Procedures for Asylum and Bars to Asylum Eligibility
| Citation | 85 FR 67202 |
| Record Number | 2020-23159 |
| Published date | 21 October 2020 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 85 Issue 204 (Wednesday, October 21, 2020)
[Federal Register Volume 85, Number 204 (Wednesday, October 21, 2020)]
[Rules and Regulations]
[Pages 67202-67260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23159]
[[Page 67201]]
Vol. 85
Wednesday,
No. 204
October 21, 2020
Part IVDepartment of Homeland Security-----------------------------------------------------------------------Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------8 CFR Parts 208 and 1208Procedures for Asylum and Bars to Asylum Eligibility; Final Rule
Federal Register / Vol. 85, No. 204 / Wednesday, October 21, 2020 /
Rules and Regulations
[[Page 67202]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
RIN 1615-AC41
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[EOIR Docket No. 18-0002; A.G. Order No. 4873-2020]
RIN 1125-AA87
Procedures for Asylum and Bars to Asylum Eligibility
AGENCY: Executive Office for Immigration Review, Department of Justice;
U.S. Citizenship and Immigration Services, Department of Homeland
Security.
ACTION: Final rule.
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SUMMARY: On December 19, 2019, the Department of Justice (``DOJ'') and
the Department of Homeland Security (``DHS'') (collectively, ``the
Departments'') published a notice of proposed rulemaking (``NPRM'')
that would amend their respective regulations governing the bars to
asylum eligibility. The Departments also proposed to clarify the effect
of criminal convictions and to remove their respective regulations
governing the automatic reconsideration of discretionary denials of
asylum applications. This final rule (``final rule'' or ``rule'')
responds to comments received and adopts the provisions of the NPRM
with technical corrections to ensure clarity and internal consistency.
DATES: This rule is effective on November 20, 2020.
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
(``USCIS''), DHS, 20 Massachusetts Avenue NW, Washington, DC 20529-
2140; telephone (202) 272-8377 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Summary of the Proposed Rule
On December 19, 2019, the Departments published an NPRM that would
amend their respective regulations governing the bars to asylum
eligibility, clarify the effect of criminal convictions, and remove
their respective regulations governing the automatic reconsideration of
discretionary denials of asylum applications. Procedures for Asylum and
Bars to Asylum Eligibility, 84 FR 69640 (Dec. 19, 2019).
A. Authority and Legal Framework
The Departments published the proposed rule pursuant to their
respective authorities regarding the adjudication of asylum
applications. 84 FR at 69641-42, 69644-45.
Regarding the DOJ, the Attorney General, through himself and the
Executive Office for Immigration Review (``EOIR''), has authority over
immigration adjudications. See 6 U.S.C. 521; section 103(g) of the
Immigration and Nationality Act (``INA'' or ``the Act'') (8 U.S.C.
1103(g)). Immigration judges within DOJ adjudicate defensive asylum
applications filed during removal proceedings \1\ and affirmative
asylum applications referred to the immigration courts by USCIS within
DHS. INA 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), 1208.2. The
Board of Immigration Appeals (``BIA'' or ``the Board'') hears appeals
from immigration judges' decisions, including decisions related to the
relief of asylum. 8 CFR 1003.1.
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\1\ One exception is that asylum officers in DHS have initial
jurisdiction to adjudicate asylum applications filed by
unaccompanied alien children (``UAC'') in removal proceedings. INA
208(b)(3)(C) (8 U.S.C. 1158(b)(3)(C)); see also 6 U.S.C. 279(g)(2)
(UAC defined).
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The immigration laws further provide the Attorney General with
authority regarding immigration adjudications and determinations. For
example, the Attorney General's determination with respect to all
questions of law is ``controlling.'' INA 103(a)(1) (8 U.S.C.
1103(a)(1)). The Attorney General possesses a general authority to
``establish such regulations * * * as the Attorney General determines
to be necessary for carrying out'' his authorities under the INA. INA
103(g)(2) (8 U.S.C. 1103(g)(2)). In addition, the INA authorizes the
Attorney General to (1) ``by regulation establish additional
limitations and conditions, consistent with [INA 208 (8 U.S.C. 1158)],
under which an alien shall be ineligible for asylum under,'' INA
208(b)(1) (8 U.S.C. 1158(b)(1)); and (2) ``provide by regulation for *
* * conditions or limitations on the consideration of an application
for asylum not inconsistent with the Act.'' INA 208(b)(2)(C) and
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C) and (d)(5)(B)).
Regarding the Department of Homeland Security, the Homeland
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as
amended, transferred many functions related to the execution of Federal
immigration law to the newly created DHS. The HSA charges the Secretary
of Homeland Security (``the Secretary'') ``with the administration and
enforcement of [the INA] and all other laws relating to the immigration
and naturalization of aliens,'' INA 103(a)(1) (8 U.S.C. 1103(a)(1)),
and grants the Secretary the power to take all actions ``necessary for
carrying out'' the provisions of the immigration and nationality laws,
INA 103(a)(3) (8 U.S.C. 1103(a)(3)). The HSA also transferred to USCIS
responsibility for affirmative asylum applications, i.e., applications
for asylum made outside the removal context. See 6 U.S.C. 271(b)(3). If
an alien is not in removal proceedings, USCIS asylum officers determine
in the first instance whether an alien's asylum application should be
granted. See 8 CFR 208.2.
B. Provisions of the Proposed Rule
The NPRM proposed to amend 8 CFR 208.13 and 1208.13 by adding new
paragraphs (c)(6)-(9) and amending 8 CFR 208.16 and 1208.16 by removing
and reserving paragraphs (e) in each section.
1. Bars to Asylum Eligibility
Pursuant to the authorities outlined above, the Departments
proposed to revise 8 CFR 208.13 and 1208.13 by adding paragraphs (c)(6)
in each section to add the following bars on eligibility for asylum for
the following aliens:
Aliens who have been convicted of an offense arising under
INA 274(a)(1)(A) or (a)(2) or INA 276 (8 U.S.C. 1324(a)(1)(A) or (a)(2)
or 1326) (convictions related to alien harboring, alien smuggling, and
illegal reentry). See 8 CFR 208.13(c)(6)(i) and 1208.13(c)(6)(i)
(proposed); 84 FR at 69647-49.
Aliens who have been convicted of a Federal, State,
tribal, or local crime that the Attorney General or Secretary knows or
has reason to believe was committed in support, promotion, or
furtherance of the activity of a criminal street gang as that term is
defined under the law of the jurisdiction where the conviction occurred
or as in 18 U.S.C. 521(a). See 8 CFR 208.13(c)(6)(ii) and
1208.13(c)(6)(ii) (proposed); 84 FR at 69649-50.
Aliens who have been convicted of an offense for driving
while intoxicated or impaired as those terms are defined under the law
of the jurisdiction where
[[Page 67203]]
the conviction occurred (including a conviction for driving while under
the influence of or impaired by alcohol or drugs) without regard to
whether the conviction is classified as a misdemeanor or felony under
Federal, State, tribal, or local law, in which such impaired driving
was a cause of serious bodily injury or death of another person. See 8
CFR 208.13(c)(6)(iii) and 1208.13(c)(6)(iii) (proposed); 84 FR at
69650-51.
Aliens who have been convicted of a second or subsequent
offense for driving while intoxicated or impaired as those terms are
defined under the law of the jurisdiction where the conviction occurred
(including a conviction for driving while under the influence of or
impaired by alcohol or drugs) without regard to whether the conviction
is classified as a misdemeanor or felony under Federal, State, tribal,
or local law. See 8 CFR 208.13(c)(6)(iv)(A) and 1208.13(c)(6)(iv)(A)
(proposed); 84 FR at 69650-51.\2\
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\2\ When determining whether an alien's offense qualifies under
this provision, the NPRM further provided that the adjudicator would
not be required to find the initial conviction as a predicate
offense. 8 CFR 208.13(c)(6)(iv)(B), 1208.13(c)(6)(iv)(B) (proposed).
Further, the NPRM provided that the adjudicator would be permitted
to consider the underlying conduct of the crime and would not be
limited to those facts found by the criminal court or otherwise
contained in the record of conviction. 8 CFR 208.13(c)(6)(iv)(B),
1208.13(c)(6)(iv)(B) (proposed). Instead, the adjudicator would be
required only to make a factual determination that the alien was
previously convicted for driving while intoxicated or impaired as
those terms are defined under the law of the jurisdiction where the
convictions occurred. 8 CFR 208.13(c)(6)(iv)(B),
1208.13(c)(6)(iv)(B).
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Aliens who have been convicted of a crime that involves
conduct amounting to a crime of stalking; or a crime of child abuse,
child neglect, or child abandonment; or that involves conduct amounting
to a domestic assault or battery offense, including a misdemeanor crime
of domestic violence, as described in section 922(g)(9) of title 18, a
misdemeanor crime of domestic violence as described in section
921(a)(33) of title 18, a crime of domestic violence as described in
section 12291(a)(8) of title 34, or any crime based on conduct in which
the alien harassed, coerced, intimidated, voluntarily or recklessly
used (or threatened to use) force or violence against, or inflicted
physical injury or physical pain, however slight, upon a person, and
committed by (a) the person's current or former spouse, (b) an alien
with whom the person shares a child in common, (c) an alien who is
cohabitating with or who has cohabitated with the person as a spouse,
(d) an alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction, or (e) any other
alien against a person who is protected from that alien's acts under
the domestic or family violence laws of the United States or any State,
tribal government, or unit of local government. See 8 CFR
208.13(c)(6)(v)(A), 1208.13(c)(6)(v)(A) (proposed); 84 FR at 69651-53.
The NPRM also provided that an alien's conduct considered grounds for
deportability under section 237(a)(2)(E)(i) through (ii) of the Act (8
U.S.C. 1227(a)(2)(E)(i)-(ii)) would not disqualify him or her from
asylum under this provision if a determination was made that the alien
satisfies the criteria in section 237(a)(7)(A) of the Act (8 U.S.C.
1227(a)(7)(A)). See 8 CFR 208.13(c)(6)(v)(C), 1208.13(c)(6)(v)(C)
(proposed); 84 FR at 69651-53.
Aliens who have been convicted of any felony under
Federal, State, tribal, or local law. See 8 CFR 208.13(c)(6)(vi)(A),
1208.13(c)(6)(vi)(A) (proposed); 84 FR at 69645-47.
Aliens who have been convicted of any misdemeanor offense
under Federal, State, tribal, or local law that involves (1) possession
or use of an identification document, authentication feature, or false
identification document without lawful authority, unless the alien can
establish that the conviction resulted from circumstances showing that
the document was presented before boarding a common carrier, that the
document related to the alien's eligibility to enter the United States,
that the alien used the document to depart a country in which the alien
has claimed a fear of persecution, and that the alien claimed a fear of
persecution without delay upon presenting himself or herself to an
immigration officer upon arrival at a United States port of entry; (2)
the receipt of Federal public benefits, as defined in 8 U.S.C. 1611(c),
from a Federal entity, or the receipt of similar public benefits from a
State, tribal, or local entity, without lawful authority; or (3)
possession or trafficking of a controlled substance or controlled
substance paraphernalia, other than a single offense involving
possession for one's own use of 30 grams or less of marijuana. See 8
CFR 208.13(c)(6)(vi)(B), 1208.13(c)(6)(vi)(B) (proposed); 84 FR at
69653-54.
Aliens for whom there are serious reasons to believe have
engaged in acts of battery or extreme cruelty, as defined in 8 CFR
204.2(c)(1)(vi), upon a person and committed by the same list of aliens
as set forth above regarding domestic-violence convictions. See 8 CFR
208.13(c)(6)(vii)(A)-(E), 1208.13(c)(6)(vii)(A)-(E) (proposed); 84 FR
at 69651-53. The NPRM further provided that an alien's offense would
not disqualify him or her from asylum under this provision for crimes
or conduct considered grounds for deportability under section
237(a)(2)(E)(i) and (ii) of the Act if a determination was made that
the alien satisfies the criteria in section 237(a)(7)(A) of the Act (8
U.S.C. 1227(a)(7)(A)) (8 U.S.C. 1227(a)(2)(E)(i)-(ii)). See 8 CFR
208.13(c)(6)(vii)(F), 1208.13(c)(6)(vii)(F) (proposed); 84 FR at 69651-
53.
2. Additional Instruction and Definitions for Analyzing the New Bars to
Eligibility
The Departments proposed to revise 8 CFR 208.13 and 1208.13 by
adding paragraphs (c)(7) through (9), which would have provided
relevant definitions and other procedural instructions for the
implementation of the proposed bars to eligibility discussed above.
First, this proposed revision would have defined the terms
``felony'' (``any crime defined as a felony by the relevant
jurisdiction * * * of conviction, or any crime punishable by more than
one year of imprisonment'') and ``misdemeanor'' (``any crime defined as
a misdemeanor by the relevant jurisdiction * * * of conviction, or any
crime not punishable by more than one year of imprisonment''). 8 CFR
208.13(c)(7)(i)-(ii), 1208.13(c)(7)(i)-(ii) (proposed); 84 FR at 69646,
69653.
The proposed rule further would have provided instructions that
whether an activity would constitute a basis for removability is
irrelevant to determining whether the activity would make an alien
ineligible for asylum and that all criminal convictions referenced in
the proposed bars to eligibility would include inchoate offenses. 8 CFR
208.13(c)(7)(iii)-(iv), 1208.13(c)(7)(iii)-(iv) (proposed).
Regarding convictions that have been modified, vacated, clarified,
or otherwise altered, the proposed rule would have instructed that such
modifications, vacaturs, clarifications, or alterations do not have any
effect on the alien's eligibility for asylum unless the court issuing
the order had jurisdiction and authority to do so, and the court did
not do so for rehabilitative purposes or to alleviate possible
immigration-related consequences of the conviction. 8 CFR
208.13(c)(7)(v), 1208.13(c)(7)(v) (proposed); 84 FR at 69654-56. The
rule would have further provided that the modification, vacatur,
clarification, or other alteration is presumed to be for the purpose of
ameliorating the immigration
[[Page 67204]]
consequences of a conviction if it was entered subsequent to the
initiation of removal proceedings or if the alien moved for the order
more than one year following the original order of conviction or
sentencing. 8 CFR 208.13(c)(8), 1208.13(c)(8) (proposed); 84 FR at
69654-56. Finally, the proposed rule would have specifically allowed
the asylum officer or immigration judge to ``look beyond the face of
any order purporting to vacate a conviction, modify a sentence, or
clarify a sentence'' to determine what effect such order should be
given under proposed 8 CFR 208.13(c)(7)(v) and 1208.13(c)(7)(v). 8 CFR
208.13(c)(9),1208.13(c)(9) (proposed); 84 FR at 69654-56.
3. Reconsideration of Discretionary Denials
Lastly, the proposed rule would have removed and reserved 8 CFR
208.16(e) and 1208.16(e), which provide for the automatic review of a
discretionary denial of an alien's asylum application if the alien is
subsequently granted withholding of removal. 84 FR at 69656-57.
II. Public Comments on the Proposed Rule
A. Summary of Public Comments
The comment period for the NPRM closed on January 21, 2020, with
581 comments received.\3\ Individual commenters submitted 503 comments,
and 78 comments were submitted by organizations, including non-
government organizations, legal advocacy groups, non-profit
organizations, religious organizations, congressional committees, and
groups of members of Congress. Most individual commenters opposed the
NPRM. All organizations opposed the NPRM.
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\3\ The Departments reviewed all 581 comments submitted in
response to the rule; however, the Departments did not post 5 of the
comments to regulations.gov for public inspection. Of these
comments, three were duplicates of another comment written by the
same commenter, and two were written in Spanish. Accordingly, the
Departments posted 576 comments.
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B. Comments Expressing Support for the Proposed Rule
Comment: One commenter supported the final rule to ensure that
individuals who qualify for asylum are granted that status only when
merited in the exercise of discretion and to provide a uniform and fair
standard to prevent criminal aliens from ``gaining a foothold in the
United States.''
One commenter stated that the NPRM was an appropriate exercise of
discretionary authority. The commenter stated that asylum is an
extraordinary benefit that offers a path to lawful permanent residence
and United States citizenship and, thus, should be discretionary. The
commenter stated that asylees are protected from removal, authorized to
work in the United States, and may travel under certain circumstances,
and that asylees' spouses and children are eligible for derivative
status in the United States. The commenter stated that the United
States asylum system is generous, asserting that, in fiscal year 2018,
38,687 individuals were granted asylum, including 25,439 affirmative
grants and 13,248 defensive grants. The commenter stated that this was
the highest number of grants since fiscal year 2002.
The commenter cited the BIA: ``The ultimate consideration when
balancing factors in the exercise of discretion is to determine whether
a grant of relief, or in this case protection, appears to be in the
best interest of the United States.'' Matter of D-A-C-, 27 I&N Dec.
575, 578 (BIA 2019) (citing Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA
1998) and Matter of Mendez, 21 I&N Dec. 296, 305 (BIA 1996)). The
commenter stated that criminal aliens, as described in the NPRM, should
not be granted the benefit of asylum because their admission would not
be in the best interest of the United States.
The commenter emphasized that the NPRM would not bar individuals
from all forms of fear-based protection and that individuals who were
barred from asylum under the NPRM could still apply for withholding of
removal under the INA 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''
and ``CAT regulations'').\4\ The commenter opined that the NPRM would
improve the integrity of the asylum system.
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\4\ Adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr.
18, 1988) (implemented in the immigration context in principal part
at 8 CFR 208.16(c) through 208.18 and 8 CFR 1208.16(c) through
1208.18). See Foreign Affairs Reform and Restructuring Act of 1998
(``FARRA''), Public Law 105-277, div. G, sec. 2242, 112 Stat. 2681,
2631-822 (8 U.S.C. 1231 note).
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The commenter stated that the crimes and conduct listed in the NPRM
should constitute a ``conclusive determination that an applicant does
not merit asylum in the exercise of discretion.'' The commenter stated
that the NPRM would ensure fair and uniform application of the
immigration laws because aliens who have been convicted of similar
crimes would not receive different outcomes depending on their
adjudicator.
The commenter stated that the NPRM was authorized by the Act, which
the commenter stated provides for regulations establishing additional
conditions or limitations on asylum. The commenter stated that the NPRM
was consistent with existing limitations on asylum eligibility in the
statute because several statutory provisions exclude individuals from
asylum eligibility on the basis of criminal conduct or other conduct
indicating that the applicant does not merit asylum. See INA
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (particularly serious
crime); INA 208(b)(2)(A)(iii) (8 U.S.C. 1158(b)(2)(A)(iii)) (serious
nonpolitical crime outside the United States); INA 208(b)(2)(B)(i) (8
U.S.C. 1158(b)(2)(B)(i)) (conviction for aggravated felony); INA
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)) (offenses designated as
particularly serious crimes or serious nonpolitical crimes by
regulation); INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) (alien
engaged in persecution of another on account of a protected ground);
INA 208(b)(2)(A)(iv) (8 U.S.C. 1158(b)(2)(A)(iv)) (reasonable grounds
to regard alien as a danger to the security of the United States); INA
208(b)(2)(A)(v) (8 U.S.C. 1158(b)(2)(A)(v)) (alien presents national
security concerns or engaged in terrorist activity).
The commenter supported the NPRM's proposed limitation on asylum
eligibility for those who have been convicted of a felony, stating that
felonies are categorized as such because they present more serious
criminal conduct, which has a higher social cost. The commenter
asserted that a felony conviction should be such a heavily weighted
negative factor that it should conclusively establish that an alien
does not merit asylum. The commenter supported defining a crime by the
maximum possible sentence, as opposed to the actual sentence imposed,
because of the variability of sentences that can be imposed on
individuals who commit the same crime yet appear before different
judges or are charged in different jurisdictions. The commenter
asserted that immigration consequences should not vary based on the
jurisdiction or a judge's ``individual personality'' and instead should
be standardized in the interest of fairness, uniformity, and
efficiency.
Commenters also supported the NPRM's proposed limitation on
eligibility for individuals convicted of alien harboring in violation
of section 274(a)(1)(A) of the Act (8 U.S.C. 1324(a)(1)(A)).
Specifically, the
[[Page 67205]]
commenters stated that smuggling involves a business where people are
routinely treated not as human beings, but as chattel. The commenters
stated that individuals who participate in smuggling, or who place
others into the hands of smugglers, should not be eligible for asylum
because the conduct required for such a conviction demonstrates
contempt for U.S. immigration law and a disregard for the value of
human life. Commenters similarly supported the NPRM's proposed
limitation on eligibility for asylum for aliens who have been convicted
of illegal reentry in violation of section 276 of the Act (8 U.S.C.
1326). Commenters stated that such individuals have demonstrated
contempt for U.S immigration law and should not be granted asylum.
Commenters stated that a conviction under section 276 of the Act (8
U.S.C. 1326) requires that an alien repeatedly violated the immigration
laws because such a conviction requires that the alien illegally
reentered after a prior removal and intentionally chose not to present
himself or herself at a port of entry. The commenters stated that
whether or not the final rule includes the felony bar to asylum, it
should incorporate a mandatory bar for those convicted of illegal
reentry.
Commenters also expressed support for the NPRM's proposed
limitation on asylum eligibility for individuals who have committed
criminal acts on behalf of or in furtherance of a criminal street gang.
The commenters stated that such activity is an indicator of ongoing
danger to the community. The commenters noted that, although widespread
criminal activity is not a sufficient legal basis to receive asylum
protection, adjudicators routinely hear testimony about the harm
suffered by people subjected to extortion threats, murders,
kidnappings, and sexual assaults by organized criminal groups. The
commenters stated that the United States immigration system should not
award a discretionary benefit to those who would destabilize
communities at home and abroad through violence.
Commenters supported the NPRM's approach authorizing adjudicators
to determine--on the basis of sufficient evidence--whether a particular
criminal act was committed ``in support, promotion, or furtherance of a
criminal street gang.'' Specifically, the commenters stated that the
range of crimes committed by street gangs is broad and that not all
gang members are convicted of a gang participation offense even when
they commit a crime on behalf of the gang. The commenters noted that
such a determination would not be based on ``mere suspicion'' but would
only occur where the adjudicator knows or has reason to believe that
the crime was committed in furtherance of gang activity on the basis of
competent evidence. The commenters stated that ``[g]ang violence is a
scourge on our communities, and those who further the goals of criminal
street gangs should not be put on a path to citizenship.''
Commenters expressed support for the NPRM's proposed limitation on
asylum eligibility where an individual has been convicted of multiple
driving-under-the-influence (``DUI'') offenses or a single offense
resulting in death or serious bodily injury. The commenters stated that
drunk and impaired driving is a dangerous activity that kills more than
10,000 people in the United States each year and injures many more. The
commenters stated that individuals with recidivist DUI records, or who
have already caused injury or death, should not be rewarded with
asylum. The commenters expressed support for the NPRM's proposed
limitation on asylum eligibility for individuals who have been
convicted of certain misdemeanors. The commenters encouraged the
Departments to consider including misdemeanor offenses involving sexual
abuse or offenses reflecting a danger to children, asserting that such
offenses are indicative of an ongoing danger to the community.
The commenters expressed support for the NPRM's approach to
treating vacated, expunged, or modified convictions and sentences. The
commenter stated that the approach is consistent with the Attorney
General's decision in Matter of Thomas and Thompson, 27 I&N Dec. 674
(A.G. 2019). The commenters also stated that such an approach would be
appropriate in the interests of uniform application of the law across
jurisdictions by helping to ensure that aliens convicted of the same or
similar conduct receive the same consequence with respect to asylum
eligibility.
