unusual hardship to the alien, may favorably exercise
                discretion under section 208 of the Act, notwithstanding the
                applicability of paragraph (d)(2)(i) of this section. Depending on the
                gravity of the circumstances underlying the application of paragraph
                (d)(2)(i) of this section, a showing of extraordinary circumstances
                might still be insufficient to warrant a favorable exercise of
                discretion under section 208 of the Act.
                 (e) Prima facie eligibility. (1) Notwithstanding any other
                provision of this part, upon oral or written motion by the Department
                of Homeland Security, an immigration judge shall, if warranted by the
                record, pretermit and deny any application for asylum, withholding of
                removal under section 241(b)(3) of the Act, or protection under the
                regulations issued pursuant to the Convention Against Torture's
                implementing legislation if the alien has not established a prima facie
                claim for relief or protection under applicable law. An immigration
                judge need not conduct a hearing prior to pretermitting and denying an
                application under this paragraph (e)(1) but must consider any response
                to the motion before making a decision.
                 (2) Notwithstanding any other provision of this part, upon his or
                her own authority, an immigration judge shall, if warranted by the
                record, pretermit and deny any application for asylum, withholding of
                removal under section 241(b)(3) of the Act, or protection under the
                regulations issued pursuant to the Convention Against Torture's
                implementing legislation if the alien has not established a prima facie
                claim for relief or protection under applicable law, provided that the
                immigration judge shall give the parties at least 10 days' notice prior
                to entering such an order. An immigration judge need not conduct a
                hearing prior to pretermitting and denying an application under this
                paragraph (e)(2) but must consider any filings by the parties within
                the 10-day period before making a decision.
                0
                27. Amend Sec. 1208.14 by
                0
                a. In paragraphs (c)(4)(ii) introductory text and (c)(4)(ii)(A),
                removing the words ``Sec. 1235.3(b) of this chapter'' and adding, in
                their place, the words ``Sec. 235.3(b) of this title''; and
                0
                b. In paragraph (c)(4)(ii)(A), removing the citations ``Sec. 1208.30''
                and
                [[Page 36303]]
                ``Sec. 1208.30(b)'' and adding, in their place, the words ``Sec.
                208.30 of this title''.
                0
                28. Section 1208.15 is revised to read as follows:
                Sec. 1208.15 Definition of ``firm resettlement.''
                 (a) An alien is considered to be firmly resettled if:
                 (1) The alien either resided or could have resided in any permanent
                legal immigration status or any non-permanent but potentially
                indefinitely renewable legal immigration status (including asylee,
                refugee, or similar status but excluding a status such as a tourist) in
                a country through which the alien transited prior to arriving in or
                entering the United States, regardless of whether the alien applied for
                or was offered such status;
                 (2) The alien physically resided voluntarily, and without
                continuing to suffer persecution, in any one country for one year or
                more after departing his country of nationality or last habitual
                residence and prior to arrival in or entry into the United States; or
                 (3)(i) The alien is a citizen of a country other than the one where
                the alien alleges a fear of persecution and the alien was present in
                that country prior to arriving in the United States; or
                 (ii) The alien was a citizen of a country other than the one where
                the alien alleges a fear of persecution, the alien was present in that
                country prior to arriving in the United States, and the alien renounced
                that citizenship prior to or after arriving in the United States.
                 (b) The provisions of 8 CFR 1240.8(d) shall apply when the evidence
                of record indicates that the firm resettlement bar may apply. In such
                cases, the alien shall bear the burden of proving the bar does not
                apply. Either the Department of Homeland Security or the immigration
                judge may raise the issue of the application of the firm resettlement
                bar based on the evidence of record. The firm resettlement of an
                alien's parent(s) shall be imputed to the alien if the resettlement
                occurred before the alien turned 18 and the alien resided with the
                alien's parents at the time of the firm resettlement unless he or she
                could not have derived any permanent legal immigration status or any
                non-permanent legal immigration status potentially indefinitely
                renewable (including asylee, refugee, or similar status but excluding
                status such as of a tourist) from the alien's parent.