The commenters expressed support for the NPRM's proposed removal of
8 CFR 208.16(e) and 1208.16(e), stating that these provisions are
unnecessary. Specifically, the commenters stated that the current
regulations require an adjudicator who denies an asylum application in
the exercise of discretion to revisit and reconsider that denial by
weighing factors that would already have been considered in the
original discretionary analysis. The commenters stated that there
should not be a presumption that the adjudicator did not properly weigh
discretionary factors in the first instance. The commenters stated
that, as noted by the NPRM, such a requirement is inefficient,
requiring additional adjudicatory resources to re-evaluate a decision
that was only just decided by the same adjudicator. The commenters also
stated that an alien already has opportunities to seek review of that
discretionary decision through motions or an appeal.
Other commenters expressed general support for the NPRM. Some
commenters stated that such a rule would make America safer. One
commenter stated that further restrictions on asylum were necessary
because individuals who have no basis to remain in the United States
``routinely ask to use political asylum as a last ditch effort to
remain.'' At least one commenter stated that the NPRM would not
adversely affect ``innocent asylum seeker[s] truly escaping political
persecution.'' Other commenters stated that all applications for relief
should require at least a minimum of good character and behavior. One
commenter stated that the NPRM ``is a direct result of state and local
governments working to nullify undocumented criminal activity by
dropping charges, expunging records or pardoning crimes, including
serious crimes like armed robbery * * * sex assault, domestic abuse,
wire fraud, identity theft etc.''
One commenter expressed support for the NPRM's proposed limitation
on asylum eligibility for individuals who are convicted of offenses
related to controlled substances, stating that the United States must
bar those who engage in drug trafficking into the United States.
Another commenter expressed support for the proposed limitations on
asylum eligibility for individuals who are convicted of domestic
violence offenses or who engage in identity theft, stating that such
individuals should not have the opportunity to be lawfully present in
the United States.
Response: The Departments note the commenters' support for the
rule. The Departments have taken the commenters' recommendations under
advisement.
C. Comments Expressing Opposition to the Proposed Rule
1. General Opposition
Comment: Many commenters expressed general opposition to the NPRM.
Some provided no reasoning, simply stating, ``I oppose this proposed
rule'' with varying degrees of severity. Many commenters also asked the
Departments to withdraw the NPRM. Others, as explained in the following
sections, provided specific points of
[[Page 67206]]
opposition or their reasoning underlying their opposition.
Response: The Departments are unable to provide a detailed response
to comments that express only general opposition without providing
reasoning for their opposition. The following sections of this final
rule provide the Departments' responses to comments that offered
specific points of opposition or reasoning underlying their opposition.
2. Violation of Law
a. Violation of Domestic Law
Commenters asserted that the proposed rule violated United States
law in three main ways: First, it violated law regarding particularly
serious crimes; second, it improperly disposed of the categorical
approach to determine immigration consequences of criminal offenses;
and third, it violated law regarding the validity of convictions for
immigration purposes. Overall, commenters were concerned that the
NPRM's provisions contradicting case law would result in the ``wrongful
exclusion'' of immigrants from asylum eligibility.
i. Law Regarding ``Particularly Serious Crime'' Bar
Comment: Commenters opposed the NPRM, stating that it violates
domestic law and contravenes existing case law from the BIA, the
circuit courts of appeals, and the Supreme Court of the United States
regarding the particularly serious crime bar to asylum for multiple
reasons. See INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)). In
general, commenters alleged that the NPRM was untethered to the
approach set out by Congress regarding particularly serious crimes and
that if Congress had sought to sweepingly bar individuals from asylum
eligibility based on their conduct or felony convictions, as outlined
in the NPRM, it would have done so in the Act. Commenters stated that
adding seven new categories of barred conduct rendered the language of
section 208(b)(2) of the Act (8 U.S.C. 1158(b)(2)) essentially
meaningless and drained the term ``particularly serious crime'' of any
sensible meaning because the Departments were effectively considering
all offenses, regardless of seriousness, as falling under the
particularly serious crime bar to asylum. One organization asserted
that this violated the Supreme Court's requirements for statutory
interpretation, citing Corley v. United States, 556 U.S. 303, 314
(2009) (``[O]ne of the most basic interpretive canons[ ] [is] that a
statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant.'' (alterations and quotation marks omitted)).
At the same time, commenters also asserted that the additional
crimes to be considered particularly serious by the proposed rule have
been repeatedly recognized as not particularly serious. For example,
commenters cited Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987), and
noted the BIA's conclusion that, ``in light of the unusually harsh
consequences which may befall a [noncitizen] who has established a
well-founded fear of persecution; the danger of persecution should
generally outweigh all but the most egregious of adverse factors.''
Paraphrasing Delgado v. Holder, 648 F.3d 1095, 1110 (9th Cir. 2010)
(Reinhardt, J., concurring in part and concurring in the judgment),
commenters stated that, outside of the aggravated felony context, ``it
has generally been well understood by the Board of Immigration Appeals
and the Courts of Appeals that low-level, `run-of-the-mill' offenses do
not constitute particularly serious crimes.''
Commenters asserted that low-level offenses like misdemeanor DUI
with no injury or simple possession of a controlled substance cannot
constitute a particularly serious crime. In support of this
proposition, commenters cited Mellouli v. Lynch, 575 U.S. 798 (2015)
(possession of drug paraphernalia was not a controlled substances
offense); Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (subsequent
marijuana possession offense is not an aggravated felony); and Leocal
v. Ashcroft, 543 U.S. 1 (2004) (conviction for DUI was not an
aggravated felony crime of violence). Commenters asserted that if the
Departments wished to abrogate the Supreme Court's interpretation of
the statute, they should do so by passing new legislation, not by
proposing what the commenters consider to be unlawful rules.
Moreover, commenters asserted that the ``essential key to
determining whether a crime is particularly serious * * * is whether
the nature of the crime is one which indicates that the alien poses a
danger to the community.'' Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014)
(quotation marks omitted). Commenters argued that despite this
analytical requirement, the proposed rule arbitrarily re-categorizes
many offenses as particularly serious without consideration of whether
the nature of the crime indicates that the alien poses a danger to the
community. Commenters expressed additional concern that this
categorization removes all discretion from the adjudicator to determine
whether an individual's circumstances merit such a harsh penalty.
Commenters further asserted that, because Congress made commission
of a ``particularly serious crime'' a bar to asylum but did not make
commission of other categories of crimes such a bar, Congress intended
to preclude that result. Commenters alleged that the NPRM violated the
canon of construction articulated in United States v. Vonn, 535 U.S.
55, 65 (2002), expressio unius est exclusio alterius, which means that
``expressing one item of a commonly associated group or series excludes
another left unmentioned,'' because it attempted to create additional
categories of crime bars to asylum eligibility in a manner inconsistent
with the statute and congressional intent. Commenters analogized these
NPRM provisions to another rule that had categorically barred
``arriving aliens'' from applying for adjustment of status in removal
proceedings. See 8 CFR 245.1(c)(8) (1997). The Federal courts of
appeals were split over whether that now-rescinded rule circumvented
the Act and congressional intent because adjustment of status was
ordinarily a discretionary determination.\5\
---------------------------------------------------------------------------
\5\ Compare Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1321-22
(11th Cir. 2006) (holding that the regulation was unlawful); Bona v.
Gonzales, 425 F.3d 663, 668-71 (9th Cir. 2005) (same); Zheng v.
Gonzales, 422 F.3d 98, 116-20 (3d Cir. 2005) (same), and Succar v.
Ashcroft, 394 F.3d 8, 29 (1st Cir. 2005) (same), with Akhtar v.
Gonzales, 450 F.3d 587, 593-95 (5th Cir. 2006) (upholding validity
of the regulation), rehearing en banc granted and remanded on other
grounds, 461 F.3d 584 (2006) (en banc), and Mouelle v. Gonzales, 416
F.3d 923, 928-30 (8th Cir. 2005) (same), vacated on other grounds,
126 S. Ct. 2964 (2006).
---------------------------------------------------------------------------
Commenters further alleged that the NPRM unlawfully categorically
exempted a wide range of offenses from a positive discretionary
adjudication of asylum. Commenters acknowledged that the Attorney
General can provide for ``additional limitations and conditions'' on
asylum applications consistent with the asylum statute by designating
offenses as per se particularly serious, see INA 208(b)(2)(B)(ii) (8
U.S.C. 1158(b)(2)(B)(ii)), but commenters emphasized that crimes that
are not particularly serious are still subject to a discretionary
determination. Commenters stated that Congress did not intend to
authorize the Attorney General to categorically bar ``large swaths of
asylum seekers from protection.'' Commenters alleged that the
Departments purposefully wrote the NPRM in this way (designating the
bars as both particularly serious crimes and categorical exceptions to
positive
[[Page 67207]]
discretionary adjudication) to ``insulate the Proposed Rules from
review.''
Response: The Departments disagree with comments asserting that the
rule violates domestic law. Commenters asserted that Congress did not
intend for the Attorney General to categorically bar ``large swaths of
asylum seekers from protection.'' However, Congress, in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(``IIRIRA''), vested the Attorney General with broad authority to
establish conditions or limitations on asylum. Public Law 104-208, div.
C, 110 Stat. 3009, 3009-546.
At that time, Congress created three categories of aliens who are
barred from applying for asylum and adopted six other mandatory bars to
asylum eligibility. IIRIRA, sec. 604(a), 110 Stat. at 3009-690 through
3009-694 (codified at INA 208(a)(2)(A)-(C), (b)(2)(A)(i)-(vi) (8 U.S.C.
1158(a)(2)(A)-(C), (b)(2)(A)(i)-(vi))). Congress further expressly
authorized the Attorney General to expand upon two bars to asylum
eligibility--the bars for ``particularly serious crimes'' and ``serious
nonpolitical crimes.'' INA 208(b)(2)(B)(ii) (8 U.S.C.
1158(b)(2)(B)(ii)). Congress also vested the Attorney General with the
ability to establish by regulation ``any other conditions or
limitations on the consideration of an application for asylum,'' so
long as those limitations are ``not inconsistent with this chapter.''
INA 208(d)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
Significantly, ``[t]his delegation of authority means that Congress
was prepared to accept administrative dilution of the asylum guarantee
in Sec. 1158(a)(1),'' as ``the statute clearly empowers'' the Attorney
General and the Secretary to ``adopt[ ] further limitations'' on
eligibility to apply for or receive asylum. R-S-C v. Sessions, 869 F.3d
1176, 1187 & n.9 (10th Cir. 2017). In authorizing ``additional
limitations and conditions'' by regulation, the statute gives the
Attorney General and the Secretary broad authority in determining what
the ``limitations and conditions'' should be. The Act instructs only
that additional limitations on eligibility are to be established ``by
regulation,'' and must be ``consistent with'' the rest of section 208
of the Act (8 U.S.C. 1158). INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C));
see also INA 208(d)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
Moreover, a long-held principle of administrative law is that an
agency, within its congressionally delegated policymaking
responsibilities, may ``properly rely upon the incumbent
administration's view of wise policy to inform its judgments.''
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
865 (1984). Accordingly, an agency may make policy choices that
Congress either inadvertently or intentionally left to be resolved by
the agency charged with administration of the statute, given the
current realities faced by the agency. See id. at 865-66. Through the
publication of the NPRM, the Departments have properly exercised this
congressionally delegated authority. Such policymaking is well within
the confines of permissible agency action. Additionally, despite
commenters' assertions that the Departments should pursue these changes
through legislative channels, the Departments, as part of the Executive
Branch, do not pursue legislative changes but instead rely on
regulatory authority to interpret and enforce legislation as enacted by
Congress.
As explained in the NPRM, Congress granted the Attorney General and
the Secretary broad authority to determine additional ``limitations and
conditions'' on asylum. For example, the Attorney General and the
Secretary have authority to impose procedural requirements for asylum
seekers and to designate by regulation additional crimes that could be
considered particularly serious crimes or serious nonpolitical crimes.
See INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)); see also INA
208(2)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
Based on the comments received, the Departments realize that the
preamble to the NPRM resulted in confusion regarding which authority
the Departments relied on in promulgating this rule. Specifically,
commenters raised concerns regarding the Departments' reliance on
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) in
support of some of the new bars to asylum eligibility. In response to
these concerns and confusion, the Departments emphasize that, as in the
proposed rule, the regulatory text itself does not designate any
offenses covered in 8 CFR 208.13(c)(6) or 1208.13(c)(6) as specific
particularly serious crimes.\6\ Instead, this rule, like the proposed
rule, sets out seven new ``additional limitations,'' consistent with
the Departments' authority at INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C))
to establish ``additional limitations and conditions'' on asylum
eligibility. See 8 CFR 208.13(c)(6), 1208.13(c)(6).
---------------------------------------------------------------------------
\6\ The Departments do not intend, however, to imply that an
immigration adjudicator could not or should not find these offenses
to be particularly serious crimes in the context of adjudicating
individual asylum applications on a case-by-case basis.
---------------------------------------------------------------------------
This reliance on the authority at section 208(b)(2)(C) of the Act
(8 U.S.C. 1158(b)(2)(C)) is consistent with the proposed rule. There,
although the Departments cited the authority at section
208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to designate
offenses as particularly serious crimes, the Departments also cited the
authority at section 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) in support
of each category of bars included in the rule. See generally 84 FR at
69645-54. The references throughout the preamble in the NPRM to the
Attorney General's and the Secretary's authorities to designate
additional particularly serious crimes accordingly highlighted one of
two alternative bases for the inclusion of most of the new bars to
asylum eligibility and sought to elucidate the serious nature of these
crimes and the Departments' reasoning for including these offenses in
the new provisions. In other words, although the Departments are not
specifically designating any categories of offenses as ``particularly
serious crimes,'' the authority of the Attorney General and the
Secretary to deny eligibility to aliens convicted of such offenses
helps demonstrate that the new bars are ``consistent with'' the INA
because the offenses to which the new bars apply--similar to
``particularly serious crimes''--indicate that the aliens who commit
them may be dangerous to the community of the United States or
otherwise may not merit eligibility for asylum. As a result, the
Departments need not address in detail commenters' concerns about
whether discrete categories of offenses should constitute
``particularly serious crimes'' because (1) the new rule does not
actually designate any specific offense as such crimes; and (2) section
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)), as already discussed
and as recognized by the Departments, independently authorizes the
Attorney General and the Secretary to establish additional limitations
and conditions on asylum eligibility.
Commenters asserted that Congress intended for the only criminal
bars to asylum to be those contemplated by the particularly serious
crime and serious nonpolitical crime bars. The Departments, however,
disagree. Although the INA explicitly permits the Attorney General and
the Secretary to designate additional crimes as particularly serious
crimes or serious nonpolitical crimes, this does not mean that any time
the Attorney General and the Secretary decide to limit eligibility for
asylum based on criminal activity,
[[Page 67208]]
the limit must be based on either a particularly serious crime or a
serious nonpolitical crime. Rather, the Attorney General and the
Secretary may choose to designate certain criminal activity as a
limitation or condition on asylum eligibility separate and apart from
the scope of crimes considered particularly serious. These additional
limitations must simply be established by regulation and must be
consistent with the rest of section 208 of the Act (8 U.S.C. 1158).
Nothing in the Act suggests that Congress intended for the
particularly serious crime bar at section 208(b)(2)(A)(ii) of the Act
(8 U.S.C. 1158(b)(2)(A)(ii)) or the serious nonpolitical crime bar at
section 208(b)(2)(A)(iii) of the Act (8 U.S.C. 1158(b)(2)(A)(iii)) to
be the sole bars to asylum based on criminal activity. The Departments
disagree with comments suggesting that existing exceptions to asylum
eligibility occupy the entire field of existing exceptions. The
Attorney General and the Secretary have the authority to impose
additional limitations on asylum eligibility that are otherwise
consistent with the limitations contained section 208(b)(2) of the Act
(8 U.S.C. 1158(b)(2)). Those existing limitations include limitations
on eligibility because of criminal conduct. See, e.g., INA
208(b)(2)(A)(ii), (iii) (particularly serious crime and serious
nonpolitical crime)) (8 U.S.C. 1158(b)(2)(A)(ii), (iii)). Deciding to
impose additional limitations on asylum eligibility that are also based
on criminal conduct, as the Departments are doing in this rulemaking,
is accordingly consistent with the statute. See INA 208(b)(2)(C) (8
U.S.C. 1158(b)(2)(C)).
Of note, in Trump v. Hawaii, the Supreme Court determined that the
INA's provisions regarding the entry of aliens ``did not implicitly
foreclose the Executive from imposing tighter restrictions,'' even in
circumstances in which those restrictions concerned a subject
``similar'' to the one that Congress ``already touch[ed] on in the
INA.'' 138 S. Ct. 2392, 2411-12 (2018). Thus, by the same reasoning,
Congress's statutory command that certain aliens are ineligible for
asylum based on a conviction for a particularly serious crime or
serious nonpolitical crime does not deprive the Attorney General and
Secretary of authority, by regulation, to deny asylum eligibility for
certain other aliens whose circumstances may--in a general sense--be
``similar.''
Commenters' references to the proposed rule revising 8 CFR
245.1(c)(8) (1997) (limitations on eligibility for adjustment of
status) and subsequent case law striking down that proposed rule are
inapposite. The First Circuit explained that the adjustment of status
statute grants the Attorney General discretion to grant applications,
but that this authority does not extend to grant the Attorney General
authority to define eligibility for that relief. Succar, 394 F.3d at
10. However, unlike the adjustment of status statute, INA 245(a) (8
U.S.C. 1255(a)), the asylum statute explicitly grants the Attorney
General authority to define additional limitations on eligibility for
relief that are ``consistent with this section.'' \7\ INA 208(b)(2)(C)
(8 U.S.C. 1158(b)(2)(C)). This express grant of authority contradicts
any implied limitation on the Attorney General's authority that might
otherwise be inferred from Congress's delineation of certain statutory
bars.
---------------------------------------------------------------------------
\7\ Moreover, at least two Federal courts of appeals rejected
the reasoning in Succar. See supra note 5; see also Lopez v. Davis,
531 U.S. 230, 243-44 (2001) (``We also reject [the] argument * * *
that the agency must not make categorical exclusions, but may rely
only on case-by-case assessments. Even if a statutory scheme
requires individualized determinations, which this scheme does not,
the decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority. The approach pressed
by [the petitioner]--case-by-case decisionmaking in thousands of
cases each year--could invite favoritism, disunity, and
inconsistency. The [agency] is not required continually to revisit
issues that may be established fairly and efficiently in a single
rulemaking proceeding.'' (citations, footnote, and quotation marks
omitted)); Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970)
(``We are unable to understand why there should be any general
principle forbidding an administrator, vested with discretionary
power, to determine by appropriate rulemaking that he will not use
it in favor of a particular class on a case-by-case basis * * *
.'').
---------------------------------------------------------------------------
ii. Law Regarding the Categorical Approach
Comment: Commenters asserted that the proposed rule violated the
Supreme Court's longstanding categorical approach. Commenters stated
that ``federal courts have repeatedly embraced the `categorical
approach' to determine the immigration consequence(s) of a criminal
offense, wherein the immigration adjudicator relies on the statute of
conviction as adjudicated by the criminal court system, without
relitigating the nature or circumstances of the offense in immigration
court.'' Additionally, commenters noted that the Supreme Court has
``long deemed undesirable'' a ``post hoc investigation into the facts
of the predicate offenses.'' Moncrieffe v. Holder, 569 U.S. 184, 200
(2013). Commenters argued that the proposed rule directly contravenes
this directive to avoid post hoc investigations.
Commenters emphasized that the categorical approach promotes
fairness and due process, as well as judicial and administrative
efficiency by avoiding ``pseudo-criminal trials.'' Citing Moncrieffe,
commenters noted concern that if an immigration adjudicator were
required to determine the nature and amount of remuneration involved
in, for example, a marijuana-related conviction, the ``overburdened
immigration courts'' would end up weighing evidence ``from, for
example, the friend of a noncitizen'' or the ``local police officer who
recalls to the contrary.'' Id. at 201. Commenters noted that this would
result in a disparity of outcomes based on the presiding immigration
judge and would further burden the immigration court system. Moreover,
commenters noted that the Supreme Court has repeatedly applied the
categorical approach and found that its virtues outweigh its
shortcomings. Citing Mathis v. United States, 136 S. Ct. 2243, 2252-53
(2016), commenters noted that the Supreme Court articulated basic
reasons for adhering to the elements-only inquiry of the categorical
approach, including ``serious Sixth Amendment concerns'' and
``unfairness to defendants'' created by alternative approaches.
Commenters asserted that the Departments' concern regarding the
unpredictable results of the categorical approach is misleading because
immigration adjudicators may already utilize a facts-based analysis to
determine whether an offense is a ``particularly serious crime'' that
would bar asylum. Commenters further alleged that the Departments
recognized that this was a red herring by noting that the BIA has
rectified some anomalies by determining that certain crimes, although
not aggravated felonies, nonetheless constitute particularly serious
crimes. See 84 FR at 69646.
Commenters further noted that, even if an offense does not rise to
the level of a particularly serious crime, immigration adjudicators may
deny asylum as a matter of discretion. In addition, commenters averred
that for gang-related and domestic violence offenses, the proposed rule
undermined criminal judgments and violated due process because the
proposed rule disregarded the established framework for determining
whether a conviction is an aggravated felony. Rather than looking to
the elements of the offense, as currently required by the categorical
approach, commenters noted that the proposed rule required adjudicators
to consider ``gang-related'' or ``domestic violence'' conduct that may
not have been one of the required elements for a
[[Page 67209]]
conviction and therefore not objected to by the asylum applicant or his
or her attorney during the criminal proceeding.
Response: The Departments first note that the traditional elements-
to-elements categorical approach extolled by the commenters and as set
out in Mathis by the Supreme Court is an interpretive tool frequently
applied by the courts to determine the immigration-related or penal
consequences of criminal convictions. Cf. Mathis, 136 S. Ct. at 2248
(``To determine whether a prior conviction is for generic burglary (or
other listed crime) courts apply what is known as the categorical
approach * * * .''). However, this traditional categorical approach is
not the only analytical tool blessed by the Supreme Court, and the
exact analysis depends on the language of the statute at issue. For
example, in Nijhawan v. Holder, 557 U.S. 29, 38 (2009), the Court held
that the aggravated felony statute at section 101(a)(43) of the Act (8
U.S.C. 1101(a)(43)) ``contains some language that refers to generic
crimes and some language that almost certainly refers to the specific
circumstances in which a crime was committed.'' Based on the language
of section 101(a)(43)(M)(i) of the Act (8 U.S.C. 1101(a)(43)(M)(i)),
the Supreme Court held that the INA required a ``circumstance-
specific'' analysis to determine whether an aggravated felony
conviction for a fraud or deceit offense involved $10,000 or more under
INA 101(a)(43)(M)(i) (8 U.S.C. 1101(a)(43)(M)(i)). Id. at 40. And in
Mathis itself, the Supreme Court observed that the categorical approach
is not the only permissible approach: Again relying on the language as
written in a statute by Congress, the Supreme Court explained that
``Congress well knows how to instruct sentencing judges to look into
the facts of prior crimes: In other statutes, using different language,
it has done just that.'' Mathis, 136 S. Ct. at 2252 (noting the
determination in Nijhawan that a circumstance-specific approach applies
when called for by Congress).
Nevertheless, the Departments did not purport to end the use of the
traditional categorical approach for determining asylum eligibility
through the proposed rule. Instead, the Departments explained that the
use of the categorical approach has created inconsistent adjudications
and created inefficiencies through the required complexities of the
analysis in immigration adjudications. See 84 FR at 69646-47. The
Departments' concerns with the categorical approach are in line with
those of an increasing number of Federal judges and others who are
required to work within its confines. See, e.g., Lopez-Aguilar v. Barr,
948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring) (``I write
separately to add my voice to the substantial chorus of federal judges
pleading for the Supreme Court or Congress to rescue us from the morass
of the categorical approach. * * * The categorical approach requires us
to perform absurd legal gymnastics, and it produces absurd results.'');
see also Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019)
(Thapar, J., concurring) (``[I]n the categorical-approach world, we
cannot call rape what it is. * * * [I]t is time for Congress to revisit
the categorical approach so we do not have to live in a fictional world
where we call a violent rape non-violent.'').
As a result, the Departments proposed, for example, that an alien
who has been convicted of ``[a]ny felony under Federal, State, tribal,
or local law'' would be ineligible for asylum. See 8 CFR
208.13(c)(6)(vi)(A), 1208.13(c)(6)(vi)(A) (proposed). This provision
would not require an adjudicator to conduct a categorical analysis and
compare the elements of the alien's statute of conviction with a
generic offense. As explained in the NPRM, the Departments believe this
will create a more streamlined and predictable approach that will
increase efficiency in immigration adjudications. 84 FR at 69647. It
will also increase predictability because it will be clear and
straightforward which offenses will bar an individual from asylum.
The Attorney General and the Secretary have the authority to place
additional limitations on eligibility for asylum, provided that they
are consistent with the rest of section 208 of the Act (8 U.S.C. 1158).
INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). There is no obligation that
any criminal-based limitation implemented pursuant to this authority
must correspond with a particular generic offense to which an
adjudicator would compare the elements of the alien's offense using the
categorical approach, particularly when not every criminal provision
implemented by Congress itself requires such an analysis. See Nijhawan,
557 U.S. at 36; see also United States v. Keene, 955 F.3d 391, 393 (4th
Cir. 2020) (holding that Congress did not intend for the violent crimes
in aid of racketeering activity statute (18 U.S.C. 1959) to require a
categorical analysis because ``the statutory language * * * requires
only that a defendant's conduct, presently before the court, constitute
one of the enumerated federal offenses as well as the charged state
crime'' (emphasis in original)). Additionally, prior case law
interpreting and applying the categorical approach to determine whether
a crime is particularly serious does not apply where, like here, the
Departments are designating additional limitations on eligibility for
asylum under the authority at section 208(b)(2)(C) of the Act (8 U.S.C.
1158(b)(2)(C)).\8\
---------------------------------------------------------------------------
\8\ The proposed rule preamble cited both the authority at
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to
designate offenses as particularly serious crimes and the authority
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to
establish additional limitations on asylum eligibility in support of
the inclusion of the new categories of bars in the proposed rule.
See 84 FR at 69645-54. The regulatory text, however, does not
actually designate any additional offenses as ``particularly serious
crimes.'' The text instead aligns with section 208(b)(2)(C) by
setting out ``[a]dditional limitations on asylum eligibility.'' See
id. at 65659. Section 208(b)(2)(B)(ii) remains relevant to the
current rule in that the new bars are ``consistent with'' the INA
partly because they deny eligibility as a result of crimes or
conduct that share certain characteristics with ``particularly
serious crimes,'' but the Departments clarify that they are
promulgating this rule under section 208(b)(2)(C). Further
discussion of the interaction of the rule with the ``particularly
serious crime'' bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------
Finally, the Departments expect immigration adjudicators to
determine whether an alien is barred from asylum eligibility under the
other provisions of the proposed rule due to the alien's conviction or
conduct in keeping with case law. For example, in order to determine
whether an alien's misdemeanor conviction is a conviction for an
offense ``involving * * * the possession or trafficking of a controlled
substance or controlled substance paraphernalia,'' the adjudicator
would be required to review the specific elements of the underlying
offense as required by the categorical approach. On the other hand, the
inquiry into whether conduct is related to street-gang activity or
domestic violence as promulgated by the rule is similar to statutory
provisions that already require an inquiry into conduct-based
allegations that may bar asylum but that do not require a categorical
approach analysis. See INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i))
(bar to asylum based on persecution of others); INA 240A(b)(2)(A) (8
U.S.C. 1229b(b)(2)(A)) (immigration benefits for aliens who are
battered or subjected to extreme cruelty).
iii. Law Regarding the Validity of Convictions
Comment: Commenters also asserted that the proposed rule's
establishment of criteria for determining whether a conviction or
sentence is valid for immigration purposes exceeded the Act's statutory
grant of authority, violated case law, and violated the Constitution.
Broadly speaking,
[[Page 67210]]
commenters asserted that the NPRM is contrary to the intent of Congress
because it attempts to ``rewrite immigration law.'' First, commenters
asserted that the proposed rule violated the full faith and credit owed
to State court decisions. Second, commenters asserted that the
Departments misread and misinterpreted applicable case law in
justifying the presumption against the validity of post-conviction
relief. Third, commenters expressed concern with the rebuttable
presumption against the validity of post-conviction relief in certain
circumstances created by the proposed rule.
Commenters expressed opposition to the NPRM's rebuttable
presumption that an order vacating a conviction or modifying,
clarifying, or otherwise altering a sentence is for the purpose of
ameliorating the conviction's immigration consequences in certain
circumstances, see 8 CFR 208.13(c)(8), 1208.13(c)(8) (proposed),
because they alleged that it could violate principles of federalism
under the Constitution's Full Faith and Credit Clause, U.S. Const. art.
IV, sec. 1, as codified by the Full Faith and Credit Act, 28 U.S.C.
1738. Commenters asserted that the proposed rule abandoned the
presumption of regularity that should accompany State court orders. By
precluding an adjudicator from considering a post-conviction order
entered to cure substantive or procedural constitutional deficiencies,
adjudicators are effectively given permission to second-guess State
court decisions, which would undermine the authority of and attribute
improper motives to State and Federal tribunals. Commenters alleged
that, in this way, immigration judges would become fact-finders who
look beyond State court records. Further, one commenter contended that
the NPRM undermined local authority to ``evaluate the impact and
consequences certain conduct should have on its residents by adding
broad misdemeanor offenses as a bar to asylum relief,'' which the
commenter asserted would interfere with a local authority's ``sovereign
prerogative to shape its law enforcement policies to best account for
its complex social and political realities.''
Commenters averred that the Departments cited ``a misleading
quote'' from Matter of F-, 8 I&N Dec. 251, 253 (BIA 1959), which would
allow asylum adjudicators to look beyond the face of the State court
order. See 84 FR at 69656. Commenters asserted that the Departments
failed to read Matter of F- in its entirety and that, if they had, they
would have noted that the BIA instead offered support in favor of
presuming the validity of a State court order unless there is a reason
to doubt it. Matter of F-, 8 I&N Dec. at 253 (``Not only the full faith
and credit clause of the Federal Constitution, but familiar principles
of law require the acceptance at face value of a judgment regularly
granted by a competent court, unless a fatal defect is evident upon the
judgment's face. However, the presumption of regularity and of
jurisdiction may be overcome by extrinsic evidence or by the record
itself.'').
Additionally, commenters stated the proposed rule violates circuit
courts of appeals case law holding that the BIA may not consider
outside motives. Commenters cited Pickering v. Gonzales, 465 F.3d 263,
267-70 (6th Cir. 2006), which held that the BIA was limited to
reviewing the authority of the court issuing a vacatur and was not
permitted to review outside motives, such as avoiding negative
immigration consequences. Commenters also cited Reyes-Torres v. Holder,
645 F.3d 1073, 1077-78 (9th Cir. 2011), and noted that the court held
that the respondent's motive was not relevant to the immigration
court's inquiry into whether the decision vacating his conviction was
valid. Finally, commenters cited Rodriguez v. U.S. Attorney General,
844 F.3d 392, 397 (3d Cir. 2006), which held that the immigration judge
may rely only on ``reasons explicitly stated in the record and may not
impute an unexpressed motive for vacating a conviction.'' Commenters
asserted that, in direct contravention of these cases, the proposed
rule grants ``vague and indefinite authority to look beyond a facially
valid vacatur,'' which violates asylum seekers' rights to a full and
fair proceeding.
Commenters also asserted that the Departments improperly extended
the decision in Matter of Thomas and Thompson, 27 I&N Dec. 674, to all
forms of post-conviction relief. By extending this decision, commenters
stated that the proposed rule imposes an ultra vires and unnecessary
burden on asylum seekers. Commenters first asserted that the Attorney
General's decision in Matter of Thomas and Thompson had no
justification in the text or history of the Act. Specifically,
commenters stated that the Act does not limit the authority of
immigration judges by requiring them to consider only State court
sentence modifications that are based on substantive or procedural
defects in the underlying criminal proceedings. Rather, commenters
asserted, the Act requires a ``convict[ion] by a final judgment.''
Commenters argued that, because a vacated judgment is neither ``final''
nor a ``judgment,'' it would have no effect on immigration proceedings.
Commenters argued therefore that the Act does not permit immigration
judges to treat a vacated judgment as valid and effective based on
when, how, or why it was vacated. Moreover, commenters asserted that
``[c]ourt orders are presumptively valid, not the other way around.''
Commenters asserted that the BIA, in Matter of Cota-Vargas, 23 I&N
Dec. 849, 852 (BIA 2005), overruled by Matter of Thomas and Thompson,
27 I&N Dec. 674, relied on the text of the Act and the legislative
history behind Congress's definition of ``conviction'' and ``sentence''
in section 101(a)(48) of the Act (8 U.S.C. 1101(a)(48)) to hold that
proper admissions or findings of guilt were treated as convictions for
immigration purposes, even if the conviction itself was later vacated.
Commenters argued that, as a result, neither the text of the Act nor
the legislative history supports the conclusion reached in Matter of
Thomas and Thompson, and hence that the decision should not be extended
to the proposed rule. Commenters stated that the same is true of orders
modifying, clarifying, or altering a judgment or sentence, as
recognized by the BIA in Matter of Cota-Vargas, 23 I&N Dec. at 852.
Specifically, commenters quoted Matter of Cota-Vargas in noting that
the NPRM's approach to ``sentence modifications has no discernible
basis in the language of the Act.''
Commenters also objected to the two situations in which the
rebuttable presumption against the validity of an order modifying,
clarifying, or altering a judgment or sentence arises: When a court
enters a judgment or sentencing order after the asylum seeker is
already in removal proceedings; or when the asylum seeker moves the
court to modify, clarify, or alter a judgment or sentencing order more
than one year after it was entered. Commenters cited the holding in
Padilla v. Kentucky, 559 U.S. 356, 374 (2010), that noncitizen
defendants have a Sixth Amendment right to be competently advised of
immigration consequences before agreeing to a guilty plea. Commenters
alleged that the presumption is unlawful under Padilla because it holds
asylum applicants whose rights were violated under Padilla to a
different standard. Commenters similarly asserted that the presumption
would prejudice asylum seekers who have not had an opportunity to seek
review of their criminal proceedings until applying for asylum.
Commenters stated that asylum applicants would be forced to rebut the
presumption that an order, entered after the asylum seeker was
[[Page 67211]]
placed in removal proceedings or requested more than one year after the
date of conviction or sentence was entered, is invalid. In this way,
commenters alleged, the NPRM would ``compound the harm to immigrants
who * * * have been denied constitutionally compliant process in the
United States criminal legal system.''
One commenter asserted that some orders changing a sentence or
conviction are entered after removal proceedings began because the
alien had not received the constitutionally required advice regarding
immigration consequences stemming from his or her criminal convictions.
Other commenters explained that because criminal defendants oftentimes
lack legal representation in post-conviction proceedings, they may have
lacked knowledge of their constitutional rights or resources to
challenge their convictions or related issues. Commenters also
explained that asylum applicants may not have had reason to suspect
defects in their criminal proceedings until they applied for asylum and
met with an attorney. Commenters asserted that the NPRM would also harm
those people if they realized these defects more than one year after
their convictions were entered.
Another commenter explained that ``state and federal sentencing
courts should have more discretion to ameliorate the consequences of
criminal convictions for a non-citizen's immigration proceedings.
Collateral sanctions imposed on persons convicted of crimes--such as
ineligibility to apply for relief from removal and other immigration
consequences--should be subject to waiver, modification, or another
form of relief if the sanctions are inappropriate or unfair in a
particular case.''
Response: The Attorney General and the Secretary are granted
general authority to ``establish such regulations [as each determines
to be] necessary for carrying out'' their authorities under the INA.
INA 103(a)(1), (a)(3), and (g)(2) (8 U.S.C. 1103(a)(1), (a)(3), and
(g)(2)); see also Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir.
2008) (en banc) (per curiam) (describing INA 103(g)(2) (8 U.S.C.
1103(g)(2)) as ``a general grant of regulatory authority''); cf.
Narenji v. Civiletti, 617 F.2d 745, 747 (DC Cir. 1979) (``The [INA]
need not specifically authorize each and every action taken by the
Attorney General, so long as his action is reasonably related to the
duties imposed upon him.''). As stated above, the Attorney General and
the Secretary also have the congressionally provided authority to place
additional limitations and conditions on eligibility for asylum,
provided that they are consistent with section 208 of the Act (8 U.S.C.
1158). INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Prescribing the
effect to be given to vacated, expunged, or modified convictions or
sentences is an ancillary aspect of prescribing additional limitations
or conditions on asylum eligibility.
As explained in the NPRM, the rule codifies the principle set forth
in Matter of Thomas and Thompson, 27 I&N Dec. at 680, that, if the
underlying reasons for the vacatur, expungement, or modification were
for ``rehabilitation or immigration hardship,'' the conviction remains
effective for immigration purposes. See 84 FR at 69655. Even before
Matter of Thomas and Thompson was decided, courts of appeals repeatedly
accepted the result reached in that case. See id.; see also Saleh v.
Gonzales, 495 F.3d 17, 24 (2d Cir. 2007); Pinho v. Gonzales, 432 F.3d
193, 215 (3d Cir. 2005). Therefore, the Departments reject commenters'
assertions that the rule improperly relies on or extends Matter of
Thomas and Thompson.\9\ In addition, the Departments note that agencies
may decide whether to announce reinterpretations of a statute through
rulemaking or through adjudication. Matter of Thomas and Thompson, 27
I&N Dec. at 688 (citing, inter alia, NLRB v. Bell Aerospace Co., 416
U.S. 267, 294 (1974)). In Matter of Thomas and Thompson, the Attorney
General elected to address prior BIA precedent regarding the validity
of modifications, clarifications, or other alterations through
administrative adjudication. Id. at 689. That the Attorney General
declined to consider additional issues on this topic through the
administrative adjudication does not foreclose him from later
promulgating additional interpretations or reinterpretations of the Act
through rulemaking, as is being done in this final rule. See Bell
Aerospace Co., 416 U.S. at 294.
---------------------------------------------------------------------------
\9\ To the extent the commenters disagree with the substance of
the Attorney General's decision in Matter of Thomas and Thompson,
the Departments note that this rulemaking is not the mechanism for
expressing such criticisms. The Attorney General has the authority
to review administrative determinations in immigration proceedings,
which includes the power to refer cases for review. INA 103(a)(1),
(g) (8 U.S.C. 1103(a)(1), (g)); 8 CFR 1003.1(h)(1); see also Xian
Tong Dong v. Holder, 696 F.3d 121, 124 (1st Cir. 2012) (the Attorney
General is authorized to direct the BIA to refer cases to him for
review and, given this authority, his decisions are entitled to
Chevron deference). When the Attorney General certifies a case to
himself, he has broad discretion to review the issues before him.
See Matter of J-F-F-, 23 I&N Dec. 912, 913 (A.G. 2006).
---------------------------------------------------------------------------
The Departments also reject commenters' claims that the approach
set forth by the rule violates the Full Faith and Credit Clause, U.S.
Const. art. IV, sec. 1, or the Full Faith and Credit Act, 28 U.S.C.
1738. The Full Faith and Credit provisions of 28 U.S.C. 1738 apply to
courts and not administrative agencies. See NLRB v. Yellow Freight
Sys., Inc., 930 F.2d 316, 320 (3d Cir. 1991) (federal administrative
agencies are not bound by section 1738 because they are not
``courts''); see also Am. Airlines v. Dep't. of Transp., 202 F.3d 788,
799 (5th Cir. 2000) (28 U.S.C. 1738 did not apply to the Department of
Transportation because it is ``an agency, not a `court''').
Moreover, as explained by the Second Circuit, and as reiterated by
the Attorney General in Matter of Thomas and Thompson, when an
immigration judge reviews a State conviction for an offense, the
immigration judge is merely comparing the State conviction to the
Federal definition of an offense under the Act. Saleh, 495 F.3d at 26
(``[T]he BIA is simply interpreting how to apply Saleh's vacated State
conviction for receiving stolen property to the INA and is not refusing
to recognize or relitigating the validity of Saleh's California state
conviction.''); Matter of Thomas and Thompson, 27 I&N Dec. at 688
(``[T]he immigration judge in such a case simply determines the effect
of that order for the purposes of federal immigration law.''). As a
result, because the State court order remains effective and
unchallenged for all other purposes, there is no intrusion on State law
and no violation of the principles of federalism and comity. Matter of
Thomas and Thompson, 27 I&N Dec. at 688.
The Departments reject commenters' assertions that the NPRM
improperly quotes Matter of F-, 8 I&N Dec. 251. The NPRM cites Matter
of F- only to support the proposition that the alien must establish
that a court issuing an order vacating or expunging a conviction or
modifying a sentence had jurisdiction and authority to do so. 84 FR at
69656. No law compels the Departments to accept State court orders
entered without jurisdiction, and there is no sound public policy
reason for doing so. Further, adopting such a policy would also
potentially raise difficulties for the faithful and consistent
administration of the immigration laws, as the Departments could be
required to accept a State court judgment declaring an alien to be a
United States citizen, even though a State court cannot confer or
establish United States citizenship. Both
[[Page 67212]]
Matter of F- and the regulatory language simply restate the
longstanding proposition that adjudicators in the Departments are not
bound by judgments rendered by courts without jurisdiction, and even
the full language noted by commenters from Matter of F- adheres to that
proposition. Matter of F-, 8 I&N Dec. at 253 (explaining that, although
``familiar principles of law require the acceptance at face value of a
judgment regularly granted by a competent court,'' the ``presumption of
regularity and of jurisdiction may be overcome by extrinsic evidence or
by the record itself'').
Commenters' statements that the Departments' interpretation of
``conviction'' runs contrary to Congress's intent in defining the term
are similarly misplaced. As explained by the Attorney General, in
enacting section 101(a)(48) of the Act (8 U.S.C. 1101(a)(48)), Congress
made clear that immigration consequences should flow from the original
determination of guilt. Matter of Thomas and Thompson, 27 I&N Dec. at
682 (describing subsequent case law analyzing Congress's intent in
enacting a definition for conviction). To the extent that commenters
relied on Matter of Cota-Vargas, 23 I&N Dec. 849, the Attorney General
expressly overruled that decision and explained that Congress did
intend to clarify the definition of ``conviction'' for immigration
purposes. Matter of Thomas and Thompson, 27 I&N Dec. at 679, 682.
Regarding commenters' concerns about the creation of a rebuttable
presumption against the validity of an order modifying, clarifying, or
altering a judgment or sentence, the Departments reiterate that this is
merely a presumption. Individuals will be able to overcome the
presumption by providing evidence that the modification, clarification,
or vacatur was sought for genuine substantive or procedural reasons. As
noted in the NPRM, the purpose of this presumption is to promote
finality in immigration proceedings by encouraging individuals to
pursue legitimate concerns regarding the validity of prior convictions.
84 FR at 69656.
The Departments disagree that creating a rebuttable presumption is
unlawful under Padilla v. Kentucky, 559 U.S. 356. In Padilla, the
Supreme Court held that noncitizen defendants have a Sixth Amendment
right to be competently advised of immigration consequences before
agreeing to a guilty plea. Id. at 374. The rule does not affect this
right, and noncitizen defendants continue to retain this right in
criminal proceedings. Moreover, if a noncitizen defendant is not
properly apprised of the immigration consequences of a guilty plea,
that individual continues to have the right to pursue the necessary
action to address that error through the criminal justice system.
Similarly, an individual whose Sixth Amendment rights were determined
to have been violated in contravention of Padilla would be able to
present this evidence in immigration proceedings and, if the evidence
is sufficient, overcome the presumption that the individual was seeking
a modification, clarification, or vacatur for immigration purposes.
Regarding commenters' assertions that State and Federal sentencing
courts should have more discretion to ameliorate the consequences of
criminal convictions for a non-citizen's immigration proceedings, the
Departments disagree. Administration and enforcement of the nation's
immigration laws as written by Congress are entirely within the purview
of the Executive Branch, specifically the Attorney General and the
Secretary. See INA 103 (8 U.S.C. 1103). The Attorney General and the
Secretary are granted discretion and authority to determine the manner
in which to administer and enforce the immigration laws. Id. At the
same time, this rule will not have any bearing on how States or other
jurisdictions implement their criminal justice system because, as
explained, any post-conviction relief remains valid for all other
purposes.
b. Violation of International Law
Comment: Numerous commenters alleged that the proposed rule
violates the United States' obligations to protect refugees and asylum
seekers under international law, including obligations flowing from the
Protocol relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.
6223 (``the Protocol'' or ``the 1967 Protocol''), which incorporates
Articles 2 to 34 of the 1951 Convention relating to the Status of
Refugees, July 28, 1951, 19 U.S.T. 6233, 6259-76 (``the Refugee
Convention''). Commenters stated that, by virtue of signing the
Protocol, the United States is bound to create refugee laws that comply
with the Protocol. Commenters asserted that the current laws,
regulations, and processes governing asylum adjudications are already
exceedingly harsh and are not compliant with international obligations.
Commenters claimed that, rather than working to better align the United
States with international obligations, the proposed rule's new
categorical bars to asylum violate both the language and spirit of the
Refugee Convention.
Commenters speculated that the proposed rule will violate the
principle of non-refoulement, as described in Article 33(1) of the
Refugee Convention, which requires that ``[n]o contracting state shall
expel or return (`refouler') a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a
particular social group or political opinion.'' Commenters noted that,
in considering non-refoulement, the United States is obligated to
ensure a heightened consideration to children. Commenters also claimed
that the exception to refugee protection contained in Article 33(2) of
the Refugee Convention \10\ does not affect non-refoulement
obligations. Commenters also outlined the United States' obligations to
protect migrants, irrespective of migration status, as outlined in the
Universal Declaration of Human Rights and other human rights
instruments. Commenters stated that to comply with these protection
obligations, the United States must respond to the protection needs of
migrants, with a particular duty of care for migrants in vulnerable
situations.
---------------------------------------------------------------------------
\10\ Article 33(2) of the Refugee Conviction provides: ``The
benefit of the present provision may not, however, be claimed by a
refugee whom there are reasonable grounds for regarding as a danger
to the security of the country in which he is, or who, having been
convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.''
---------------------------------------------------------------------------
Commenters also asserted that the proposed rule violates the United
States' obligations under customary international law. These commenters
cited Article III of the U.S. Constitution and Sosa v. Alvarez-Machain,
542 U.S. 692, 729 (2004), in asserting that customary international law
is recognized as and must be applied as U.S. law. Commenters stated
that, unlike treaty law, customary international law cannot be
derogated by later legislation and remains in full force at all times.
Commenters claimed that even good faith efforts by States to change a
rule are violations of customary international law until the rule has
been changed by a consensus of States through opinio juris and state
practice. Despite this summary of customary international law, these
commenters did not specify how the proposed rule violates customary
international law.
Other commenters averred that the proposed rule violates
international law by expanding the definition of a ``particularly
serious crime'' beyond the parameters of the term as defined by the
United Nations High Commissioner for
[[Page 67213]]
Refugees (``UNHCR'') by rendering nearly all criminal convictions bars
to asylum. Commenters recognized that Article 33(2) of the Refugee
Convention allows states to exclude or expel individuals from refugee
protection if they have been ``convicted by a final judgment of a
particularly serious crime'' and ``constitute[] a danger to the
community of that country.'' However, commenters asserted that this
clause is intended only for ``extreme cases,'' in which the
particularly serious crime is a ``capital crime or a very grave
punishable act.'' Commenters cited UNHCR's statement that the crime
``must belong to the gravest category'' and that the individual must
``become an extremely serious threat to the country of asylum due to
the severity of crimes perpetrated by them in the country of asylum.''