                0
                29. Amend Sec. 1208.16 by;
                0
                a. Revising paragraph (b)(3) introductory text;
                0
                b. Revising paragraph (b)(3)(ii); and
                0
                c. Adding paragraphs (b)(3)(iii) and (b)(3)(iv).
                 The revisions and addition read as follows:
                Sec. 1208.16 Withholding of removal under section 241(b)(3)(B) of the
                Act and withholding of removal under the Convention Against Torture.
                * * * * *
                 (b) * * *
                 (3) Reasonableness of internal relocation. For purposes of
                determinations under paragraphs (b)(1) and (b)(2) of this section,
                adjudicators should consider the totality of the relevant circumstances
                regarding an applicant's prospects for relocation, including the size
                of the country of nationality or last habitual residence, the
                geographic locus of the alleged persecution, the size, reach, or
                numerosity of the alleged persecutor, and the applicant's demonstrated
                ability to relocate to the United States in order to apply for
                withholding of removal.
                * * * * *
                 (ii) In cases in which the persecutor is a government or is
                government-sponsored, it shall be presumed that internal relocation
                would not be reasonable, unless the DHS establishes by a preponderance
                of the evidence that, under all the circumstances, it would be
                reasonable for the applicant to relocate.
                 (iii) Regardless of whether an applicant has established
                persecution in the past, in cases in which the persecutor is not the
                government or a government-sponsored actor, or otherwise is a private
                actor, there shall be a presumption that internal relocation would be
                reasonable unless the applicant establishes, by a preponderance of the
                evidence, that it would be unreasonable to relocate.
                 (iv) For purposes of determinations under paragraphs (b)(3)(ii) and
                (b)(3)(iii) of this section, persecutors who are private actors,
                including persecutors who are gang members, officials acting outside
                their official capacity, or family members who are not themselves
                government officials or neighbors who are not themselves government
                officials, shall not be considered to be persecutors who are the
                government or government-sponsored absent evidence that the government
                sponsored the persecution.
                * * * * *
                0
                30. Amend Sec. 1208.18 by revising paragraphs (a)(1) and (7) to read
                as follows:
                Sec. 1208.18 Implementation of the Convention Against Torture.
                 (a) * * *
                 (1) Torture is defined as any act by which severe pain or
                suffering, whether physical or mental, is intentionally inflicted on a
                person for such purposes as obtaining from him or her or a third person
                information or a confession, punishing him or her for an act he or she
                or a third person has committed or is suspected of having committed,
                intimidating or coercing him or her or a third person, or for any
                reason based on discrimination of any kind, when such pain or suffering
                is inflicted by, or at the instigation of, or with the consent or
                acquiescence of, a public official acting in an official capacity or
                other person acting in an official capacity. Pain or suffering
                inflicted by a public official who is not acting under color of law
                (``rogue official'') shall not constitute pain or suffering inflicted
                by, or at the instigation of, or with the consent or acquiescence of, a
                public official acting in an official capacity or other person acting
                in an official capacity, although a different public official acting in
                an official capacity or other person acting in an official capacity
                could instigate, consent to, or acquiesce in the pain or suffering
                inflicted by the rogue official.
                * * * * *
                 (7) Acquiescence of a public official requires that the public
                official, prior to the activity constituting torture, have awareness of
                such activity and thereafter breach his or her legal responsibility to
                intervene to prevent such activity. Such awareness requires a finding
                of either actual knowledge or willful blindness. Willful blindness
                means that the public official acting in an official capacity or other
                person acting in an official capacity was aware of a high probability
                of activity constituting torture and deliberately avoided learning the
                truth; it is not enough that such public official acting in an official
                capacity or other person acting in an official capacity was mistaken,
                recklessly disregarded the truth, or negligently failed to inquire. In
                order for a public official to breach his or her legal responsibility
                to intervene to prevent activity constituting torture, the official
                must have been charged with preventing the activity as part of his or
                her duties and have failed to intervene. No person will be deemed to
                have breached a legal responsibility to intervene if such person is
                unable to intervene, or if the person intervenes but is unable to
                prevent the activity that constitutes torture.
                * * * * *
                0
                31. Revise Sec. 1208.20 to read as follows:
                Sec. 1208.20 Determining if an asylum application is frivolous.
                 (a) For applications filed on or after April 1, 1997, an applicant
                is subject to
                [[Page 36304]]
                the provisions of section 208(d)(6) of the Act only if the alien
                received the notice required by section 208(d)(4)(A) of the Act and a
                final order by an immigration judge or the Board of Immigration Appeals
                specifically finds that the alien knowingly filed a frivolous asylum
                application. An alien knowingly files a frivolous asylum application
                if:
                 (1) The application is described in paragraph (b) of this section;
                and
                 (2) The alien filed the application with either actual knowledge,
                or willful blindness, of the fact that the application was described in
                paragraph (b).
                 (b) For applications filed on or after [INSERT EFFECTIVE DATE OF
                FINAL RULE], an asylum officer may determine that the applicant
                knowingly filed a frivolous asylum application and may refer the
                applicant to an immigration judge on that basis, so long as the
                applicant has received the notice required by section 208(d)(4)(A) of
                the Act. Such finding will only be made if the asylum officer is
                satisfied that the applicant has had sufficient opportunity to account
                for any discrepancies or implausible aspects of the claim. For
                applications referred to an immigration judge, an asylum officer's
                determination that an application is frivolous will not render an
                applicant permanently ineligible for immigration benefits unless an
                immigration judge or the Board makes a finding of frivolousness as
                described in paragraph (a) of this section.
                 (c) For purposes of this section, beginning on [INSERT EFFECTIVE
                DATE OF FINAL RULE], an asylum application is frivolous if it:
                 (1) Contains a fabricated essential element;
                 (2) Is premised upon false or fabricated evidence unless the
                application would have been granted without the false or fabricated
                evidence;
                 (3) Is filed without regard to the merits of the claim; or
                 (4) Is clearly foreclosed by applicable law.
                 (d) If the alien has been provided the warning required by section
                208(d)(4)(A) of the Act, he or she need not be given any additional or
                further opportunity to account for any issues with his or her claim
                prior to the entry of a frivolous finding.
                 (e) An asylum application may be found frivolous even if it was
                untimely filed.
                 (f) A withdrawn asylum application may be found frivolous unless:
                 (1) The alien wholly disclaims the application and withdraws it
                with prejudice;
                 (2) The alien is eligible for and agrees to accept voluntary
                departure for a period of no more than 30 days pursuant to section
                240B(a) of the Act;
                 (3) The alien withdraws any and all other applications for relief
                or protection with prejudice; and
                 (4) The alien waives his right to appeal and any rights to file,
                for any reason, a motion to reopen or reconsider.
                 (g) For purposes of this section, a finding that an alien filed a
                knowingly frivolous asylum application shall not preclude the alien
                from seeking withholding of removal under section 241(b)(3) of the Act
                or protection under the regulations issued pursuant to the Convention
                Against Torture's implementing legislation.
                0
                32. Add Sec. 1208.25 to read as follows:
                Sec. 1208.25 Severability.
                 The provisions of part 1208 are separate and severable from one
                another. In the event that any provision in part 1208 is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                0
                33. Amend Sec. 1208.30 by:
                0
                a. Revising the section heading; and
                0
                b. Revising paragraphs (a), (b) introductory text, (b)(2), (e), and
                (g).
                 The revisions read as follows:
                Sec. 1208.30 Credible fear of persecution, reasonable possibility of
                persecution, and reasonable possibility of torture determinations
                involving stowaways and applicants for admission who are found
                inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act
                or whose entry is limited or suspended under section 212(f) or
                215(a)(1) of the Act, or who failed to apply for protection from
                persecution in a third country where potential relief is available
                while en route to the United States.