Again citing UNHCR, commenters further asserted that this exception
does not include less extreme crimes such as ``petty theft or the
possession for personal use of illicit narcotic substances.''
Commenters also expressed concern that the proposed rule's
categorical bars do not allow for an individualized analysis as to
whether an individual who has been convicted of a particularly serious
crime also presents a danger to the community. Commenters noted that,
in the proposed rule, the Departments cited the need for increased
efficiency as a justification for creating these additional bars.
However, commenters responded that an individualized determination is
exactly what is required by the Refugee Convention. Specifically,
commenters claimed that the Departments ignored UNHCR guidelines,\11\
which require not only a conviction for a particularly serious crime
but also a determination that the individual constitutes a danger to
the community of the country of refuge. Commenters averred that a
conviction, without more, does not make an individual a present or
future danger to the community. Commenters accordingly asserted that
the Refugee Convention's ``particularly serious crime'' bar should
apply only after a determination that an individual was convicted of a
particularly serious crime and a separate assessment demonstrates that
he or she is a present or future danger.
---------------------------------------------------------------------------
\11\ Commenters cited paragraph 154 the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status and
Guidelines on International Protection Under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees.
---------------------------------------------------------------------------
In addition, commenters alleged that the Act, in combination with
subsequent agency interpretations, have already expanded the term
``particularly serious crime'' far beyond its contemplated definition
by creating the categorical ``particularly serious crime'' bar that
incorporates the aggravated felony definition. Similarly, commenters
stated that adjudicators already have overly broad discretion to deny
asylum based on alleged criminal conduct. These commenters claimed that
the proposed rule would cause the United States to further depart from
its international obligations by creating additional bars without
consideration of other factors, such as dangerousness. Commenters
alleged that, in justifying the proposed rule, the Departments
improperly cited the ``serious non-political crime'' bar that applies
only to conduct that occurred outside the United States.
In addition to these alleged violations of international law,
commenters also asserted that the Departments' emphasis on the
discretionary nature of asylum violates U.S. treaty obligations,
congressional intent, and case law. Commenters noted that, although a
refugee seeking protection in the United States does not always have a
claim to mandatory protection, Congress's intent, in enacting the
Refugee Act of 1980, Public Law 96-212, 94 Stat. 102 (``the Refugee
Act''), was to expand the availability of refugee protection and bring
the United States into compliance with its obligations under the 1967
Protocol. Commenters alleged that the proposed rule does the opposite
by providing seven categorical bars to asylum and, as a result,
violates the spirit and intent of the Refugee Act.
Commenters alleged that the Departments' reliance on the Attorney
General's discretion to enact the proposed changes is ultra vires
because the Attorney General, even in his discretion, may not violate
domestic law, international treaties, or fundamental human rights.
Specifically, commenters averred that the Attorney General's discretion
is limited by the criteria in sections 208(b) and (d) of the Act (8
U.S.C. 1158(b) and (d)) as well as the legislative history regarding
these sections, which, according to the commenters, clearly incorporate
international law and legal norms. Commenters stated, moreover, that
where the United States is a party to a treaty, any decision to
abrogate the treaty must be clearly expressed by Congress.
One commenter expressed concern with the Departments'
interpretation and reliance on Article 34 of the Refugee Convention,
which provides that parties ``shall as far as possible facilitate the
assimilation and naturalization of refugees.'' This commenter
criticized the Departments' analysis regarding the availability of
alternative relief for individuals barred from asylum under the
proposed rule. Specifically, the commenter noted that, although Article
34 requires the United States only to make efforts to naturalize
refugees, not to naturalize all refugees, this does not mean that the
United States then has the discretion to limit access to the asylum
system in the first place.
Response: As explained in the NPRM, this rule is consistent with
the United States' obligations as a party to the 1967 Protocol, which
incorporates Articles 2 through 34 of the 1951 Refugee Convention.\12\
This rule is also consistent with U.S. obligations under Article 3 of
the CAT, as implemented in the immigration regulations pursuant to the
implementing legislation.
---------------------------------------------------------------------------
\12\ The Departments also note that neither of these treaties is
self-executing, and that they are therefore not directly enforceable
in U.S. law except to the extent that they have been implemented by
domestic legislation. Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d
Cir. 2005) (``The 1967 Protocol is not self-executing, nor does it
confer any rights beyond those granted by implementing domestic
legislation.''); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005)
(CAT ``was not self-executing''); see also INS v. Stevic, 467 U.S.
407, 428 n.22 (1984) (``Article 34 merely called on nations to
facilitate the admission of refugees to the extent possible; the
language of Article 34 was precatory and not self-executing.'').
---------------------------------------------------------------------------
As an initial matter, the rule affects eligibility for asylum but
does not place any additional limitations on statutory withholding of
removal or protection under the CAT regulations. The United States
implemented the non-refoulement provision of Article 33(1) of the
Refugee Convention through the withholding of removal provision at
section 241(b)(3) of the Act (8 U.S.C. 1231(b)(3)), and the non-
refoulement provision of Article 3 of the CAT through the CAT
regulations, rather than through the asylum provisions at section 208
of the Act (8 U.S.C. 1158). See INS v. Cardoza-Fonseca, 480 U.S. 421,
429, 440-41 (1987); Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010)
(applying section 241(b)(3)); see also Foreign Affairs Reform and
Restructuring Act of 1998 (``FARRA''), Public Law 105-277, div. G, sec.
2242, 112 Stat. 2681, 2631-822; 8 CFR 208.16 through 208.18; 1208.16
through 1208.18. The Supreme Court has explained that asylum ``does not
correspond to Article 33 of the Convention, but instead corresponds to
Article 34,'' which provides that contracting States ```shall as far as
possible facilitate the assimilation and naturalization of refugees.'
'' Cardoza-Fonseca, 480 U.S. at 441. Article 34 ``is
[[Page 67214]]
precatory; it does not require the implementing authority actually to
grant asylum to all those who are eligible.'' Id.
Because the rule does not affect statutory withholding of removal
or CAT protection, the proposed rule is consistent with the non-
refoulement provisions of the 1951 Refugee Convention, the 1967
Protocol, and the CAT. See Matter of R-S-C-, 869 F.3d at 1188 & n.11
(explaining that ``the Refugee Convention's non-refoulement principle--
which prohibits the deportation of aliens to countries where the alien
will experience persecution--is given full effect by the Attorney
General's withholding-only rule''); Cazun v. Att'y Gen. U.S., 856 F.3d
249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 813 F.3d 240,
241 (5th Cir. 2016); Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th Cir.
2015) (explaining that Article 3 of the CAT, which sets out the non-
refoulement obligations of parties, was implemented in the United
States by FARRA and its implementing regulations).
The rule does not affect the withholding of removal process or
standards. INA 241(b)(3) (8 U.S.C. 1231(b)(3)); 8 CFR 208.16, 1208.16.
An alien who can demonstrate that he or she would more likely than not
face persecution on account of a protected ground or torture may
qualify for statutory withholding of removal or CAT protection.
Therefore, because individuals who may be barred from asylum by the
rule remain eligible to seek statutory withholding of removal and CAT
protection, the rule does not violate the principle of non-refoulement.
Cf. Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017) (discussing the
distinction between asylum and withholding of removal and explaining
that ``withholding of removal has long been understood to be a
mandatory protection that must be given to certain qualifying aliens,
while asylum has never been so understood'').
Commenters asserted, without support, that the United States must
respond to the needs of migrants to comply with the 1948 Universal
Declaration of Human Rights. See Universal Declaration of Human Rights,
G.A. Res. 217A (III), U.N. Doc. A/810 (1948) (``UDHR''). The UDHR is a
non-binding human rights instrument, not an international agreement,
and thus it does not impose legal obligations on the United States.
Alvarez-Machain, 542 U.S. at 728, 734-35 (citing John P. Humphrey, The
U.N. Charter and the Universal Declaration of Human Rights, in The
International Protection of Human Rights 39, 50 (Evan Luard ed., 1967)
(quoting Eleanor Roosevelt as stating that the Declaration is ```a
statement of principles * * * setting up a common standard of
achievement for all peoples and all nations' and `not a treaty or
international agreement * * * impos[ing] legal obligations.' '')). In
any case, although the UDHR proclaims the right of ``[e]veryone'' to
``seek and to enjoy'' asylum, UDHR Art. 14(1), it does not purport to
state specific standards for establishing asylum eligibility, and it
certainly cannot be read to impose an obligation on the United States
to grant asylum to ``everyone,'' see id., or to prevent the Attorney
General and the Secretary from exercising their discretion granted by
the INA, consistent with U.S. obligations under international law as
implemented in domestic law. See UNHCR, Advisory Opinion on the
Extraterritorial Application of Non-Refoulement Obligations Under the
1951 Convention Relating to the Status of Refugees and its 1967
Protocol 3 (Jan. 26, 2007), https://www.unhcr.org/4d9486929.pdf (``The
principle of non-refoulement as provided for in Article 33(1) of the
1951 Convention does not, as such, entail a right of the individual to
be granted asylum in a particular State.''). The United States' overall
response to the needs of migrants extends beyond the scope of this
rulemaking.
To the extent that commenters made blanket assertions that the rule
violates customary international law or other international documents
and statements of principles, the commenters ignore the fact that the
rule leaves the requirements for an ultimate grant of statutory
withholding of removal or CAT withholding or deferral of removal
unchanged.
As explained in additional detail in section II.C.2.a.i of this
preamble, the rule did not designate additional particularly serious
crimes in the regulatory text. Because the Departments have the
independent authority for these changes under INA 208(b)(2)(C) (8
U.S.C. 1158(b)(2)(C)), the Departments need not further respond to
comments regarding the current ``particularly serious crime'' bar, as
those comments extend beyond the scope of this rulemaking.
Nevertheless, commenters' assertions that the proposed rule improperly
and unlawfully expands the definition of ``particularly serious crime''
beyond the definition provided by UNHCR are misguided. UNHCR's
interpretations of or recommendations regarding the Refugee Convention
and the Protocol, such as set forth in the UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status Under the 1951 Convention
and the 1967 Protocol Relating to the Status of Refugees (Geneva 1992)
(reissued Feb. 2019), are ``not binding on the Attorney General, the
BIA, or United States courts.'' INS v. Aguirre-Aguirre, 526 U.S. 415,
427 (1999). ``Indeed, the Handbook itself disclaims such force,
explaining that `the determination of refugee status under the 1951
Convention and the 1967 Protocol * * * is incumbent upon the
Contracting State in whose territory the refugee finds himself.' '' Id.
at 427-28. To the extent such guidance ``may be a useful interpretative
aid,'' id. at 427, it would apply to statutory withholding of removal--
which is the protection that implements Article 33 of the Convention--
and which, as discussed above, this rule does not affect.
Commenters also relied on the advisory UNHCR Handbook to assert
that an adjudicator must make an individualized assessment as to
whether an asylum applicant presents or will present a danger to the
community. Again, as noted above, the Departments clarify in section
II.C.2.a.i that the rule did not designate additional particularly
serious crimes in the regulatory text. Regardless, the Departments have
longstanding authority under U.S. law to create asylum-related
conditions without an individualized consideration of present or future
danger to the community.\13\ For example, in 2000, Attorney General
Janet Reno limited asylum eligibility pursuant to the authority at
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) based on ``a
fundamental change in circumstances'' or the ability of an alien to
reasonably relocate within the alien's country of nationality or last
habitual residence, even where that alien had established he or she had
suffered past persecution. See Asylum Procedures, 65 FR 76121, 76133-36
(Dec. 6, 2000) (adding 8 CFR 208.13(b)(1)(i)-(ii)). As outlined in the
NPRM, the Attorney General and Congress have previously established
several mandatory bars to asylum eligibility. 84 FR at 69641. The
Departments note that the adjudicator must still make an individualized
determination as to whether a given offense falls into the category of
conduct
[[Page 67215]]
contemplated by an individual bar. Komarenko v. INS, 35 F.3d 432, 436
(9th Cir. 1994) (upholding particularly serious crime bar), abrogated
on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). In
addition, as explained above, the UNHCR Handbook is not binding on the
Attorney General, the BIA, or United States courts, although it ``may
be a useful interpretative aid.'' Aguirre-Aguirre, 526 U.S. at 427.
---------------------------------------------------------------------------
\13\ In addition, even if this rulemaking did enact regulatory
provisions requiring an interpretation of particularly serious
crimes, U.S. law has long held that, once an alien is found to have
been convicted of a particularly serious crime, there is no need for
a separate determination whether he or she is a danger to the
community. See Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007),
aff'd, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert.
denied, 562 U.S. 1141 (2011); Matter of Q-T-M-T-, 21 I&N Dec. 639,
646-47 (BIA 1996); Matter of K-, 20 I&N Dec. 418, 423-24 (BIA 1991);
Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986).
---------------------------------------------------------------------------
The Departments disagree with commenters' assertions that, by
relying on the discretionary nature of asylum, the rule violates U.S.
treaty obligations, congressional intent, and case law. As explained
above, because the rule does not alter eligibility for withholding of
removal or CAT protection, the rule does not violate U.S. treaty
obligations and ensures continued compliance with U.S. non-refoulement
obligations. Additionally, Congress's intent in enacting the Refugee
Act was ``a desire to revise and regularize the procedures governing
the admission of refugees into the United States.'' Stevic, 467 U.S. at
425. Rather than expanding the availability of refugee protection, as
asserted by commenters, the Refugee Act's definition of refugee does
``not create a new and expanded means of entry, but instead regularizes
and formalizes the policies and practices that have been followed in
recent years.'' Id. at 426 (quoting H.R. Rep. No. 96-608, at 10
(1979)). Moreover, case law supports the Attorney General's authority
under U.S. law to limit asylum. See Yang v. INS, 79 F.3d 932, 936-39
(9th Cir. 1996) (upholding regulatory implementation of the firm
resettlement bar); see also Komarenko, 35 F.3d at 436 (upholding
regulatory implementation of the ``particularly serious crime'' bar).
Regarding the Attorney General's and the Secretary's discretion to
enact the rule, the Departments disagree that the rule is ultra vires
because, as explained above, Congress has granted the Attorney General
and the Secretary the authority to limit eligibility for asylum. See
INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Moreover, the rule does not
violate applicable obligations under domestic law or international
treaties for the reasons discussed above.
3. Concerns With Categorical Bars
In addition to comments generally opposing the seven bars proposed
by the NPRM, commenters also raised concerns related to specific bars.
a. Felonies
Comment: Commenters opposed the proposed limitation on asylum
eligibility for individuals who have been convicted of any felony under
Federal, State, tribal, or local law. See 8 CFR 208.13(c)(6)(vi)(A),
1208.13(c)(6)(vi)(A) (proposed). Commenters generally stated that the
proposed limitation was overbroad and that the Departments failed to
support their stated position that offenses carrying potential
sentences of more than one year correlate to recidivism and
dangerousness. Commenters asserted that the proposed limitation would
``sweep in'' minor conduct, including some State misdemeanors.
Commenters also opposed the Departments' proposed definition of the
term ``felony,'' see 8 CFR 208.13(c)(7)(i), 1208.13(c)(7)(i)
(proposed), as any crime defined as a felony by the relevant
jurisdiction of conviction, or any crime punishable by more than one
year imprisonment. Commenters objected to both portions of the proposed
definition.
Specifically, commenters opposed the definition's reliance on the
maximum possible sentence of an offense over the actual sentence
imposed. Commenters opposed the Departments' reasoning for that
determination. See 84 FR at 69646 (``[T]he sentence actually imposed
often depends on factors such as offender characteristics that may
operate to reduce a sentence but do not diminish the gravity of the
crime.'' (alteration and quotation marks omitted)). Commenters stated
that imposing a sentence requires careful consideration of numerous
factors, including any mitigating circumstances, and that the proposed
definition dismissed careful sentencing considerations by prosecutors
and criminal sentencing courts, which are charged with considering
public safety. Commenters stated that the actual sentence imposed is a
more faithful and accurate measure of whether an individual's conduct
was ``particularly serious'' and that not every offense that would be a
felony under the proposed definition is or should be considered a
``particularly serious crime.'' Commenters also stated that not every
alien convicted of a crime that is punishable by more than one year of
imprisonment is a danger to the community who should be barred from
asylum eligibility.
Commenters also opposed the proposal that the definition of felony
include any offense that is labeled as a felony in its respective
jurisdiction, regardless of the maximum term of imprisonment or other
factors. Commenters stated that, with certain types of offenses, the
difference between misdemeanors and felonies does not necessarily
involve aggravated conduct or heightened risk to the public but rather
factual elements, such as the alleged dollar value of a stolen good.
Accordingly, commenters stated, it would be inappropriate to
categorically bar eligibility for asylum on this basis.
Commenters asserted that a categorical bar against all felonies, as
defined by the NPRM, would result in drastic inconsistencies and unfair
results and would undermine the Departments' stated goal of uniformity
and consistency. Commenters stated that the proposed definition would
improperly treat a broad range of offenses as equally severe.
Additionally, commenters stated, a broad range of criminal conduct
encompassing varying degrees of severity or dangerousness could be
charged under the same disqualifying offense.
At the same time, commenters suggested that identical conduct in
different States (or other jurisdictions) would have different
consequences on eligibility for asylum, depending on whether the
jurisdiction labeled the crime as a felony or set a maximum penalty of
over one year of imprisonment. As an example, one commenter asserted
that felony theft threshold amounts among the States vary considerably,
ranging from $200 to $2,500 or more, but noted that the proposed rule
would treat these varying offenses equally under the proposed
definition. The commenter stated that the definition was overbroad and
did not exercise the ``special caution'' that should be taken with
asylum cases given the high stakes involved. Other commenters stated
that the desire for consistency should not be elevated over
``legitimate concerns of fairness and accurate assessments of
dangerousness.''
One commenter opined that the proposed limitation would ignore the
federalist nature of the U.S. criminal justice system, where each State
has its own criminal code and makes individual determinations about
which conduct should be criminalized, and how.
Commenters stated that the ``harsh inequities'' created by the rule
would dissuade aliens who are fleeing persecution to plead guilty to
misdemeanor charges that could carry a one-year sentence, even if the
plea agreement would not include any incarceration, which could in turn
have a host of unintended collateral consequences in the criminal
justice system. Numerous commenters offered specific examples of State
laws that they asserted would improperly be considered disqualifying
offenses under the proposed limitation and accompanying definition. For
example,
[[Page 67216]]
commenters stated that some States, such as Massachusetts, define
misdemeanors, which may carry a sentence of one year or more in a
``house of correction,'' much more broadly than many other States.
Commenters also listed statutes from New York,\14\ Maryland,\15\ and
several other States that they believed should not qualify as a basis
for limiting eligibility to asylum.
---------------------------------------------------------------------------
\14\ See N.Y.P.L. 145.05. (criminalizing the causing of $250
worth of property damage); N.Y.P.L. 275.34 (criminalizing the
recording of a movie in a theater two times); N.Y.P.L. 220.06
(criminalizing simple possession of more than half an ounce of a
narcotic).
\15\ See MD. CODE, ALCO. BEV. 6-307; MD. CODE, ALCO. BEV. 6-402
(criminalizing the sale of alcohol to a visibly intoxicated person
with a sentence of up to two years); MD. CODE, CRIM. LAW 3-804
(criminalizing the use of a telephone to make a single anonymous
phone call to annoy or embarrass another person with a sentence of
up to three years); MD. CODE, CRIM. LAW 4-101 (criminalizing the
simple possession of a ``dangerous weapon,'' including a utility
knife, on one's person, with a sentence of up to three years); MD.
CODE, CRIM. LAW 6-105 (criminalizing the burning of property under
$1,000 with a sentence of up to 18 months); MD. CODE, CRIM. LAW 6-
205 (criminalizing the unauthorized entry into a dwelling with a
sentence of up to three years); MD. CODE, CRIM. LAW 7-203
(criminalizing the temporary use of another person's vehicle without
his or her consent (i.e., ``joyriding'') with a sentence of up to
four years); MD. CODE, TAX-GEN. 13-1015 (criminalizing the import,
sale or transportation of unstamped cigarettes within the state of
Maryland with a sentence of up to two years).
---------------------------------------------------------------------------
Response: The Departments disagree with commenters' opposition to
the inclusion of any felony conviction as a bar to asylum eligibility
and to the corresponding proposed definition of ``felony'' for the
purposes of determining whether the bar applies. As an initial matter,
to the extent commenters expressed concern that the inclusion of any
felony is an inaccurate measure of whether an individual's conduct was
``particularly serious'' or that not every offense that would be a
felony under the proposed definition is or should be considered a
``particularly serious crime,'' the Departments need not address these
concerns in detail because this rule, like the proposed rule,
designates these offenses as additional limitations on asylum
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\16\
See 8 CFR 208.13(c)(6), 1208.13(c)(6).
---------------------------------------------------------------------------
\16\ The proposed rule's preamble cited both the authority at
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to
designate offenses as particularly serious crimes and the authority
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to
establish additional limitations on asylum eligibility in support of
the designation of all felonies as bars to asylum eligibility.
Compare 84 FR at 69645 (explaining that the Attorney General and the
Secretary could reasonably exercise their discretion to ``classify
felony offenses as particularly serious crimes for purposes of 8
U.S.C. 1158(b)(2)(B)(ii)''), with id. at 69647 (explaining that, in
addition to their authority under section 208(b)(2)(C), ``the
Attorney General and the Secretary ``further propose relying on
their respective authorities under section 208(b)(2)(C) of the INA,
8 U.S.C. 1158(b)(2)(C), to make all felony convictions disqualifying
for purposes of asylum eligibility''). The regulatory text, however,
does not actually designate any additional offenses as
``particularly serious crimes.'' Instead, the discussion of
particularly serious crimes helps illustrate how issuing the new
bars pursuant to section 208(b)(2)(C) is ``consistent with'' the
rest of the INA because the new bars--similar to the ``particularly
serious crime'' bar--exclude from eligibility those aliens whose
conduct demonstrates that they are dangerous to the United States or
otherwise do not merit eligibility for asylum. Further discussion of
the interaction of the rule with the ``particularly serious crime''
bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------
As explained above, the Departments reiterate the explanation in
the NPRM that the inclusion of any felony conviction as a bar to asylum
eligibility is intended to avoid inconsistencies, inefficiencies, and
anomalous results that often follow from the application of the
categorical approach. 84 FR at 69645-46. In addition, the felony
limitation on eligibility for asylum is consistent with other losses of
benefits for felony convictions. See 84 FR at 69647 (explaining that
treating a felony conviction as disqualifying for purposes of obtaining
the discretionary benefit of asylum would be consistent with the
disabilities arising from felony convictions in other contexts and
would reflect the ``serious social costs of such crimes'').
The Departments disagree with commenters' concerns that the felony
limitation and related definition of ``felony'' would result in drastic
inconsistencies and unfair results, undermining the stated purpose of
the rule. As described in the NPRM, the existing reliance on the
categorical approach to determine the immigration consequences of
convictions has far too often resulted in seemingly inconsistent or
anomalous results. 84 FR at 69645-46.\17\ The rule will significantly
help to curtail inconsistencies and confusion over what offenses may be
disqualifying for purposes of asylum, as all aliens who have been
convicted of the same level of offense will receive the same treatment
during asylum proceedings.
---------------------------------------------------------------------------
\17\ Further discussion of the problems with the categorical
approach is set out above in section II.C.2.a.ii.
---------------------------------------------------------------------------
The Departments understand that the States have different criminal
codes with different definitions of crimes, levels of offense, and
other differences. With respect to commenters' federalism concerns,
Congress has plenary authority over aliens, and that authority has been
delegated the Departments. See Zadvydas v. Davis, 533 U.S. 678, 695
(2001) (citing INS v. Chadha, 462 U.S. 919, 941-42 (1983), for the
proposition that Congress must choose ``a constitutionally permissible
means of implementing'' that power); INA 208(b)(2)(C), (d)(5)(B) (8
U.S.C. 1158(b)(2)(C), (d)(5)(B)). Additionally, as stated in the NPRM
and above in section II.C.2.A.ii, the categorical approach is overly
complex, leads to inconsistent treatment of aliens who have been
convicted of serious criminal offenses, and presents a strain on
judicial and administrative resources. Although some aliens who have
been convicted of serious criminal offenses are appropriately barred
from discretionary benefits under the Act, such as asylum, others are
not. See, e.g., Lowe, 920 F.3d at 420 (Thapar, J., concurring) (``[I]n
the categorical-approach world, we cannot call rape what it is. * * *
[I]t is time for Congress to revisit the categorical approach so we do
not have to live in a fictional world where we call a violent rape non-
violent.''). This rule will provide certainty by establishing a bright-
line rule that is both easy to understand and will apply uniformly to
all applicants who have been convicted of felonies, which the
Departments believe to be significant offenses. Aliens are being given
advance notice through the NPRM, which was published on December 19,
2019, 84 FR at 69646, and by this publication of the final rule, that
any felony conviction will be a bar to eligibility for the
discretionary benefit of asylum. Cf. 8 CFR 208.3(c)(6)(vi)(A), 8 CFR
1208.3(c)(6)(vi)(A) (proposed) (barring aliens who have been convicted
of felonies ``on or after [the effective] date'').
The Departments disagree that the proposed definition of ``felony''
implicates federalism concerns by defining the term ``felony,'' as it
is to be used in this context, differently from States' (or other
jurisdictions') definitions of felonies. In fact, the Departments
believe that the felony definition is consistent with principles of
federalism by primarily deferring to each State's choice of what
offenses to define as felonies. Similarly, the alternative definition
capturing any crime punishable by more than one year of imprisonment is
consistent with the Federal definition and many States' definitions of
``felony.'' See, e.g., 18 U.S.C. 3559 (defining ``felonies'' as
offenses with a maximum term of imprisonment of more than one year); 1
Wharton's Criminal Law Sec. 19 & n.23 (15th ed.) (surveying State
laws).
Congress has delegated to the Departments, not the States or other
jurisdictions, the authority to set additional limitations on
eligibility for
[[Page 67217]]
asylum, and the Departments have reasonably determined that the
offenses encompassed within the definition should be disqualifying
offenses. This rule will not have any direct bearing on how States or
other jurisdictions implement their criminal justice system.
With respect to commenters' concerns that the rule will affect how
and when aliens enter into plea deals for criminal offenses, such
pleadings take place during criminal proceedings, not immigration
proceedings. Although asylum adjudications may rely on the information
derived from criminal proceedings, the Departments believe that any
effects that the rule might have outside of the immigration context are
beyond the context of this rulemaking. Cf. San Francisco v. USCIS, 944
F.3d 773, 804 (9th Cir. 2019) (``Any effects [of a DHS rule] on
[healthcare] entities are indirect and well beyond DHS's charge and
expertise.''). Additionally, the Departments believe that this rule
would actually provide more clarity in the pleading process because the
rule sets forth straightforward guidelines about what offenses would
and would not be disqualifying offenses for purposes of asylum. In
turn, criminal defense attorneys will be better able to advise their
clients on the predictable immigration consequences of a conviction.
Cf. Padilla, 559 U.S. at 357 (``There will, however, undoubtedly be
numerous situations in which the deportation consequences of a plea are
unclear. In those cases, a criminal defense attorney need do no more
than advise a noncitizen client that pending criminal charges may carry
adverse immigration consequences. But when the deportation consequence
is truly clear, as it was here, the duty to give correct advice is
equally clear.'').
Second, regarding the commenters' concerns with the definition for
the term ``felony,'' see 8 CFR 208.13(c)(7)(i), 1208.13(c)(7)(i)
(proposed), the Departments disagree that the definition should look to
the actual sentence imposed instead of the maximum possible sentence.
As noted in the NPRM, consideration of an offense's maximum possible
sentence is generally consistent with the way other Federal laws define
felonies. See 84 FR at 69646; see also, e.g., 5 U.S.C. 7313(b) (``For
the purposes of this section, `felony' means any offense for which
imprisonment is authorized for a term exceeding one year.''); cf.
U.S.S.G. 2L1.2 cmt. n.2 (```Felony' means any federal, state, or local
offense punishable by imprisonment for a term exceeding one year.'').
The Model Penal Code and most States likewise define a felony as a
crime with a possible sentence in ``excess of one year.'' Model Penal
Code Sec. 1.04(2); see also 1 Wharton's Criminal Law Sec. 19 & n.23
(15th ed.) (surveying State laws).
In addition, as recognized by the commenters, sentencing courts and
prosecutors consider a number of factors when imposing a sentence, many
of which have no bearing on the seriousness of the crime committed.
Specifically, in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), the BIA
explained that the sentence imposed might be based on conduct
``subsequent and unrelated to the commission of the offense, such as
cooperation with law enforcement authorities,'' or ``offender
characteristics.'' Id. at 343 (determining that the respondent had been
convicted of a particularly serious crime even where no term of
imprisonment was imposed); see also Holloway v. Att'y Gen. U.S., 948
F.3d 164, 175 (3d Cir. 2020) (``[T]he maximum penalty that may be
imposed often reveals how the legislature views an offense. Put
succinctly, the maximum possible punishment is certainly probative of a
misdemeanor's seriousness.'' (footnote and internal quotation marks
omitted)). Such considerations are necessarily unrelated to the
seriousness of the actual crime, and the sentence imposed is ``not the
most accurate or salient factor to consider in determining the
seriousness of an offense.'' Matter of N-A-M-, 24 I&N Dec. at 343; see
also Holloway, 948 F.3d at 175 n.12 (stating that the penalty imposed
may be more reflective of how a sentencing judge viewed an offender
than the offense itself).
The Departments therefore reject recommendations to consider the
sentence imposed when determining whether a conviction is a felony, as
opposed to the NPRM's proposal to consider the maximum possible
sentence associated with a given offense. The Departments are persuaded
by the reasoning of the U.S. Court of Appeals for the Third Circuit,
which recognized that, in cases where the analysis centers around an
offense, and not the offender (as in the ``particularly serious crime''
analysis), ``the maximum punishment is a more appropriate data point
because it provides insight into how a state legislature views a
crime--not how a sentencing judge views an individual.'' Holloway, 948
F.3d at 175 n.12. Thus, the Departments continue to believe that
lengthier maximum sentences are associated with more serious offenses
that appropriately should have consequences when determining asylum
eligibility. 84 FR at 69646.
Furthermore, as noted above, the Departments are acting within
their designated authority pursuant to section 208(b)(2)(C) of the Act
(8 U.S.C. 1158(b)(2)(C)) (authority to establish additional limitations
and conditions on eligibility for asylum) to designate felonies, as
defined in the rule, as disqualifying offenses for purposes of asylum
eligibility. See section II.C.2.a.i. Assuming, arguendo, that the
commenters are correct that felonies as defined by the final rule do
not necessarily reflect an alien's dangerousness, the Departments'
authority to set forth additional limitations and conditions on asylum
eligibility under this provision requires only that such conditions and
limitations be consistent with section 208 of the Act (8 U.S.C. 1158).
See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) (``The Attorney General
may by regulation establish additional limitations and conditions,
consistent with this section, under which an alien shall be ineligible
for asylum under paragraph (1).''). Unlike the designation of
particularly serious crimes, there is no requirement that the aliens
subject to these additional conditions or limitations first meet a
particular dangerousness threshold. Compare id., with INA
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii)
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General
may designate by regulation offenses'' for which an alien would be
considered ``a danger to the community of the United States'' by virtue
of having been convicted of a ``particularly serious crime''). Instead,
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad
discretion on the Attorney General and the Secretary to establish a
wide range of conditions on asylum eligibility, and the designation of
felonies as defined in the rule as an additional limitation on asylum
eligibility is consistent with the rest of the statutory scheme. For
example, Congress's inclusion of other crime-based bars on eligibility
demonstrates the intent to allow the Attorney General and Secretary to
exercise the congressionally provided authority to designate additional
types of criminal offenses or related behavior as bars to asylum
eligibility. See INA 208(b)(2)(A)(ii), (iii) (particularly serious
crime and serious nonpolitical crime) (8 U.S.C. 1158(b)(2)(A)(ii),
(iii)). Indeed, by expressly including ``serious nonpolitical crimes''
as a statutory basis for ineligibility, Congress indicated that
``particularly serious crimes'' need not be the only crime-based bar on
asylum
[[Page 67218]]
eligibility. And by further excluding from eligibility aliens who
engage in certain harmful conduct, regardless of whether those aliens
pose a danger to the United States, see INA 208(b)(2)(A)(i) (persecutor
bar) (8 U.S.C. 1158(b)(2)(A)(i)), Congress indicated that
``dangerousness'' need not be the only criterion by which eligibility
for asylum is to be determined.
b. Alien Smuggling or Harboring
Comment: Commenters raised several concerns with respect to the
NPRM's proposed bar to asylum eligibility for aliens convicted of
harboring or smuggling offenses under sections 274(a)(1)(A) and (a)(2)
of the Act (8 U.S.C. 1324(a)(1)(A), (a)(2)). See 8 CFR 208.13(c)(6)(i),
1208.13(c)(6)(i) (proposed).
First, commenters asserted that the NPRM improperly broadened the
existing statutory bar to asylum for many individuals who have been
convicted of alien smuggling or harboring under sections 274(a)(1)(A)
and (a)(2) of the Act (8 U.S.C. 1324(a)(1)(A), (a)(2)). Specifically,
commenters noted that such convictions already constitute aggravated
felonies under the Act that would bar an alien from eligibility for
asylum,\18\ ``except in the case of a first offense for which the alien
has affirmatively shown that the alien committed the offense for the
purpose of assisting, abetting, or aiding only the alien's spouse,
child, or parent (and no other individual).'' See INA 101(a)(43)(N) (8
U.S.C. 1101(a)(43)(N)). Commenters opposed the NPRM, asserting that it
improperly proposed removing the limited exception to this bar and
imposing a blanket bar against anybody convicted of such an offense.
Commenters asserted that adjudicators should have the discretion to
decide whether individuals convicted of such offenses, who are not
already statutorily precluded because their convictions are not
considered aggravated felonies, should be barred from asylum.
---------------------------------------------------------------------------
\18\ A conviction for an aggravated felony is automatically
considered a conviction for a particularly serious crime that would
bar an alien from asylum eligibility under section 208(b)(2)(A)(ii)
of the Act (8 U.S.C. 1158(b)(2)(A)(ii)). INA 208(b)(2)(B)(i) (8
U.S.C. 1158(b)(2)(B)(i)).
---------------------------------------------------------------------------
Commenters also asserted that the proposed limitation undermined
congressional intent. Specifically, commenters stated that Congress
intended to make asylum available to those present in the United
States, without regard to how they entered, and would not have intended
to bar from asylum first-time offenders who were convicted for helping
their family members escape persecution. See INA 208(a)(1) (8 U.S.C.
1158(a)(1)) (providing that an alien ``who arrives in the United States
(whether or not at a designated port of arrival * * *)'' may apply for
asylum in accordance with the rest of the section). Commenters stated
that this congressional intent is demonstrated by the fact that
Congress did not consider such offenses to be aggravated felonies and
thus, in turn, particularly serious crimes that would bar asylum
eligibility.
Commenters also asserted that the proposed limitation undermined
UNHCR's recognition that aliens must sometimes commit crimes ``as a
means of, or concomitant with, escape from the country where
persecution was feared,'' and that the fear of persecution should be
considered a mitigating factor when considering such convictions.
However, the commenters did not elaborate on how this assertion
pertains to aliens who commit crimes concomitant with another person's
escape from a country where persecution may be feared.
Commenters asserted that the Departments failed to properly explain
how all smuggling and harboring convictions under section 274 of the
Act (8 U.S.C. 1324) reflected a danger to the community that should
result in a categorical bar to asylum.
Numerous commenters stated that they opposed the proposed
limitation because it unfairly penalized asylum seekers for helping
their family members, such as minor children and spouses, to come to
the United States for any reason, including to escape from persecutors,
traffickers, or abusers. Commenters stated that the proposed bar would
force family members to choose between their loved ones remaining in
danger in their countries of origin and themselves or their family
being barred from asylum and returned to their persecutors. At least
one commenter stated that the Departments illogically concluded that
the hazard posed to a child or spouse being smuggled is greater than
the harm the same child or spouse would face in the country of origin.
At least one commenter suggested that children in particular would
be harmed by the proposed bar because children are often derivatives on
their parents' asylum application and may have nobody else to care for
them in the United States if their parents are deported. Commenters
also stated that asylum seekers often travel to the United States in
family units and that some types of persecution are ``familial by
nature, culture, and law.'' Commenters suggested that the proposed
limitation would undermine the sanctity of the family and eliminate
family reunification options, which would result in permanent
separation of families.
Commenters asserted that survivors of domestic violence who are
forced to flee to the United States without their children should not
be barred from asylum for trying to later reunite the family.
Commenters also objected to the Departments' assertion that
families could present themselves at the United States border, stating
that this may not be possible due to recently implemented policies and
regulations. Some commenters asserted that the proposed bar ``is
particularly insidious'' in light of documents \19\ that they claimed
revealed efforts to utilize smuggling prosecutions against parents and
caregivers as part of a strategy to deter families from seeking asylum
in the United States and that the NPRM proposed an expansion of those
efforts.
---------------------------------------------------------------------------
\19\ Commenters cited Ryan Devereaux, Documents Detail ICE
Campaign to Prosecute Migrant Parents as Smugglers, The Intercept
(Apr. 29, 2019), https://theintercept.com/2019/04/29/ice-documents-prosecute-migrant-parents-smugglers/ (describing how, in May 2017,
DHS allegedly set out to target parents and family members of
unaccompanied minors for prosecution).
---------------------------------------------------------------------------
At least one commenter stated that the proposed bar, in addition to
the above-described policies, would harm good Samaritans who provide
humanitarian aid to migrants traversing deserts with harsh conditions.
At least one commenter expressed concerns that existing prohibitions
against harboring, which include ``transportation,'' could be applied
to punish those who engage in routine conduct like driving someone to
work or to a doctor's appointment. See INA 274(a)(1)(A)(iii) (8 U.S.C.
1324(a)(1)(A)(iii)) (establishing criminal penalties for an individual
who ``conceals, harbors, or shields from detection [or attempts to do
so], [an] alien in any place, including * * * any means of
transportation'').
Commenters also generally asserted that the proposed limitation
would multiply the harms that asylum seekers face in coming to the
United States.
Response: The Departments disagree with comments suggesting that
the additional limitation on eligibility for asylum for aliens who have
been convicted of bringing in or harboring certain aliens pursuant to
sections 274(a)(1)(A), (2) of the Act (8 U.S.C. 1324(a)(1)(A), (2)) is
inappropriate or unlawful.
The Departments reject commenters' concerns that the additional
limitation is an unlawful expansion of existing bars to asylum
eligibility set forth at
[[Page 67219]]
section 101(a)(43)(N) of the Act (8 U.S.C. 1101(a)(43)(N)). It is
within the Departments' delegated authority to set forth additional
limitations on asylum eligibility. See INA 208(b)(2)(C) (8 U.S.C.
1158(b)(2)(C)). In other words, the Departments may expand upon the
existing grounds for ineligibility and the disqualifying offenses, even
when those or similar grounds have already been assigned immigration
consequences, and the Departments have done so in this rulemaking. Cf.
Hawaii, 138 S. Ct. 2411-12 (holding that Congress ``did not implicitly
foreclose * * * tighter restrictions,'' even in circumstances in which
those restrictions concerned a subject ``similar'' to the one that
Congress ``already touch[ed] on in the INA'').
The Departments disagree with commenters that adjudicators should
have the discretion to determine whether aliens who have been convicted
of offenses under sections 274(a)(1)(A), (2) of the Act (8 U.S.C.
1324(a)(1)(A), (2)) should be eligible for asylum. Convictions for such
offenses are serious and harmful. As noted in the NPRM, even first-time
alien smuggling offenses display a serious disregard for U.S.
immigration law and pose a potential hazard to smuggled family members,
which often include a vulnerable child or spouse. 84 FR at 69648. And
as also noted in the NPRM, the Act already bars most individuals who
have been convicted of this offense from asylum eligibility, thus
demonstrating congressional recognition of the seriousness of such
offenses. Id. at 69647. Accordingly, the Departments have concluded
that no aliens who have been convicted of such offenses should merit
the discretionary benefit of asylum.
The Departments disagree with commenters that an additional
limitation on eligibility for aliens who have been convicted of alien
smuggling or harboring offenses contravenes the ``whether or not at a
designated port of arrival'' language in the asylum statute at section
208(a)(1) of the Act (8 U.S.C. 1158(a)(1)). The Departments stress that
this additional limitation has no bearing on the asylum applicant's
manner of entry; rather it involves the asylum applicant's conduct with
respect to unlawful entry of others. Thus, the Departments do not
further address these comments.
Comments concerning statements or guidance from UNHCR are
misplaced. UNHCR's interpretations of or recommendations regarding the
Refugee Convention and Refugee Protocol ``may be a useful
interpretative aid,'' but they are ``not binding on the Attorney
General, the BIA, or United States courts.'' Aguirre-Aguirre, 526 U.S.
at 427. Indeed, as noted already, ``the Handbook itself disclaims such
force, explaining that `the determination of refugee status under the
1951 Convention and the 1967 Protocol * * * is incumbent upon the
Contracting State in whose territory the refugee finds himself.' '' Id.
at 427-28.
The Departments disagree with commenters who stated that the
Departments failed to explain how all smuggling and harboring
convictions reflected a danger to the community that should result in a
categorical bar to asylum.\20\ The Departments believe that they
adequately explained their reasoning in the NPRM that such offenses
place others, including children, in potentially hazardous situations
that could result in injury or death, and that they reflect a flagrant
disregard for immigration laws. As a result, those people who commit
these offenses present a danger to the community. 84 FR at 69648.
---------------------------------------------------------------------------
\20\ In addition, the Departments note that some commenters
agreed with the Departments' determination regarding the
dangerousness of these offenses. For example, one organization
stated that ``the conduct required for such a conviction
demonstrates contempt for U.S. immigration law and a disregard for
the value of human life.''
---------------------------------------------------------------------------
Additionally, as stated above, the Departments have designated such
alien smuggling or harboring offenses as discrete bases for
ineligibility pursuant to the authority provided by section
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) (authority to
establish additional limitations and conditions on eligibility for
asylum). Assuming, arguendo, that commenters are correct that the
offenses designated by the rule do not accurately reflect an alien's
dangerousness, the Departments' authority to set forth additional
limitations and conditions on asylum eligibility under this provision
requires only that such conditions and limitations be consistent with
section 208 of the Act (8 U.S.C. 1158). See INA 208(b)(2)(C) (8 U.S.C.
1158(b)(2)(C)) (``The Attorney General may by regulation establish
additional limitations and conditions, consistent with this section,
under which an alien shall be ineligible for asylum under paragraph
(1).''). Unlike the designation of particularly serious crimes, there
is no requirement that the aliens subject to the conditions or
limitations meet a threshold of dangerousness. Compare id., with INA
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii)
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General
may designate by regulation offenses'' for which an alien would be
considered ``a danger to the community of the United States'' by virtue
of having been convicted of a ``particularly serious crime''). Instead,
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad
discretion on the Attorney General and the Secretary to establish a
wide range of conditions on asylum eligibility, and the designation of
the alien smuggling and harboring offenses included in the rule as an
additional limitation on asylum eligibility is consistent with the rest
of the statutory scheme. For example, Congress's inclusion of other
crime-based bars to asylum eligibility demonstrates the intent to allow
the Attorney General and Secretary to exercise the congressionally
provided authority to designate additional types of criminal offenses
or related behavior as bars to asylum eligibility. See INA
208(b)(2)(A)(ii), (iii) (particularly serious crime and serious
nonpolitical crime) (8 U.S.C. 1158(b)(2)(A)(ii), (iii)). And, as
explained previously, Congress's inclusion of statutory bars on
eligibility for aliens who engage in certain harmful conduct or commit
certain types of crimes that are not ``particularly serious,'' see INA
208(b)(2)(A)(i), (iii) (8 U.S.C. 1158(b)(2)(A)(i), (iii)), demonstrates
that the ``dangerousness'' associated with the conduct is not the sole
criterion by which the Departments may consider whether an alien should
be eligible for asylum.
The Departments disagree that this rule would undermine family
values or particularly harm children. The Departments believe that the
rule helps families and children by discouraging the dangerous
practices of alien smuggling and harboring. The Departments disagree
with commenters' assertions that current administrative policies or
practices prevent families from presenting themselves at the border. In
any event, commenters' concerns referencing such policies or practices
are outside the scope of this rulemaking.
Finally, regarding commenters' concerns for good Samaritans, the
Departments note again that the bar requires a conviction for it to
apply in a particular case. As a result, an individual who leaves
provisions or other assistance for individuals traversing the harsh
terrain at the southern border would not be ineligible for asylum under
this bar unless he or she is in fact prosecuted and convicted. As with
the other bars, the Departments understand that the individual
circumstances surrounding each offense will vary and that some cases
may involve mitigating circumstances, but
[[Page 67220]]
the Departments find that in the context of asylum eligibility,
adjudicators should not look behind a conviction to readjudicate an
alien's criminal culpability. Although the individual circumstances
behind an alien's prosecution may vary, the Departments have concluded
that, to promote adjudicative efficiency, it is appropriate to provide
a clear standard that defers to the original prosecutor's determination
to pursue a conviction of the alien for his or her conduct, as well as
the criminal court's existing determination of proof beyond a
reasonable doubt that the alien engaged in the conduct.
c. Illegal Reentry
Comment: Commenters specified several reasons for opposing the
NPRM's proposed limitation on eligibility for asylum for aliens
convicted of illegal reentry under section 276 of the Act (8 U.S.C.
1326). See 8 CFR 208.13(c)(6)(i), 1208.13(c)(6)(i) (proposed). Under
section 276(a) of the Act (8 U.S.C. 1326(a)), aliens who unlawfully
reenter the United States after having been previously removed are
subject to fines and to a term of imprisonment of two years or less.
Section 276(b) of the Act (8 U.S.C. 1326(b)) describes certain aliens,
such as those who have been removed after commission of an aggravated
felony, who face significantly higher penalties for unlawfully
reentering the United States after previously having been removed and
authorizes sentences of imprisonment up to 20 years as possible
penalties.
Some commenters asserted that the Departments improperly concluded
that aliens who have been convicted of such offenses are per se dangers
to the community, as recidivist offenders of the law, because the NPRM
did not consider whether an alien's prior offenses were serious. See 84
FR at 69648.
Commenters asserted that the proposed limitation would violate
Article 31(1) of the Refugee Convention, which generally prohibits
imposing penalties based on a refugee's manner of entry or presence in
the country. Commenters stated that this is a critical principle of the
Convention because ``it recognizes that refugees often have little
control over the place and manner in which they enter the country where
they are seeking refuge.'' Commenters stated that the NPRM did not
sufficiently explain how the proposed limitation was consistent with
the Convention.
Commenters also asserted that the proposed limitation undermined
congressional intent and was not consistent with other provisions in
the Act. Specifically, commenters stated that Congress, in accordance
with international treaty obligations, has ``clearly supported the
right to claim asylum anywhere on the U.S. border or at a land, sea, or
air port of entry'' for almost 40 years. The commenters cited the
Refugee Act, where, they stated, Congress authorized asylum claims by
any foreign national ``physically present in the United States or at a
land border or port of entry.'' The commenters stated that Congress
later expressly reaffirmed this position in enacting section 208(a)(1)
of the Act (8 U.S.C. 1158(a)(1)), which states 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 * * *)'' may
apply for asylum. Commenters believed that this provision ``reflected
Congress's ongoing intent to comply with international law, as well as
its recognition that allowing an applicant for refugee status to assert
a claim for asylum at any point along a land border is a necessary
component of essential refugee protections.''