                 (a) Jurisdiction. The provisions of this subpart B apply to aliens
                subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
                section 235(b)(1)(B) and 8 CFR 208.30, DHS has exclusive jurisdiction
                to make fear determinations, and the immigration judges have exclusive
                jurisdiction to review such determinations. Except as otherwise
                provided in this subpart B, paragraphs (b) through (g) of this section
                and 8 CFR 208.30 are the exclusive procedures applicable to stowaways
                and applicants for admission who are found inadmissible pursuant to
                section 212(a)(6)(C) or 212(a)(7) of the Act and who receive fear
                interviews, determinations, and reviews under section 235(b)(1)(B) of
                the Act and 8 CFR 208.30. Prior to January 1, 2030, an alien physically
                present in or arriving in the Commonwealth of the Northern Mariana
                Islands is ineligible to apply for asylum and may only establish
                eligibility for withholding of removal pursuant to section 241(b)(3) of
                the Act or withholding or deferral of removal under the regulations
                issued pursuant to the Convention Against Torture's implementing
                legislation.
                 (b) Treatment of dependents. A spouse or child of an alien may be
                included in that alien's fear evaluation and determination, if such
                spouse or child:
                * * * * *
                 (2) Desires to be included in the principal alien's determination.
                However, any alien may have his or her evaluation and determination
                made separately, if he or she expresses such a desire.
                * * * * *
                 (e) Determination. For the standards and procedures for asylum
                officers in conducting credible fear of persecution, reasonable
                possibility of persecution, and reasonable possibility of torture
                interviews and in making positive and negative fear determinations, see
                8 CFR 208.30. The immigration judges will review such determinations as
                provided in paragraph (g) of this section and 8 CFR 1003.42.
                * * * * *
                 (g) Procedures for negative fear determinations--(1) Review by
                immigration judge of a mandatory bar finding. (i) If the alien is
                determined to be an alien described in 8 CFR 208.13(c)(3) or Sec.
                1208.13(c)(3) and is determined to lack a credible fear of persecution
                or a reasonable possibility of persecution or torture under 8 CFR
                208.30(e)(5)(ii), the immigration judge shall first review de novo the
                determination that the alien is described in 8 CFR 208.13(c)(3) or
                Sec. 1208.13(c)(3). If the immigration judge finds that the alien is
                not described in 8 CFR 208.13(c)(3) or Sec. 1208.13(c)(3), then the
                immigration judge shall vacate the order of the asylum officer, and DHS
                may commence asylum-and-withholding-only proceedings under Sec.
                1208.2(c)(1). If the immigration judge concurs with the determination
                that the alien is an alien described in 8 CFR 208.13(c)(3) or Sec.
                1208.13(c)(3), the immigration judge will then review the asylum
                officer's negative determinations regarding credible fear and regarding
                reasonable possibility made under 8 CFR 208.30(e)(5)(iv) consistent
                with paragraph (g)(2) of this section, except that the immigration
                judge will review the fear of persecution findings under the reasonable
                possibility standard
                [[Page 36305]]
                instead of the credible fear standard described in paragraph (g)(2) of
                this section.
                 (ii) If the alien is determined to be an alien described as
                ineligible for asylum in 8 CFR 208.13(c)(4) or Sec. 1208.13(c)(4) and
                is determined to lack a reasonable possibility of persecution or
                torture under 8 CFR 208.30(e)(5)(v), the immigration judge shall first
                review de novo the determination that the alien is described as
                ineligible for asylum in 8 CFR 208.13(c)(4) or Sec. 1208.13(c)(4). If
                the immigration judge finds that the alien is not described as
                ineligible for asylum in 8 CFR 208.13(c)(4) or Sec. 1208.13(c)(4),
                then the immigration judge shall vacate the order of the asylum
                officer, and DHS may commence asylum-and-withholding-only proceedings
                under Sec. 1208.2(c)(1). If the immigration judge concurs with the
                determination that the alien is an alien described as ineligible for
                asylum in 8 CFR 208.13(c)(4) or Sec. 1208.13(c)(4), the immigration
                judge will then review the asylum officer's negative decision regarding
                reasonable possibility made under 8 CFR 208.30(e)(5)(v) consistent with
                paragraph (g)(2) of this section, except that the immigration judge
                will review the fear of persecution findings under the reasonable
                possibility standard instead of the credible fear of persecution
                standard described in paragraph (g)(2) of this section.
                 (2) Review by immigration judge of a negative fear finding. (i) The
                asylum officer's negative decision regarding a credible fear of
                persecution, reasonable possibility of persecution, and reasonable
                possibility of torture shall be subject to review by an immigration
                judge upon the applicant's request, in accordance with section
                235(b)(1)(B)(iii)(III) of the Act. If the alien refuses to make an
                indication, DHS will consider such a response as a decision to decline
                review.