Commenters also asserted that the proposed limitation was
inconsistent with the Act because it would treat all immigration
violations as just as serious as those violations that should fall
under the particularly serious crime bar, thus rendering meaningless
the limiting language of ``particularly serious crimes'' in the
statute. See INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)).
Commenters asserted that the proposed limitation was inconsistent
with any of the other bars previously recognized by the BIA or the
circuit courts because the crime of illegal reentry under section 276
of the Act (8 U.S.C. 1326) has no element of danger or violence to
others and has no victim.
Commenters stated that the BIA and the circuit courts have also
recognized that an alien's manner of entry should have little effect on
eligibility for asylum. See, e.g., Hussam F. v. Sessions, 897 F.3d 707,
718 (6th Cir. 2018) (holding that it was an abuse of discretion to deny
asylum as a matter of discretion when the only negative factor was the
alien's ``intentional failure to disclose that his passport was
obtained in a non-traditional manner''); Zuh v. Mukasey, 547 F.3d 504,
511 n.4 (4th Cir. 2008) (``When an alien uses fraudulent documents to
escape imminent capture or further persecution, courts and [immigration
judges] may give this factor little to no weight.''); Huang v. INS, 436
F.3d 89, 100 (2d Cir. 2006) (``As with peripheral embellishments, if
illegal manner of flight and entry were enough independently to support
a denial of asylum, we can readily take notice, from the facts in
numerous asylum cases that come before us, that virtually no persecuted
refugee would obtain asylum. It follows that Wu's manner of entry, on
the facts in this record, could not bear the weight given to it by the
[immigration judge].''); Mamouzian v. Ashcroft, 390 F.3d 1129, 1138
(9th Cir. 2004) (``[I]n order to secure entry to the United States and
to escape their persecutors, genuine refugees may lie to immigration
officials and use false documentation.''); Matter of Pula, 19 I&N Dec.
at 473-74 (holding that the circumvention of the immigration laws is
one factor for consideration).
Commenters stated that asylum seekers are often motivated to
illegally reenter the United States after having been deported to seek
protection from harm rather than for criminal purposes, and that
individuals who legitimately fear returning to their countries of
origin have been criminally prosecuted under section 276 of the Act (8
U.S.C. 1326). Commenters were concerned that the proposed bar would
further criminalize vulnerable individuals fleeing persecution and
would result in denial of meritorious claims for asylum. Commenters
opined that such individuals should not be barred from asylum.
Commenters stated that the Departments did not take into
consideration that trafficking victims may have reentered the United
States without authorization ``either because they were smuggled in by
[a] trafficker, or because they were removed by the U.S., and then
returned to find safety.''
Commenters stated that ``racial and ethnic disparity in the number
of sentenced offenders is even more pronounced in the context of
illegal reentry'' and that ``latinx immigrants are disproportionately
impacted by over-prosecution of illegal reentry offenses and harsh
sentencing of illegal reentry convictions.''
Some commenters described anecdotes of ``clients who have had to
enter the United States without inspection due to cartel kidnappings,
fears of being separated at the border, or misinformation by coyotes.''
One commenter stated that juveniles who were apprehended at the border
and placed in Department of Health and Human Services (``HHS'') Office
of Refugee Resettlement (``ORR'') custody might request to return to
their country
[[Page 67221]]
of origin due to ``detention fatigue.'' The commenter stated that, upon
return, these juveniles might face the same or new persecution, forcing
them to flee once again.
One commenter stated that this proposed limitation was unnecessary
because many convictions under section 276 of the Act (8 U.S.C. 1326)
already qualify as aggravated felonies. INA 101(a)(43)(O) (8 U.S.C.
1101(a)(43)(O)) (providing that ``an offense described in section
1325(a) [illegal entry] or 1326 of this title [illegal reentry]
committed by an alien who was previously deported on the basis of an
[aggravated felony as defined by section 101(a)(43) of the Act (8
U.S.C. 1101(a)(43))]'' is an aggravated felony). Additionally,
commenters stated that the proposed limitation was unnecessary because
individuals who are convicted under section 276 of the Act (8 U.S.C.
1326) are also subject to reinstatement of a prior order of removal
under section 241(a)(5) of the Act (8 U.S.C. 1231(a)(5)), and, thus,
are barred from applying for asylum if the prior order is reinstated.
See INA 241(a)(5) (8 U.S.C. 1231(a)(5)) (stating that an alien whose
``prior order of removal is reinstated * * * is not eligible and may
not apply'' for any relief under the INA); 8 CFR 1208.31(e), (g)(2),
1241.8(e). The commenters suggested that the Departments
inappropriately expanded the bar to categorically exclude anyone
convicted of illegal reentry.
Some commenters stated that the proposed limitation was improper
because underlying removal orders that are the basis for an illegal
reentry conviction are often incorrectly issued and do not withstand
legal scrutiny.
Commenters expressed concern that individuals who attempt illegal
reentry into the United States to flee persecution may have been
previously removed from the United States without being aware of their
right to apply for asylum. Commenters opined that such individuals
``would not have knowingly abandoned their right.'' Commenters also
stated that some individuals may have been prevented from seeking
asylum during prior entries.
Commenters asserted that asylum seekers who illegally reenter could
have been incorrectly found to lack a credible fear in prior credible
fear interviews. Some commenters stated that asylum seekers with
legitimate claims may have been previously removed because they were
unable to establish eligibility for relief without adequate access to
legal representation. Some commenters asserted that there are credible
reports that DHS officers do not comply with requirements to inform
individuals subject to expedited removal of their rights or to refer
those with a fear of return to asylum officers for credible fear
screenings, even when requested, and that DHS officers have engaged in
harassment or the spread of misinformation that interferes with
individuals' abilities to pursue asylum. One commenter stated that
there is a higher risk that credible fear interviews may result in
erroneous denial because border patrol officers, not asylum officers,
have been conducting asylum interviews. Commenters proposed that the
illegal reentry bar to asylum eligibility would ``essentially punish
asylum seekers for the failure of DHS officers to follow the agency's
own rules.'' Commenters stated that preserving discretion, rather than
implementing a categorical bar, would ensure that meritorious asylum
claims are heard and correct previous errors.
Some commenters stated that the Departments did not take into
account that illegal reentry ``may be the only possible option'' for
asylum applicants. Commenters asserted that ``current U.S. violations
of international and domestic law regarding access to territory''
further intensified this proposition. Commenters stated that they
believed that a number of the Executive Branch's administrative
policies--such as (1) ``metering'' at the border; (2) the Migrant
Protection Protocols (``MPP''), see DHS, Policy Guidance for
Implementation of the Migrant Protection Protocols (Jan. 25, 2019),
https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf; (3) the
``third-country transit bar,'' see Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019); and (4) international
asylum cooperative agreements, see Implementing Bilateral and
Multilateral Asylum Cooperative Agreements Under the Immigration and
Nationality Act, 84 FR 63994 (Nov. 19, 2019)--drive asylum seekers to
enter illegally rather than wait to present themselves at a port of
entry, which in turn subjects them to the illegal reentry bar.
Commenters suggested that, given these policies, the Departments
incorrectly asserted that aliens who have previously been removed from
the United States may present themselves at a port of entry. See 84 FR
at 69648. One commenter suggested that many individuals who are driven
to enter the United States unlawfully due to these policies do so with
the intention of turning themselves in to U.S. Border Patrol
authorities. Commenters also raised concerns that the proposed
limitation would ``condemn to persecution those who are simply trying
to enter the [United States] to reunite with their family and
community.'' Commenters were also concerned that individuals with
convictions under section 276 of the Act (8 U.S.C. 1326) would be
punished twice for the same crime by also being barred from asylum.
Some commenters stated that the NPRM unfairly punished individuals
who have fled persecution multiple times or who have faced persecution
arising after they had been removed, resulting in multiple unlawful
entries. Commenters stated that refugee protection principles upon
which asylum law is based require newly arising claims to be examined.
Commenters specifically stated that, in proposing the illegal reentry
bar, the Departments did not consider that immigrant survivors of
violence who are removed to their countries of nationality may face
violent retaliation and possibly death at the hands of their abusers or
perpetrators and may flee the same perpetrators of domestic and sexual
violence multiple times. Commenters asserted that a discretionary
assessment was necessary to ensure that meritorious claims are heard.
Response: The Departments disagree with commenters who oppose the
rule's additional limitation on asylum eligibility for those who have
been convicted of illegal reentry under section 276 of the Act (8
U.S.C. 1326). The Departments have appropriately exercised their
delegated authority to impose additional limitations on asylum
eligibility per section 208(b)(2)(C) of the Act (8 U.S.C.
1158(b)(2)(C)).
First, the Departments clarify that this rule, like the proposed
rule, designates these offenses as additional limitations on asylum
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\21\
See 8 CFR 208.13(c)(6), 1208.13(c)(6). Regardless of commenters'
concerns regarding the dangerousness of these crimes, section
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) offers a discrete
basis
[[Page 67222]]
under which the Departments may designate these offenses as bases for
ineligibility. Although the ``particularly serious crime'' designation
would justify the conclusion that an alien is dangerous, see section
208(b)(2)(A)(ii) of the Act (8 U.S.C. 1158(b)(2)(a)(ii)) (``the alien,
having been convicted by final judgment of a particularly serious
crime, constitutes a danger to the community of the United States''),
the Attorney General's and the Secretary's authorities to set forth
additional limitations and conditions on asylum eligibility under
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) require only
that such limitations or conditions be ``consistent with [section 208
of the Act (8 U.S.C. 1158)].'' Thus, even assuming, arguendo, that the
offenses designated by the final rule do not necessarily reflect an
alien's dangerousness, the Attorney General and the Secretary retain
the authority to promulgate the new bar. Accordingly, the Departments
are unpersuaded by commenters' concerns regarding whether these
offenses may not pose a danger to the community because such a finding
is not required under section 208(b)(2)(C) of the Act (8 U.S.C.
1158(b)(2)(C)).
---------------------------------------------------------------------------
\21\ Although the Departments at times cited both the authority
at section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii))
to designate offenses as a particularly serious crime and the
authority at section 208(b)(2)(C) of the Act (8 U.S.C.
1158(b)(2)(C)) to establish additional limitations on asylum
eligibility in support of the designation of a subset of the
included bars in the proposed rule, see 84 FR at 69645-54, the
references to the authority to designate additional particularly
serious crimes highlighted an alternative basis for the inclusion of
most of the new bars to asylum eligibility and sought to elucidate
the serious nature of these crimes and the Departments' reasoning
for including these offenses in the new provisions. Further
discussion of the interaction of the rule with the ``particularly
serious crime'' bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------
With respect to commenters who expressed concern that the proposed
limitation would violate Article 31 of the Refugee Convention, as well
as undermine congressional intent and established case law, the
Departments note that the rule's limitations on eligibility for asylum
are consistent with Article 31 of the Refugee Convention. Courts have
held, in the context of upholding the bar on eligibility for asylum in
reinstatement proceedings under section 241(a)(5) of the INA, 8 U.S.C.
1231(a)(5), that limiting the ability to receive asylum does not
constitute a prohibited ``penalty'' under Article 31(1) of the Refugee
Convention.\22\ Cazun, 856 F.3d at 257 & n.16; Mejia, 866 F.3d at 588.
---------------------------------------------------------------------------
\22\ The Ninth Circuit recently indicated--erroneously, in the
view of the Departments--that removal can be considered a
``penalty'' under Article 31(1) of the Refugee Convention. E. Bay
Sanctuary Covenant v. Trump, 950 F.3d 1242, 1276 (9th Cir. 2020). In
doing so, however, the Ninth Circuit cited the Supreme Court's
decision in Padilla, 559 U.S. at 364, which discussed immigration
penalties in terms of criminal proceedings, not Article 31(1) of the
Refugee Convention. Further, the Ninth Circuit noted its observation
solely in the context of limiting asylum eligibility based on manner
of entry, and the court did not reach other asylum restrictions such
as this rule.
---------------------------------------------------------------------------
The proposed rule is also consistent with Article 34 of the Refugee
Convention, concerning assimilation of refugees, as implemented by
section 208 of the INA, 8 U.S.C. 1158. Section 208 of the INA reflects
that Article 34 is precatory and not mandatory, and accordingly does
not provide that all refugees shall receive asylum. See Cardoza-
Fonseca, 480 U.S. at 441; Garcia, 856 F.3d at 42; Cazun, 856 F.3d at
257 & n.16; Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); R-S-
C, 869 F.3d at 1188; Ramirez-Mejia, 813 F.3d at 241. As noted above,
Congress has long recognized the precatory nature of Article 34 by
imposing various statutory exceptions and by authorizing the creation
of new bars to asylum eligibility through regulation. Courts have
likewise rejected arguments that other provisions of the Refugee
Convention require every refugee to receive asylum. Courts have also
rejected the argument that Article 28 of the Refugee Convention,
governing issuance of international travel documents for refugees
``lawfully staying'' in a country's territory, mandates that every
person who might qualify for withholding must also be granted asylum.
Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 1188. Additionally, as noted
above, the United States implemented the non-refoulement obligation of
Article 33(1) of the Refugee Convention through the withholding-of-
removal provision at section 241(b)(3) of the Act (8 U.S.C.
1231(b)(3)), and the non-refoulement obligation of the CAT under the
CAT regulations, rather than through the asylum provisions at section
208 of the Act (8 U.S.C. 1158). See Cardoza-Fonseca, 480 U.S. at 429,
440-41. Individuals who may be barred from asylum by the rule remain
eligible to seek withholding of removal and protection under CAT in
accordance with non-refoulement obligations.
Additionally, as noted in the NPRM, the statutory bar on applying
for asylum and other forms of relief when an order of removal is
reinstated has been upheld by every circuit to consider the question.
84 FR at 69648; see Garcia v. Sessions, 873 F.3d 553, 557 (7th Cir.
2017), cert. denied, 138 S. Ct. 2648 (2018); R-S-C, 869 F.3d at 1189;
Mejia, 866 F.3d at 587; Garcia, 856 F.3d at 30; Cazun, 856 F.3d at 260;
Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016); Jimenez-
Morales v. U.S. Att'y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016);
Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015); Herrera-
Molina v. Holder, 597 F.3d 128, 137-38 (2d Cir. 2010). This reflects a
broad understanding that individuals who repeatedly enter the United
States unlawfully should not be eligible for the discretionary benefit
of asylum and that limiting such eligibility does not conflict with
section 208(a) of the Act (8 U.S.C. 1158(a)).
The Departments disagree with commenters' assertions that current
administrative practices prevent asylum seekers from lawfully
presenting themselves at the border. In any event, commenters' concerns
referencing such policies or practices are outside the scope of this
rulemaking.
With respect to commenters' concerns that the rule should not apply
to those who unlawfully reentered the United States because of their
desire to be reunited with family members living in the United States
or to individuals who have been victims of trafficking or smuggling,
the Departments believe that evaluations of mitigating factors or
criminal culpability based on motives are more appropriately reserved
for criminal proceedings. As stated in the NPRM, the Departments
believe it is reasonable to limit eligibility for asylum to exclude
aliens convicted of illegal reentry because this type of offense
demonstrates that an alien has repeatedly flouted the immigration laws.
See 84 FR at 69648. The Departments have a legitimate interest in
maintaining the orderly and lawful admission of aliens into the United
States. Aliens convicted of illegal reentry have engaged in conduct
that undermines that goal.
In response to commenters who suggested that the rule would result
in denial of meritorious claims, the Departments note that those with a
legitimate fear of persecution or torture may still apply for statutory
withholding of removal or CAT withholding and deferral, forms of
protection that this final rule does not affect. Additionally, these
commenters misapprehend the purpose of this rulemaking. Awarding the
discretionary benefit of asylum to individuals described in this rule
would, among other things, encourage lawless behavior and subject the
United States and its communities to the dangers associated with the
crimes or conduct in which such persons have engaged. The Departments
have appropriately exercised their authority to impose additional
limitations on asylum eligibility to bar such individuals from that
relief. Accordingly, those persons do not have meritorious asylum
claims. By definition, if an applicant is ineligible for the
discretionary benefit of asylum because of this rule, or any other
statutory or regulatory limitation, he or she does not have a
meritorious claim for asylum.
The Departments disagree with commenters' concerns that individuals
with convictions under section 276 of the INA (8 U.S.C. 1326) would be
punished twice for the same crime by
[[Page 67223]]
being barred from asylum. The Departments emphasize that immigration
proceedings are civil in nature, and thus denial of relief from removal
is not a punishment, particularly with respect to a discretionary
benefit such as asylum. Cf. Mejia, 866 F.3d at 588 (``We therefore
perceive no basis for concluding that depriving aliens, upon illegal
re-entry, additional opportunities to apply for discretionary relief
constitutes a `penalty.'''). In addition, commenters' logic would have
far-reaching implications that would undermine the entire statutory
scheme that imposes any immigration consequences on account of an
alien's criminal convictions, including eligibility for forms of relief
or removability from the United States, see, e.g., INA 212(a)(2) (8
U.S.C. 1182(a)(2)) (criminal grounds of inadmissibility); 237(a)(2) (8
U.S.C. 1227(a)(2)) (criminal grounds of deportability), but there has
never been any reason to question the framework in such a manner, see,
e.g., Nijhawan, 557 U.S. at 36 (analyzing whether convictions for
certain crimes constituted aggravated felonies for purposes of the INA
without questioning whether immigration penalties could be imposed for
those convictions).
d. Criminal Street Gang Activity
Comment: Several commenters opposed the imposition of a bar to
asylum eligibility based on the furtherance of criminal street gang
activity.
As an initial matter, commenters noted that, under the current
asylum system, a conviction for an offense categorized as a gang-
related crime would bar an individual from asylum in most cases.
However, commenters expressed concern that the NPRM extends culpability
for gang-related crime beyond offenses categorized as gang-related
crimes and would also bar individuals from asylum if an adjudicator
``knows or has reason to believe the crime was committed in furtherance
of criminal street gang activity.'' Commenters asserted that the
standard for this bar is so broad that individuals not associated with
gangs could be included in this category and barred from asylum.
At the same time, commenters argued that the proposed rule does not
sufficiently detail how an individual qualifies as a street gang member
or how an activity is to be categorized as gang-related. As a result,
commenters expressed concern that the proposed rule granted immigration
adjudicators too much latitude to determine whether a crime fits into
the vague category of supporting, promoting, or furthering the activity
of a criminal street gang. Commenters were concerned that information
in databases of gang-related crimes or factors such as where the
criminal activity occurred may lead to improper categorization of gang-
related activity. Commenters were similarly concerned that the bar does
not account for the circumstances of the offense, such as whether
coercion or threats forced the asylum applicant to undertake the
criminal activity. Commenters asserted that immigration adjudicators
should, at a minimum, be permitted to consider such factors as coercion
or duress prior to granting or denying asylum.
Commenters asserted that the ``reason to believe'' standard is
ultra vires and unconscionably limits asylum eligibility for those most
in need of protection. Commenters asserted that the ``reason to
believe'' standard grandly expands the number of convictions for which
an eligibility analysis is required and would ``sweep[] in even petty
offenses that would otherwise not trigger immigration consequences.''
Commenters asserted, moreover, that the ``reason to believe'' standard
for determining whether there is a sufficient link between the
underlying conviction and the gang-related activity is ``overly broad
and alarmingly vague.''
Additionally, commenters argued that the ``reason to believe''
standard places the adjudicator in the role of a second prosecutor and
requires the adjudicator to decide, without the benefit of a criminal
trial and attendant due process of law, whether a crime could have been
potentially gang-related. At the same time, commenters stated that
immigration adjudicators, who are not criminologists, sociologists, or
criminal law experts, would be required to analyze past misdemeanor
convictions to determine whether there is a link to gang activity,
regardless of whether the individual was also charged or convicted of a
street gang offense.
Commenters cited concerns regarding the admission of ``all reliable
evidence'' to determine whether there was ``reason to believe'' that
the conduct implicated gang-related matters. They averred that this
phrase was potentially limitless and that its scope required both
parties to present fulsome arguments regarding an offense's possible
gang connections. Moreover, commenters asserted that the proposed rule
fails to articulate what type of evidence or non-adjudicated conduct
may be considered by an adjudicator when determining whether a bar to
asylum applies.
In addition, commenters expressed concern that permitting
adjudicators to rely on ``all reliable evidence'' will result in
immigration adjudicators relying on any type of evidence, including
police reports, unsubstantiated or subsequently recanted hearsay
statements, and discredited methods of gang identification, such as
gang databases. Commenters asserted that this will result in a
compounded disparate racial impact based on over-inclusion of young
people of color in those gang databases. Commenters asserted that gang
databases are ``notoriously inaccurate, outdated, and infected by
racial bias.'' Additionally, commenters stated that gang databases are
unregulated and that an individual may be included in a database simply
based on ``living in a building or even neighborhood where there are
gang members, wearing certain colors or articles of clothing, or
speaking to people law enforcement believe to be gang members.''
One commenter referenced a decision of the Supreme Judicial Court
of Massachusetts holding that the information contained in gang
databases is hearsay, not independently admissible, and raises serious
Confrontation Clause concerns. Commonwealth v. Wardsworth, 124 NE3d
662, 678-79 & nn.24-25 (Mass. 2019). That commenter also asserted that,
despite the concern expressed by the Supreme Judicial Court of
Massachusetts regarding the use of gang databases, immigration judges
continue to regularly rely on such reports. By relying on such
unreliable evidence, commenters averred, the proposed rule will
exacerbate due process violations already occurring as a result of
unsubstantiated gang ties.
Commenters further noted that, because these databases disparately
affect young people of color, relying on these databases would multiply
the harm already caused by racially disparate policing and racially
disparate rates of guilty pleas to minor offenses. Commenters claimed
that asylum seekers of color are subject to racially disparate
policing, which results in racially disparate rates of guilty pleas to
minor offense, and which also results in this population being
erroneously entered and overrepresented in gang databases. In support
of the inaccuracy of these databases, one commenter cited concerns that
police departments falsify gang affiliations of youth encountered by
police officers. As a result, commenters asserted, the proposed rule
would ``invite extended inquiry into the character of young men of
color'' who
[[Page 67224]]
may otherwise have meritorious asylum claims and who are already
subject to racially suspect policing practices.
Commenters noted that police reports are inherently unreliable in
the absence of the protections offered by the Confrontation Clause of
the Sixth Amendment and the Federal Rules of Evidence, neither of which
apply in immigration court. Regarding the unreliability of evidence,
one commenter provided an example where neither the police officers nor
the alleged victims were required to testify. Without this testimony,
the commenter alleged, the immigration adjudicator would be unable to
determine whether a victim had a motive to lie to the police, whether
the victim later recanted his or her statements, or whether the police
officer misunderstood some critical fact. Moreover, commenters asserted
that, although immigration adjudicators would be unable to rely on
uncorroborated allegations such as those contained in arrest reports,
adjudicators could nevertheless shield denials based on such
information by relying on discretion.
Commenters stated that the proposed rule would exacerbate due
process violations that already occur as a result of unsubstantiated
information about gang ties. Commenters claimed that asylum applicants
are already subjected to wrongful denials of asylum based on
allegations of gang activity made by DHS. Commenters alleged that DHS
relies on unreliable foreign databases and ``fusion'' intelligence-
gathering centers outside of the United States. For example, one
commenter alleged that information regarding gang affiliations gathered
from the fusion intelligence-gathering center in El Salvador has
already been used against asylum seekers, despite having been found to
be inaccurate. At the same time, commenters asserted that immigration
adjudicators routinely premise enforcement, detention, and
discretionary denials of relief on purported gang membership and often
grant deference to gang allegations made by Immigration and Customs
Enforcement (``ICE'') personnel. Commenters asserted that the already
expanded use of gang databases to apprehend and remove foreign
nationals has been widely criticized as an overbroad, unreliable, and
often biased measure of gang membership and involvement.
Additionally, commenters expressed disagreement with the
Departments' position that all gang-related offenses could be
considered as particularly serious crimes. Commenters criticized the
Departments' reliance on statistics from up to 16 years ago to
demonstrate that gang members commit violent crimes and drug crimes.
Commenters disagreed with the Departments' conclusion that all crimes
that may be construed as connected to gang activity are particularly
serious. Commenters asserted instead that it is illogical to argue
that, because gang members may commit some violent crimes and drug
crimes, all crimes committed by anyone remotely connected with a gang
are particularly serious.
Commenters also asserted that the proposed rule will result in
asylum seekers who live in economically distressed areas but who have a
minor criminal conviction, for example for a property crime, being
excluded from protection. Commenters asserted that including even minor
crimes construed as gang-related in the ``particularly serious crime''
bar and preventing those individuals from accessing asylum is
``disingenuous at best, and tinged with racial animus at worst.''
Commenters asserted that this bar would perpetuate racial bias within
the immigration court system.
Commenters asserted that the gang-related-crimes bar should not be
introduced at all due to the complex nature of gang ties and the
frequency with which individuals are mislabeled as being part of a
gang. These commenters argued that the risk of erroneously barring
legitimate asylum seekers from eligibility is too high. Another
commenter noted that it was ``particularly cruel'' to create a bar
related to gang offenses ``in the wake of this Administration's refusal
to countenance gang violence as a ground to asylum.'' Moreover,
commenters asserted that the INA and existing regulations already
permit immigration adjudicators to deny asylum as a matter of
discretion. Adding this new bar based on gang-related activity,
according to these commenters, risks excluding bona fide asylum seekers
from protection without adding any useful adjudicatory tool to the
process.
Commenters noted that previous attempts to expand the grounds of
removal and inadmissibility to include gang membership failed to pass
both houses of Congress. One commenter noted concern that an individual
could be erroneously convicted of a gang-related crime because of the
widespread nature of gang activity in Central America. This commenter
also expressed concern that, because gangs in Central America may act
with impunity and ``often control a corrupt judiciary,'' an individual
could be erroneously convicted of a crime for refusing to acquiesce to
a gang's demands.
Response: As explained further in section II.C.2.a.i, the bar based
on activity related to criminal street gangs is enacted pursuant to the
Attorney General's and the Secretary's designated authorities to
establish additional limitations and conditions on asylum. INA
208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\23\ This authority requires such
conditions and limitations to be consistent with section 208 of the Act
(8 U.S.C. 1158) and does not require that the offenses meet a threshold
of dangerousness or seriousness. Compare INA 208(b)(2)(C) (8 U.S.C.
1158(b)(2)(C)) (``The Attorney General may by regulation establish
additional limitations and conditions, consistent with this section,
under which an alien shall be ineligible for asylum under paragraph
(1)''), with INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)) and INA
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he
Attorney General may designate by regulation offenses'' for which an
alien would be considered a ``danger to the community of the United
States'' by virtue of ``having been convicted by a final judgment of a
particularly serious crime''). Although the Departments have determined
that the included offenses involving criminal street gangs represent
dangerous offenses and that the offenders represent particular dangers
to society, see 84 FR at 69649-50, the Departments would nevertheless
be acting within the authority of section 208(b)(2)(C) of the Act (8
U.S.C. 1158(b)(2)(C)) if commenters are correct that some offenses
included are not connected to dangerousness. Section 208(b)(2)(C) of
the Act (8 U.S.C. 1158(b)(2)(C) confers broad discretion on the
Attorney General and the Secretary to establish a wide range of
conditions on asylum eligibility, and the designation of criminal
street gang-
[[Page 67225]]
related offenses as defined in the rule as an additional limitation on
asylum eligibility is consistent with the rest of the statutory scheme.
For example, Congress's inclusion of other crime-based bars to asylum
eligibility demonstrates the intent to allow the Attorney General and
the Secretary to exercise the congressionally provided authority to
designate additional types of criminal offenses or related behavior as
bars to asylum eligibility. See INA 208(b)(2)(A)(ii), (iii)
(particularly serious crime and serious nonpolitical crime) (8 U.S.C.
1158(b)(2)(A)(ii), (iii)). Moreover, Congress has expressly excluded
from eligibility certain aliens who engage in conduct or commit crimes
of a certain character or gravity, regardless of whether those aliens
are ``dangerous'' to the United States, and regardless of whether those
crimes have been formally designated as ``particularly serious.'' See
INA 208(b)(2)(A)(i), (iii) (8 U.S.C. 1158(b)(2)(A)(i), (iii)). The
Departments have concluded that criminal street gang-related offenses
are sufficiently similar to such conduct and crimes that aliens who
commit such offenses should not be rewarded with asylum and the many
benefits that asylum confers.
---------------------------------------------------------------------------
\23\ The proposed rule preamble cited both the authority at
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to
designate offenses as a particularly serious crime and the authority
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to
establish additional limitations on asylum eligibility in support of
the designation of gang-related crimes as bars to asylum
eligibility. Compare 84 FR at 69650 (``Regardless, criminal street
gangs-related offenses--whether felonies or misdemeanors--could
reasonably be designated as `particularly serious crimes' pursuant
to 8 U.S.C. 1158(b)(2)(B)(ii).''), with id. (``Moreover, even if 8
U.S.C. 1158(b)(2)(B)(ii) did not authorize the proposed bar, the
Attorney General and the Secretary would propose designating
criminal gang-related offenses as disqualifying under 8 U.S.C.
1158(b)(2)(C).''). Nevertheless, the authority at section
208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) aligns with the regulatory
text and was used to support all of the categories of bars set out
in the rule.
---------------------------------------------------------------------------
Further, the Departments disagree with comments asserting the
criminal street gang-related offenses are not necessarily indicative of
a danger to the United States. See 84 FR at 69650. Specifically, the
Departments believe that such offenses are strong indicators of
recidivism and ongoing, organized criminality. Id. Based on the data
and research articulated in the NPRM, the Departments believe that
individuals who enter the United States and are then convicted of a
crime related to criminal street gang activity present an ongoing
danger to the community and should therefore be ineligible for asylum.
Significantly, the Departments reject commenters' assertions that the
Departments relied on data that was over 16 years old. Although one of
the reports relied upon in the NPRM was published in 2004, additional
studies and information were cited ranging from 2010 to 2015. See 84 FR
at 69650. Additionally, the White House recently issued a fact sheet
observing that ``[a]pproximately 38 percent of all murders in Suffolk
County, New York, between January 2016 and June 2017'' were linked to a
single criminal gang--MS-13--alone. The White House, Protecting
American Communities from the Violence of MS-13 (Feb. 6, 2020), https://www.whitehouse.gov/briefings-statements/protecting-american-
communities-violence-ms-13/; see also Alan Feuer, MS-13 Gang: 96
Charged in Sweeping Crackdown on Long Island, N.Y. Times (Dec. 20,
2019), https://www.nytimes.com/2019/12/20/nyregion/ms-13-long-island.html; Proc. No. 9928, 84 FR 49187, 49187 (Sept. 13, 2019)
(explaining that the DOJ is working with law enforcement in El
Salvador, Guatemala, and Honduras to ``help coordinate the fight
against MS-13, the 18th Street Gang, and other dangerous criminal
organizations that try to enter the United States in an effort to
ravage our communities,'' and that this partnership ``targets gangs at
the source and works to ensure that these criminals never reach our
borders''); id. (observing that, in 2017 and 2018, ICE officers ``made
266,000 arrests of aliens with criminal records, including those
charged or convicted of 100,000 assaults, nearly 30,000 sex crimes, and
4,000 violent killings''). These more recent examples demonstrate the
continued threat posed by gang-related crime.
The Departments disagree with commenters' assertions that the rule
fails to sufficiently detail how an individual qualifies as a street
gang member or how an activity is to be categorized as a gang-related
event. As an initial matter, the rule does not purport to categorize
individuals as street gang members. Rather, the inquiry is limited into
whether an adjudicator knows or has reason to believe that a prior
conviction for a Federal, State, tribal, or local crime was committed
in support, promotion, or furtherance of criminal street gang activity.
84 FR at 69649. This rule defines ``criminal street gang'' by
referencing how that term is defined in the convicting jurisdiction or,
alternatively, as the term is defined in 18 U.S.C. 521(a). The
Departments believe that the language of the Federal statute conveys
sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices, as do the definitions
in the convicting jurisdictions. This rule leaves the determination of
whether a crime was in fact committed ``in furtherance'' of gang-
related activity to adjudicators in the first instance. As noted in the
NPRM, to the extent that this type of inquiry may lead to concerns
regarding inconsistent application of the bar, the Departments
reiterate that the BIA is capable of ensuring a uniform approach. See 8
CFR 1003.1(e)(6)(i).
In response to commenters who suggested that the rule would result
in denial of meritorious claims, the Departments note that those with
legitimate fear of persecution or torture may still apply for statutory
withholding of removal or protection under the CAT regulations, as
discussed in section II.C.5. In addition, and as explained previously,
these commenters misapprehend the purpose of this rulemaking. The
Departments have concluded that persons subject to the new bars do not
warrant asylum because awarding the discretionary benefit of asylum to
such individuals would encourage lawless behavior, subject the United
States to certain dangers, and otherwise undermine the policies
underlying the statutory framework for asylum. These persons
accordingly do not have meritorious asylum claims. And, because nothing
in the INA precludes the imposition of these new bars, the fact that
these persons' claims might otherwise be meritorious is irrelevant.
Regarding commenters' concerns with the ``reason to believe''
standard articulated in the rule, the Departments note that this
standard is used elsewhere in the INA. For example, when considering
admissibility, immigration judges consider whether there is reason to
believe that the individual ``is or has been an illicit trafficker in
any controlled substance.'' INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)).
In accordance with this provision, courts have upheld findings of
inadmissibility in the absence of a conviction. See Cuevas v. Holder,
737 F.3d 972, 975 (5th Cir. 2013) (holding ``that an alien can be
inadmissible under [INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C))] even
when not convicted of a crime''); Garces v. U.S. Att'y Gen., 611 F.3d
1337, 1345 (11th Cir. 2010) (stating that section 1182(a)(2)(C) of the
Act (8 U.S.C. 1182(a)(2)(C)) renders an alien inadmissible based on a
``reason to believe'' standard, which does not require a conviction);
Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005)
(``Section 1182(a)(2)(C) does not require a conviction, but only a
`reason to believe' that the alien is or has been involved in drug
trafficking.''). The bar on criminal street gang-related activity is
narrower in scope than the inadmissibility charge based on illicit
trafficking in that the bar in this rule still requires a conviction.
As such, the Departments believe that the ``reason to believe''
standard is appropriately applied to the final rule.
Similarly, the ``all reliable evidence'' standard is not a new
standard in immigration proceedings. Immigration judges routinely
consider any relevant evidence provided in removal hearings by either
party. 8 CFR 1240.1(c). Additionally, the BIA held, in the context of
evaluating whether a crime constitutes a particularly serious crime,
[[Page 67226]]
that, once the elements of the offense are examined and found to
potentially bring the offense within the ambit of a particularly
serious crime, the adjudicator may consider all reliable information in
making a ``particularly serious crime'' determination, including but
not limited to the record of conviction and sentencing information.
Matter of N-A-M-, 24 I&N Dec. at 337-38. The Ninth Circuit has held
that the BIA's interpretation in Matter of N-A-M- is reasonable. Anaya-
Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010). Additionally,
various circuit courts have applied the ``all reliable information''
standard articulated in Matter of N-A-M- in considering whether crimes
are particularly serious. See, e.g., Luziga v. Att'y Gen. U.S., 937
F.3d 244, 253 (3d Cir. 2019); Marambo v. Barr, 932 F.3d 650, 655 (8th
Cir. 2019).
The Departments disagree with commenters' concerns about
adjudicators' reliance on arrest reports and uncorroborated
information. As an initial point, most asylum claims are based
significantly on hearsay evidence that is uncorroborated by non-hearsay
evidence. Such evidence, however, does not necessarily make an asylum
claim unreliable or insusceptible to proper adjudication. Adjudicators
assessing asylum applications are well versed in separating reliable
from unreliable information, assigning appropriate evidentiary weight
to the evidence submitted by the applicant and DHS, and determining
whether corroborative evidence needs to be provided. See INA
208(b)(1)(B) (8 U.S.C. 1158(b)(1)(B)). Moreover, this rule does not
provide adjudicators with unfettered discretion; instead, adjudicators
must consider such evidence in the context of making a criminal street
gang determination under the ``reason to believe'' standard. An asylum
officer's assessment of eligibility necessarily must explain the
consideration of the evidence of record as it applies to the evaluation
of bars to asylum and the burden of proof, and it must also explain the
exercise of discretion. Similarly, immigration judges are already
charged with considering material and relevant evidence. 8 CFR
1240.1(c). To make this determination, immigration judges consider
whether evidence is ``probative and whether its use is fundamentally
fair so as not to deprive the alien of due process of law.'' Ezeagwuna
v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (quoting Bustos-Torres v.
INS, 898 F.2d 1053, 1055 (5th Cir. 1990)). Nothing in this rule
undermines or withdraws from this standard. Moreover, the Departments
would not purport to impinge on an adjudicator's evidentiary
determination or direct the result of such a determination. If aliens
have concerns about the reliability of any evidence, aliens may
challenge the reliability of that evidence as part of their arguments
to the adjudicator. As a result, the Departments have concluded that
concerns regarding the reliability of gang databases or other evidence
are more properly addressed in front of the immigration judge or asylum
officer in individual cases.
The Departments disagree with comments that adjudicators should
have the discretion to determine whether factors such as coercion or
duress affected an individual's involvement in criminal street gang-
related activity. The Departments believe that criminal street gang-
related activity is serious and harmful in all circumstances. As stated
in the NPRM, ``[c]riminal gangs of all types * * * are a significant
threat to the security and safety of the American public.'' 84 FR at
69650. Accordingly, the Departments have concluded that aliens who have
been convicted of such offenses do not merit the discretionary benefit
of asylum, even if their gang involvement was potentially the result of
coercion or some other unique circumstance. In addition, the
Departments believe that considerations regarding criminal culpability
for criminal street gang-related offenses would be best addressed
during the individual's underlying criminal proceedings.
Commenters' assertions that the rule will exacerbate harms caused
by racially disparate policing practices or that the result of this
rule will disproportionately affect people of color are outside the
scope of this rulemaking. Cf. San Francisco, 944 F.3d at 803-04 (``Any
effects [of the public charge rule] on [healthcare] entities are
indirect and well beyond DHS's charge and expertise.''). The rulemaking
does not address actual or alleged injustices of the criminal justice
system, as referenced by the commenters. Moreover, the rule was not
racially motivated, nor did racial animus or a legacy of bias play any
role in the publication of the rule. Rather, this final rule is being
published to categorically preclude from asylum eligibility certain
aliens with various criminal convictions because the Departments
determined that individuals engaging in criminal activity that is
related to criminal street gangs present a sufficient danger to the
United States to warrant exclusion from the discretionary benefit of
asylum. To the extent that the rule disproportionately affects any
group referenced by the commenters, any such impact is beyond the scope
of this rule, as this rule was not drafted with discriminatory intent
towards any group, and the provisions of the rule apply equally to all
applicants for asylum.
e. Driving Under the Influence of an Intoxicant
Comment: Commenters opposed the proposed categorical bar to asylum
based on a DUI conviction. Commenters stated that the proposed
categorical bars encompass crimes with a wide range of severity, and
commenters asserted that DUI does not rise to a comparable level of
severity as a particularly serious crime warranting its promulgation as
a categorical bar to asylum. Other commenters similarly stated that,
because DUI does not involve conduct that is necessarily dangerous on
its own, the offense is not serious enough to support a categorical bar
to asylum. Commenters provided examples of allegedly low-level
convictions for DUI, based on examples such as a court concluding that,
when ``the key is in the ignition and the engine is running, a person
`operates' a vehicle, even if that person is sleeping or unconscious,''
State v. Barac, 558 SW3d 126, 130 (Mo. Ct. App. 2018), or when a person
operates a vehicle while under the influence but no injury to another
person results. Accordingly, commenters asserted that DUI is not
necessarily serious or sufficiently dangerous to warrant a categorical
bar. One commenter summarized the concern by stating that offenses
related to DUI are ``excessively overbroad in the convictions and
conduct covered[ ] and are not tailored to identify conduct that is
`serious' or identify individuals who pose a danger to the community.''
Commenters also asserted that creating a blanket categorical bar to
asylum based on a DUI conviction would eliminate the opportunity for
adjudicators to consider the facts before them in exercising
discretion. Commenters stated that adjudicators should consider the
severity of the DUI offense given relevant facts, such as the
applicant's criminal history, the underlying cause of the applicant's
criminal record involving DUI, the applicant's efforts towards
rehabilitation, the length of time passed since the conviction, the
applicant's potential danger to the community, and the applicant's risk
of persecution if returned to his or her home country.
Commenters noted that multiple DUI convictions are not an absolute
bar to cancellation of removal under INA 240A(b) (8 U.S.C. 1229b(b))
and cited the Attorney General's opinion that
[[Page 67227]]
such offenses were inconclusive of an individual's character, thus
allowing individuals to rebut the presumption with evidence of good
character and rehabilitation. Matter of Castillo-Perez, 27 I&N Dec. 664
(A.G. 2019). Commenters stated that, ``if individuals seeking
discretionary cancellation of removal are afforded the opportunity to
show that they merit permanent residence in spite of their prior
convictions for driving under the influence, it is nonsensical to
promulgate a rule denying asylum seekers that same opportunity.''
Finally, commenters noted that low-income people and people of
color are more likely to be pulled over and charged with DUI. These
commenters alleged that the proposed rule accordingly exacerbates the
unjust criminal justice system by including these provisions as a bar
to asylum eligibility.
Response: The Departments disagree that DUI does not warrant a
categorical bar to asylum eligibility.
Although commenters provided limited examples of times where an
individual convicted of a DUI offense fortunately may not have caused
actual harm to others, these sorts of DUI convictions alone would not
render an alien ineligible for asylum under this rule. The final rule
bars aliens with DUI convictions from asylum eligibility under two
grounds in 8 CFR 208.13(c)(6)(iii), (c)(6)(iv) and 1208.18(c)(6)(iii),
(c)(6)(iv). First, under 8 CFR 208.13(c)(6)(iii) and
1208.13(c)(6)(iii), a single DUI offense would only be disqualifying if
it ``was a cause of serious bodily injury or death of another person.''
Second, under 8 CFR 208.13(c)(6)(iv)(A) and 1208.13(c)(6)(iv)(A), any
second or subsequent DUI offense would be disqualifying. Accordingly, a
single conviction that does not cause bodily injury or death to another
would not be a bar to asylum, but would continue to be considered by
adjudicators in determining whether an alien should receive asylum as a
matter of discretion.
The Departments maintain that DUI convictions, particularly those
covered by this rule (based on actions that cause serious bodily injury
or death or that indicate recidivism, along with the risk of harm from
such recurrent dangerous behavior), constitute serious, dangerous
activity that threatens community safety. First, the Departments
reiterate that DUI laws exist, in part, to protect unknowing persons
from the dangerous people who ``choose to willingly disregard common
knowledge that their criminal acts endanger others.'' 84 FR at 69651.
Second, the Supreme Court and other Federal courts have repeatedly
echoed the gravity of such acts. See Begay v. United States, 553 U.S.
137, 141 (2008) (``Drunk driving is an extremely dangerous crime.''),
abrogated on other grounds by Johnson v. United States, 576 U.S. 591
(2015); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th
Cir. 2000) (``[T]he very nature of the crime * * * presents a `serious
risk of physical injury' to others[.]''); Marmolejo-Campos v. Holder,
558 F.3d 903, 913 (9th Cir. 2009) (``[T]he dangers of drunk driving are
well established * * * .''); see also Holloway, 948 F.3d at 173-74 (``A
crime that presents a potential for danger and risk of harm to self and
others is `serious.' * * * `There is no question that drunk driving is
a serious and potentially deadly crime * * * . The imminence of the
danger posed by drunk drivers exceeds that at issue in other types of
cases.' '' (quoting Virginia v. Harris, 558 U.S. 978, 979-80 (2009)
(Roberts, C.J., dissenting from denial of writ of certiorari))).
It is well within the Departments' authority to condition asylum
eligibility based on a DUI conviction. The INA authorizes the Attorney
General and the Secretary to establish by regulation additional
limitations and conditions on asylum eligibility, INA 208(b)(2)(C),
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)), and Federal courts have
upheld BIA discretionary denials of asylum based on DUI convictions,
even in circumstances where a DUI conviction does not constitute a
particularly serious crime. See, e.g., Kouljinski v. Keisler, 505 F.3d
534, 543 (6th Cir. 2007). For the reasons above, DUI is a serious crime
that represents a blatant disregard for the laws and societal values of
the United States; accordingly, the final rule limits asylum
eligibility by considering a DUI conviction to be a categorical bar to
asylum.
For these reasons, the Departments decline to tailor the bar to
precisely identify serious conduct, evaluate severity of conduct,
identify individuals who pose a danger to communities, or provide
discretion to adjudicators, as suggested by commenters. The Departments
will no longer afford discretion to adjudicators considering DUI
convictions in the circumstances defined by this rule; elimination of
such discretion is, again, well within the Departments' authority. See
INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)).
Regarding DUI convictions in the context of cancellation of removal
under INA 240A(b) (8 U.S.C. 1229b(b)), the Departments note that
cancellation of removal is separate from asylum, and this rule
contemplates asylum only. See 84 FR at 69640 (stating that the
Departments propose to amend their respective regulations governing the
bars to ``asylum eligibility''). Although both forms of relief may
eventually lead to lawful permanent resident status in the United
States, cancellation of removal generally applies to a different class
of aliens, and its conditions and requirements are different from
asylum relief.\24\ Compare INA 240A(b) (8 U.S.C. 1229b(b)), with INA
208 (8 U.S.C. 1158)). Cancellation of removal requires ``good moral
character,'' which asylum relief neither requires nor mentions. Thus,
references to DUI convictions and their relative effect on the good
moral character requirement for cancellation of removal are irrelevant
to asylum eligibility. Commenters conflate two separate forms of relief
from removal intended for separate populations with separate
eligibility provisions.
---------------------------------------------------------------------------
\24\ Generally, cancellation of removal is a discretionary form
of relief in which the Attorney General may cancel removal and
adjust status to lawful permanent residence (``LPR'') of an
otherwise inadmissible or deportable alien who has been physically
present in the United States for a continuous period of not less
than 10 years preceding the date of the application; has been a
person of good moral character during such period; has not been
convicted of an offense under INA 212(a)(2), 237(a)(2), or 237(a)(3)
(8 U.S.C. 1182(a)(2), 1226(a)(2), or 1226(a)(3)); and establishes
that removal would result in exceptional and extremely unusual
hardship to the applicant's U.S. citizen or LPR spouse, parent, or
child. See INA 240A(b) (8 U.S.C. 1229b(b)). In contrast, asylum is a
discretionary benefit that precludes an alien from removal, creates
a pathway to LPR status and citizenship, and affords various
ancillary benefits such as work authorization, opportunity for
certain family members to obtain derivative asylee and LPR status,
and authorization, in some cases, to receive certain financial
assistance from the government. See INA 208 (8 U.S.C. 1158). Asylum
eligibility includes the following factors: The alien must be
physically present or arrive in the United States, the alien must
meet the definition of ``refugee'' under INA 101(a)(42)(A) (8 U.S.C.
1101(a)(42)(A)), and the alien must otherwise be eligible for asylum
in that no statutory bars or limitations apply. See INA 208(a)(1) (8
U.S.C. 1158(a)(1)), INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)), INA
208(b)(2) (8 U.S.C. 1158(b)(2)) and 8 CFR 1240.8(d); see also 84 FR
at 69642.