                 (ii) The record of the negative fear determination, including
                copies of the Notice of Referral to Immigration Judge, the asylum
                officer's notes, the summary of the material facts, and other materials
                upon which the determination was based shall be provided to the
                immigration judge with the negative fear determination.
                 (iii) A fear hearing will be closed to the public unless the alien
                states for the record or submits a written statement that the alien is
                waiving that requirement; in that event the hearing shall be open to
                the public, subject to the immigration judge's discretion as provided
                in 8 CFR 1003.27.
                 (iv) Upon review of the asylum officer's negative fear
                determinations:
                 (A) If the immigration judge concurs with the determination of the
                asylum officer that the alien has not established a credible fear of
                persecution, reasonable possibility of persecution, or reasonable
                possibility of torture, the case shall be returned to DHS for removal
                of the alien. The immigration judge's decision is final and may not be
                appealed.
                 (B) If the immigration judge finds that the alien, other than an
                alien stowaway, establishes a credible fear of persecution, reasonable
                possibility of persecution, or reasonable possibility of torture, the
                immigration judge shall vacate the Notice and Order of Expedited
                Removal, and DHS may commence asylum-and-withholding-only proceedings
                under Sec. 1208.2(c)(1), during which time the alien may file an
                application for asylum and withholding of removal in accordance with
                Sec. 1208.4(b)(3)(i). Such application shall be considered de novo in
                all respects by an immigration judge regardless of any determination
                made under this paragraph.
                 (C) If the immigration judge finds that an alien stowaway
                establishes a credible fear of persecution, reasonable possibility of
                torture, or reasonable possibility of torture, the alien shall be
                allowed to file an application for asylum and for withholding of
                removal before the immigration judge in accordance with Sec.
                1208.4(b)(3)(iii). The immigration judge shall decide the application
                as provided in that section. Such application shall be considered de
                novo in all respects by an immigration judge regardless of any
                determination made under this paragraph. Such decision on that
                application may be appealed by either the stowaway or DHS to the Board
                of Immigration Appeals. If a denial of the application for asylum and
                for withholding of removal becomes final, and deferral of removal has
                not otherwise been granted pursuant to Sec. 1208.17(a), the alien
                shall be removed from the United States in accordance with section
                235(a)(2) of the Act. If an approval of the application for asylum,
                withholding of removal, or, as pertinent, deferral of removal becomes
                final, DHS shall terminate removal proceedings under section 235(a)(2)
                of the Act.
                0
                34. Amend Sec. 1208.31 by revising paragraph (f), (g) introductory
                text, (g)(1) and (2) to read as follows:
                Sec. 1208.31 Reasonable fear of persecution or torture determinations
                involving aliens ordered removed under section 238(b) of the Act and
                aliens whose removal is reinstated under section 241(a)(5) of the Act.
                * * * * *
                 (f) Removal of aliens with no reasonable fear of persecution or
                torture. If the asylum officer determines that the alien has not
                established a reasonable fear of persecution or torture, the asylum
                officer shall inform the alien in writing of the decision and shall
                inquire whether the alien wishes to have an immigration judge review
                the negative decision, using the Record of Negative Reasonable Fear
                Finding and Request for Review by Immigration Judge, on which the alien
                must indicate whether he or she desires such review. If the alien
                refuses to make an indication, DHS shall consider such a response as a
                decision to decline review.
                 (g) Review by Immigration Judge. The asylum officer's negative
                decision regarding reasonable fear shall be subject to review by an
                immigration judge upon the alien's request. If the alien requests such
                review, the asylum officer shall serve him or her with a Notice of
                Referral to the Immigration Judge. The record of determination,
                including copies of the Notice of Referral to the Immigration Judge,
                the asylum officer's notes, the summary of the material facts, and
                other materials upon which the determination was based shall be
                provided to the immigration judge with the negative determination. In
                the absence of exceptional circumstances, such review shall be
                conducted by the immigration judge within 10 days of the filing of the
                Notice of Referral to the Immigration Judge with the immigration court.
                Upon review of the asylum officer's negative reasonable fear
                determination:
                 (1) If the immigration judge concurs with the asylum officer's
                determination that the alien does not have a reasonable fear of
                persecution or torture, the case shall be returned to DHS for removal
                of the alien. No appeal shall lie from the immigration judge's
                decision.
                 (2) If the immigration judge finds that the alien has a reasonable
                fear of persecution or torture, the alien may submit an Application for
                Asylum and Withholding of Removal. Such application shall be considered
                de novo in all respects by an immigration judge regardless of any
                determination made under this paragraph.
                 (i) The immigration judge shall consider only the alien's
                application for withholding of removal under Sec. 1208.16 and shall
                determine whether the alien's removal to the country of removal must be
                withheld or deferred.
                 (ii) Appeal of the immigration judge's decision whether removal
                must be withheld or deferred lies with the Board of Immigration
                Appeals. If the alien or DHS appeals the immigration judge's
                [[Page 36306]]
                decision, the Board shall review only the immigration judge's decision
                regarding the alien's eligibility for withholding or deferral of
                removal under Sec. 1208.16.
                PART 1212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
                ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
                0
                35. The authority citation for part 1212 continues to read as follows:
                 Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
                1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note
                (section 7209 of Public Law 108-458); Title VII of Public Law 110-
                229.
                0
                36. Add Sec. 1212.13 to read as follows:
                Sec. 1212.13 Severability.
                 The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                0
                37. Amend Sec. 1212.14(a)(1)(vii), by removing the words ``Sec.
                1235.3 of this chapter'' and adding, in their place, the words ``Sec.
                235.3 of this title''.
                PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
                0
                38. The authority citation for part 1235 continues to read as follows:
                 Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
                E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
                1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law 110-
                229; 8 U.S.C. 1185 note (section 7209 of Public Law 108-458).
                Sec. Sec. 1235.1, 1235.2, 1235.3 and 1235.5 [Removed]
                0
                39. Remove and reserve Sec. Sec. 1235.1, 1235.2, 1235.3, and 1235.5.
                0
                40. Amend Sec. 1235.6 by:
                0
                a. Removing paragraphs (a)(1)(ii) and (iii);
                0
                b. Redesignating paragraph (a)(1)(iv) as paragraph (a)(1)(ii);
                0
                c. Revising newly redesignated paragraph (a)(1)(ii), and paragraphs
                (a)(2)(i), and (iii); and
                0
                d. Adding paragraph (c).
                 The revisions and addition read as follows:
                Sec. 1235.6 Referral to immigration judge.
                 (a) * * *
                 (1) * * *
                 (ii) If an immigration officer verifies that an alien subject to
                expedited removal under section 235(b)(1) of the Act has been admitted
                as a lawful permanent resident or refugee, or granted asylum, or, upon
                review pursuant to Sec. 235.3(b)(5)(iv) of this title, an immigration
                judge determines that the alien was once so admitted or granted asylum,
                provided that such status has not been terminated by final
                administrative action, and the Service initiates removal proceedings
                against the alien under section 240 of the Act.
                * * * * *
                 (2) * * *
                 (i) If an asylum officer determines that an alien does not have a
                credible fear of persecution, reasonable possibility of persecution, or
                reasonable possibility of torture, and the alien requests a review of
                that determination by an immigration judge; or
                * * * * *
                 (iii) If an immigration officer refers an applicant in accordance
                with the provisions of Sec. 208.30 or Sec. 208.31.
                * * * * *
                 (c) The provisions of this part are separate and severable from one
                another. In the event that any provision in this part is stayed,
                enjoined, not implemented, or otherwise held invalid, the remaining
                provisions shall nevertheless be implemented as an independent rule and
                continue in effect.
                * * * * *
                Chad R. Mizelle,
                Senior Official Performing the Duties of the General Counsel, U.S.
                Department of Homeland Security.
                 Dated: June 4, 2020.
                William P. Barr,
                Attorney General.
                [FR Doc. 2020-12575 Filed 6-10-20; 4:15 pm]
                BILLING CODE 4410-30-P; 9111-97-P
                

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