---------------------------------------------------------------------------
Likewise, the Attorney General's statement in Matter of Castillo-
Perez, 27 I&N Dec. at 671--that multiple DUI convictions were not
necessarily conclusive evidence of an individual's character--was made
in regards to eligibility for cancellation of removal, not asylum.\25\
Accordingly, that case has no bearing on this rulemaking.
---------------------------------------------------------------------------
\25\ Nevertheless, the Attorney General in the context of
discussing eligibility for cancellation of removal as a matter of
discretion made clear that ``[m]ultiple DUI convictions are a
serious blemish on a person's record and reflect disregard for the
safety of others and for the law.'' Castillo-Perez, 27 I&N Dec. at
670. This reasoning as to the seriousness of DUI offenses supports
the type of categorical bar at issue here and does not conflict with
the Departments' determination that DUI offenses should
categorically bar asylum eligibility.
---------------------------------------------------------------------------
[[Page 67228]]
In sum, the rulemaking categorically bars asylum eligibility for
those with one or more DUI convictions in order to protect communities
from the dangers of driving under the influence. See 84 FR at 69650-51;
see also 84 FR at 69640. It does not consider other factors of apparent
concern to commenters, such as financial status, race, or nationality.
The rulemaking also does not address actual or alleged injustices of
the criminal justice system, as referenced by the commenters. Such
considerations are outside the scope of this rulemaking.
f. Battery or Domestic Violence
Comment: Commenters opposed the proposed bar to asylum based on
domestic assault or battery, stalking, or child abuse. Broadly,
commenters opposed a bar to asylum based on ``mere allegations of
conduct without any adjudication of guilt'' for several reasons. First,
commenters stated that a bar based on conduct, not convictions,
violates INA 208(b)(2)(A) (8 U.S.C. 1158(b)(2)(A)), which bars
noncitizens who, ``having been convicted by a final judgment of a
particularly serious crime, constitute[ ] a danger to the community of
the United States.'' In accordance with the plain text and judicial
interpretation of this section of the Act, commenters asserted, the
statute prohibits application of the ``particularly serious crime'' bar
based only on non-adjudicated facts, thereby precluding separation of
``the seriousness determination from the conviction.'' Accordingly,
commenters stated that the proposed application of the ``particularly
serious crime'' bar based on conduct involving domestic assault or
battery directly contradicts the statute, which requires a final
judgment of conviction. Commenters also alleged that the proposed rule
violates the Supreme Court's holding that ``conviction'' refers to the
``crime as generally committed,'' rather than the actual conduct. See
Sessions v. Dimaya, 138 S. Ct. 1204, 1217 (2018); see also Delgado, 648
F.3d at 1109 n.1 (Reinhardt, J., concurring in part and concurring in
the judgment). One commenter asserted that the statute ``only bars
asylum seekers for alleged conduct in exceptional circumstances like
potential terrorist activity or persecution of others. * * * [C]onduct-
based asylum bars should be used only in very limited circumstances,
and in this case should not be expanded.''
Relatedly, commenters raised constitutional concerns. Commenters
cited constitutional principles that ``individuals have a right to
defend themselves against criminal charges and are presumed innocent
until proven guilty. Individuals should not be excluded from asylum
eligibility based on allegations of criminal misconduct that have not
been proven in a court of law.'' Accordingly, commenters opposed the
NPRM because it ``deprives the individual the opportunity to challenge
the alleged behavior and does away with the presumption of innocence.''
More specifically, a commenter claimed that, under the NPRM, an
incident and subsequent arrest related to domestic assault or battery
would trigger an inquiry into the alien's conduct, thereby undermining
the criminal justice system and constitutional due process protections
for criminal defendants who may not have access to counsel. The
commenter alleged that, regardless of whether the alien was convicted
of the offense, the alien may still be barred from asylum relief
following an adjudicator's independent inquiry into the incident.
Commenters also stated that a bar based on conduct alone,
especially in the context of domestic assault or battery, could
disproportionately penalize innocent individuals and victims, and
subsequently their spouses and children, who may be denied immigration
status or be left with an abuser. First, commenters explained that
specific barriers--including discrimination, community ostracism,
community or religious norms, or lack of eligibility for certain
services--deter aliens from even initially contacting law enforcement.
Second, if law enforcement was involved, commenters expressed concern
about cross arrests in which both the perpetrator of abuse and the
victim are arrested but no clear determinations of fault are made.
Commenters stated that ``authorizing asylum adjudicators to determine
the primary perpetrator of domestic assault, in the absence of a
judicial determination, unfairly prejudices survivors who are wrongly
arrested in the course of police intervention to domestic
disturbances.'' Further, commenters alleged that ``identifying the
primary aggressor is not always consistently nor correctly conducted,''
especially if survivors acted in self-defense. Commenters also
expressed concern that survivors of domestic assault or battery are
oftentimes vulnerable, with the result that a bar based on conduct
alone could affect populations with overlapping vulnerabilities. For
example, commenters specifically referenced lesbian, gay, bisexual,
transgender, and queer or questioning (``LGBTQ'') survivors, who are
already allegedly prone to experience inaction by law enforcement in
response to domestic violence, and limited English proficiency
individuals, who may be unable to fully describe the abuse to police
officers, prompting officers to then use the offenses' perpetrators for
interpretation.
One commenter expressed concern that the NPRM establishes a lower
standard by which admission may be denied because other forms of
admission require an actual conviction or factual admission to form the
basis of denial. Accordingly, the commenter stated that similarly
situated persons would be treated inconsistently based upon the
mechanism for admission that they choose. This commenter also asserted
that U nonimmigrant status and Violence Against Women Act of 1994,
Public Law 103-322, 108 Stat. 1902 (``VAWA'') relief are insufficient
alternative forms of relief because they generally require
acknowledgement from a local authority, negating the need for a fact-
finding hearing. Presumably then, most individuals affected by the NPRM
would be ineligible for these alternative forms of relief. In addition,
the commenter noted that granting those benefits is entirely different
from making an asylum applicant overcome an asylum bar.
Commenters also identified unintended consequences of the proposed
rule, explaining that individuals may act maliciously. One commenter
suggested that individuals may file for baseless temporary restraining
orders or protective orders to try to block domestic violence victims'
applications for employment authorization documents following an asylum
application. Another commenter speculated that abusers may falsely
accuse or frame survivors of domestic violence to terrorize or control
them. One commenter asserted that survivors may be hesitant to report
abuse or request a restraining order if it could negatively impact the
immigration status of the perpetrator, especially in situations where
they share a child. Another commenter stated that it would
``undoubtedly embolden[ ] perpetrators more and len[d] more strength to
otherwise weak accusations.''
Some commenters generally stated that the NPRM too broadly
categorized domestic violence offenses as particularly serious crimes.
Relatedly, another commenter stated that the bar is too vague and
requires adjudicators to
[[Page 67229]]
become experts in domestic criminal law jurisdictions of every State to
determine whether, for example, conduct ``amounts to'' domestic assault
or battery, stalking, or child abuse. Further, the commenter noted that
the NPRM's definition of battery and extreme cruelty is different from
the various States' criminal laws, which creates inconsistent
application. That commenter also alleged that the proposed exceptions
for individuals who have been battered or subjected to extreme cruelty
are ``insufficient, vague, and place[d] a high burden on victims.''
Another commenter asserted that it is ``unclear how `serious' will be
defined, and whether and how detrimental and potentially false
information provided by abusers will be considered in decision-
making.'' One commenter suggested that ``the presentation of evidence
under oath by adverse parties is a more appropriate forum for
adjudications as to whether or not domestic violence took place, and
will likely lead to fewer determinations that will cruelly strip
immigrant survivors of their right to seek asylum.'' Another commenter
asserted that the NPRM does not include a framework or limits to guide
an adjudicator's inquiry, especially in the context of false
accusations. For these reasons, commenters opposed the NPRM because it
allegedly would cause inconsistent and unjust results.
Some commenters claimed that the proposed bar is unnecessary
because the current bars for those with domestic violence convictions
or aggravated felony convictions allow for ``the denial of asylum
protection for these types of crimes when appropriate,'' whereas the
proposed bar denies asylum protection for vulnerable individuals.
Accordingly, commenters believed that ``immigration judges should
retain discretion in these situations and be permitted to grant relief
in situations where the asylum seeker is not at fault.''
Many commenters alleged that the proposed bar conflicts with VAWA.
One commenter alleged that the NPRM ``distorts language contained in
VAWA * * * in order to create barriers for asylum seekers.'' Commenters
stated that VAWA gives discretion to adjudicators ``based on a number
of factors and circumstances.'' Accordingly, commenters stated that the
proposed ``blunt approach'' conflicts with VAWA and lacks ``evidence-
based justification for treating asylum seekers differently.''
Commenters were also concerned with the lack of ``analogous protections
in the asylum context to protect a survivor from the devastating
effects of a vindictive abuser's unfounded allegations.''
Commenters also disagreed with the proposed approach towards the
burden of proof as compared to VAWA. Because of the ``vastly different
interests at stake,'' commenters stated that VAWA's low burden of proof
is necessary for several reasons: More harm results from erroneously
denying relief than erroneously granting relief, a lower standard
maximizes the self-petitioner's confidentiality and safety, certain
evidence may be inaccessible to a victim because the abuser blocked
access, and no liberty interests are implicated for alleged
perpetrators. By contrast, commenters asserted, a ``rigorous burden of
proof is appropriate when potentially barring applicants from asylum,''
as the NPRM did, because ``[t]he consequences of invoking the bar are
dire, with the applicant's life and safety hanging in the balance.''
Commenters also disagreed that the exception for asylum applicants
who demonstrate eligibility for a waiver under INA 237(a)(7)(A) (8
U.S.C. 1227(a)(7)(A)) sufficiently protects survivors deemed not to be
the primary aggressors. Commenters noted that survivors may be unaware
of their eligibility for a waiver, unaware that such a waiver exists,
or too fearful to apply.
Commenters also claimed that the waiver application process turns
an otherwise non-adversarial inquiry into a ``multi-factor, highly
specific inquiry into culpability based on circumstances that may be
very difficult for an asylum seeker to prove--especially if proceeding
without counsel and with limited English proficiency.'' Commenters also
questioned whether adjudicators could conduct such an inquiry and
correctly apply the exception because they are removed from the
immediate circumstances surrounding an incident. Accordingly,
commenters alleged that the waiver fails to adequately protect
survivors and, in some cases, inflicts harm.
Response: First, commenters are incorrect that the rule's
conditioning of asylum eligibility on conduct violated INA 208(b)(2)(A)
(8 U.S.C. 1158(b)(2)(A)) because that section requires a final judgment
of conviction. As discussed above, this rule, like the proposed rule,
designates the listed offenses as additional limitations on asylum
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\26\
See 8 CFR 208.13(c)(6), 1208.13(c)(6). This section provides authority
to the Attorney General and the Secretary to condition or limit asylum
eligibility, consistent with the statute, but does not require any sort
of conviction. Accordingly, the bar is consistent with the plain text
of that section, and the Supreme Court cases cited by commenters are
not specifically relevant.
---------------------------------------------------------------------------
\26\ The proposed rule preamble cited both the authority at
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to
designate offenses as a particularly serious crime and the authority
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to
establish additional limitations on asylum eligibility in support of
the inclusion of these domestic violence-related bars at 8 CFR
208.13(c)(6)(v), (vii), 1208.13(c)(6)(v), (vii). See 84 FR at 69651-
53. However, as stated in the proposed rule, the authority at
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) provides
underlying authority for all these provisions. 84 FR at 69652
(noting that, even if all of the proposed domestic violence offenses
would not qualify as particularly serious crimes, convictions for
such offenses--as well as engaging in conduct involving domestic
violence that does not result in a conviction--``should be a basis
for ineligibility for asylum under section 208(b)(2)(C) of the
INA''). The Departments acknowledge that the proposed rule stated
that the Attorney General and the Secretary were, in part,
``[r]elying on the authority under section 208(b)(2)(B)(ii) of the
INA.'' Id. at 69651. But the regulatory text of the new bar does not
actually designate any additional offense as ``particularly
serious.'' The Departments thus clarify that the current bars are an
exercise of the authority granted by section 208(b)(2)(C), and that
the discussion of the ``particularly serious crime'' bar merely
helps illustrate how the new bars are ``consistent with'' the
statutory asylum scheme. Further discussion of the interaction of
the rule with the ``particularly serious crime'' bar is set out
above in section II.C.2.a.i.
---------------------------------------------------------------------------
The Departments disagree with the comment that conduct-based bars
should be used only in ``very limited circumstances,'' not including
domestic assault or battery, stalking, or child abuse. As explained in
the NPRM, the Departments believe that domestic violence is
``particularly reprehensible because the perpetrator takes advantage of
an `especially vulnerable' victim.'' 84 FR at 69652 (quoting Carillo v.
Holder, 781 F.3d 1155, 1159 (9th Cir. 2015)). Accordingly, the
Departments emphasize that such conduct must not be tolerated in the
United States, and the discretionary benefit of asylum, along with the
numerous ancillary benefits that follow, will not be granted to aliens
who engage in such acts. See id. Further, the statute already
contemplates conduct-based bars in sections 208(b)(2)(A)(i), (iii)-(iv)
of the Act (8 U.S.C. 1158(b)(2)(A)(i), (iii)-(iv)),\27\ and the
Departments believe it is
[[Page 67230]]
appropriate to also enforce an asylum bar based on conduct involving
domestic battery or extreme cruelty.
---------------------------------------------------------------------------
\27\ These provisions provide as follows: (1) INA
208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) (``the alien ordered,
incited, assisted, or otherwise participated in the persecution of
any person on account of race, religion, nationality, membership in
a particular social group, or political opinion''); (2) INA
208(b)(2)(A)(iii) (8 U.S.C. 1158(b)(2)(A)(iii)) (``there are serious
reasons for believing that the alien has committed a serious
nonpolitical crime outside the United States prior to the arrival of
the alien in the United States''); and (3) INA 208(b)(2)(A)(iv) (8
U.S.C. 1158(b)(2)(A)(iv)) (``there are reasonable grounds for
regarding the alien as a danger to the security of the United
States'').
---------------------------------------------------------------------------
The rule does not violate the constitutional rights of aliens, nor
does it offend constitutional principles referenced by the commenters.
First, commenters incorrectly equated denial of a discretionary benefit
to ``criminal charges.'' The Departments will not bring ``criminal
charges'' against aliens in this context; rather, the Departments will
deny asylum based on certain convictions and conduct, in some limited
instances, as stated in the NPRM and authorized by statute. See 84 FR
at 69640.
The Departments disagree that the rule undermines the criminal
justice system and constitutional due process protections in either the
civil or criminal context. As an initial matter, aliens have no liberty
interest in the discretionary benefit of asylum. See Yuen Jin v.
Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); see also Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (citing DaCosta v. Gonzales,
449 F.3d 45, 49-50 (1st Cir. 2006)); cf. Hernandez v. Sessions, 884
F.3d 107, 112 (2d Cir. 2018) (stating, in the context of duress waivers
to the material support bar, that ``aliens have no constitutionally-
protected `liberty or property interest' in such a discretionary grant
of relief for which they are otherwise statutorily ineligible'');
Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir. 2004) (finding
that there is no right to effective assistance of counsel with regard
to an asylum claim because an alien does not have a liberty interest in
a statutorily created, discretionary form of relief, but distinguishing
withholding of removal). In other words, ``[t]here is no constitutional
right to asylum per se.'' Mudric v. Mukasey, 469 F.3d 94, 98 (3d Cir.
2006). Further, although aliens may choose to be represented by
counsel, the government is not required to appoint counsel. INA 292 (8
U.S.C. 1362).
Second, the Departments reiterate that Congress authorized the
Attorney General and the Secretary to, by regulation, limit and
condition asylum eligibility under INA 208(b)(2)(C), (d)(5)(B) (8
U.S.C. 1158(b)(2)(C), (d)(5)(B)). The Departments exercise such
authority in promulgating the provisions of the rule, 84 FR at 69652,
that allow adjudicators to inquire into allegations of conduct to
determine whether the conduct constitutes battery or extreme cruelty
barring asylum, similar to current statutory provisions requiring
inquiry into other conduct-based allegations that may bar asylum. See
INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)); see also Meng v.
Holder, 770 F.3d 1071, 1076 (2d Cir. 2014) (considering evidence in the
record to determine whether it supported the agency finding that an
alien's conduct amounted to persecution, thus triggering the persecutor
bar under INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i))). A similar
inquiry is also conducted under INA 240A(b)(2)(A) (8 U.S.C.
1229b(b)(2)(A)) to determine immigration benefits for aliens who are
battered or subjected to extreme cruelty. Hence, promulgating an
additional conduct-based bar to asylum eligibility, even without a
conviction, is consistent with and therefore not necessarily precluded
by the INA.
The Departments disagree that the rule disproportionately penalizes
innocent individuals, victims, and their spouses or children. First,
the Departments emphasize the exceptions for aliens who have been
battered or subjected to extreme cruelty and aliens who were not the
primary perpetrators of violence in the relationship. See 8 CFR
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed).
This exception protects qualified innocent individuals and their
spouses or children from asylum ineligibility by providing that
individuals whose crimes or conduct were based on ``grounds for
deportability under section 237(a)(2)(E)(i) through (ii) of the Act [8
U.S.C. 1227(a)(2)(E)(i)-(ii)]'' would nevertheless not be rendered
ineligible for asylum if such individuals ``would be described in
section 237(a)(7)(A) of the Act [8 U.S.C. 1227(a)(7)(A)].'' See 8 CFR
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed).
Section 237(a)(7)(A) of the Act (8 U.S.C. 1227(a)(7)(A)), in turn,
describes individuals who: (1) Were battered or subject to extreme
cruelty; (2) were not the primary perpetrator of violence in the
relationship; and (3) whose convictions were predicated upon conduct
where the individual acted in self-defense, violated a protection order
intended to protect that individual, or where the crime either did not
result in serious bodily injury or was connected to the individual
having been battered or subjected to extreme cruelty.
The Departments disagree with commenters' concerns that the
provided exceptions are insufficient. To the extent that the commenters
are concerned that individuals might not be able to avail themselves of
the exception because of a lack of awareness of the waiver or their
eligibility for it, such concerns are unfounded. Just as aliens are
currently informed of eligibility and other asylum requirements through
the Act and regulations; the instructions to the I-589 application and
the form itself; representatives or other legal assistance projects; or
other sources, aliens will similarly be informed of the existence of
this exception. The Departments encourage individuals to contact law
enforcement if they experience domestic violence; however, potential
resolutions to the sort of specific barriers referenced by the
commenters are outside the scope of this rulemaking. It is the
Departments' aim, however, that the exception to the bar would reduce
such barriers.
In regard to commenters' concerns about cross arrests with no
definite determinations made, the Departments note that the
adjudicatory inquiry into whether acts constitute battery or extreme
cruelty is in no way novel. See, e.g., INA 240A(b)(2)(A) (8 U.S.C.
1229b(b)(2)(A)) (providing for similar adjudicatory inquiry in the
context of cancellation of removal). The Departments are confident in
adjudicators' continued ability to conduct such inquiries, which
include properly applying exceptions for innocent individuals. The
Departments acknowledge that survivors are oftentimes vulnerable
individuals. The bar and related exception are specifically promulgated
to ensure that aliens with convictions for or who engage in conduct
involving domestic assault or battery are ineligible for asylum,
thereby reducing subsequent effects on vulnerable individuals.
The Departments may predicate asylum eligibility based on certain
convictions or conduct under the statutory authority that allows them
to limit or condition asylum eligibility. See INA 208(b)(2)(C),
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Aliens may apply for
immigration benefits for which they are eligible, and the INA affords
various ancillary benefits in accordance with the specific relief
granted. In other words, aliens are generally free to apply (or not to
apply) for benefits, and then the relevant provisions of the statute
are consistently applied. See 8 CFR 208.1(a)(1), 1208.1(a)(1).
Accordingly, aliens may be ``similarly situated,'' as phrased by the
commenters, but whether ``similarly situated'' aliens choose to apply
for the same benefits under the INA is not a decision for the
Departments to make.
The Departments emphasize that the sufficiency of alternative forms
of protection or relief, such as U
[[Page 67231]]
nonimmigrant status and VAWA relief referenced by the commenters,
varies in accordance with the unique facts in each case. For example,
although some aliens may be unable to obtain the necessary law
enforcement certification, many others are able to successfully meet
all the necessary requirements. See 8 CFR 214.14. The Departments,
however, reiterate that the new bar for convictions or conduct
involving domestic assault or battery, stalking, or child abuse,
contains an exception that is intended to ensure that innocent victims
of violence are not rendered ineligible for asylum relief. See 8 CFR
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed).
This exception demonstrates both the Departments' concern for domestic
violence victims and their consideration of how best to address those
victims' circumstances, and the Departments have concluded that--
especially in light of countervailing considerations such as the need
to protect the United States from the harms associated with domestic
abusers--this exception is sufficient.
The Departments acknowledge the commenters' concerns regarding
unintended consequences stemming from the rule. The Departments,
however, reiterate that mere allegations alone would not automatically
bar asylum eligibility. Rather, an adjudicator will consider the
alleged conduct and make a determination on whether it amounts to
battery or extreme cruelty, thereby triggering the bar to asylum
eligibility. See 8 CFR 208.13(c)(6)(vii),1208.13(c)(6)(vii) (proposed);
see also 84 FR at 69652. Similar considerations are currently utilized
in other immigration contexts, including other asylum provisions (INA
208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) and removability (INA
237(a)(1)(E) (8 U.S.C. 1227(a)(1)(E)). In conjunction with the
exception at 8 CFR 208.13(c)(6)(v)(C), (vii)(F) and
1208.13(c)(6)(v)(C), (vii)(F) (proposed), the Departments believe this
inquiry is properly used in this context as well.
Commenters' allegations that the bar is too vague or broad to cover
only offenses that constitute ``particularly serious crimes'' are
irrelevant because, although the Departments possess statutory
authority under section 208(b)(2)(B)(ii) of the Act (8 U.S.C.
1158(b)(2)(B)(ii) to designate a ``particularly serious crime,'' the
Departments are also authorized to establish additional limitations or
conditions on asylum. INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C.
1158(b)(2)(C), (d)(5)(B)). The only requirement is that these
limitations or conditions must be consistent with section 208 of the
Act (8 U.S.C. 1158). Nothing in section 208 of the Act (8 U.S.C. 1158)
conflicts with this rule.
The Departments also disagree with commenters who alleged that the
rule requires adjudicators to have expertise in all State
jurisdictions. The rule requires adjudicators to engage in a fact-based
inquiry, and that inquiry accounts for the differences in State law
regarding criminal convictions for offenses related to domestic
violence. See 84 FR at 69652. Further, even if adjudicators must
interpret and apply law from various jurisdictions, the Departments are
confident that adjudicators will properly do so, as they currently do
in other immigration contexts. See, e.g., INA 208(b)(2)(A)(i) (8 U.S.C.
1158(b)(2)(A)(i)) (other asylum provisions); INA 237(a)(1)(E) (8 U.S.C.
1227(a)(1)(E)) (removability).
The Departments disagree that the exception is ``insufficient'' or
``vague'' or ``place[s] a high burden on victims.'' The exception
directly references and adapts the statutory requirements in INA
237(a)(7)(A) (8 U.S.C. 1227(a)(7)(A)). In the interest of consistency
and protection afforded to victims since its enactment, the exceptions
to this categorical bar align with those enacted by Congress.
The Departments decline to evaluate the commenters' various
examples. A proper inquiry is fact-based in nature; absent the entirety
of facts for each unique case, various examples cannot be adequately
addressed. The BIA has deemed some domestic violence offenses as
``particularly serious crimes.'' See 84 FR at 69652 (providing such
examples of BIA decisions). As explained in the proposed rule, that
case-by-case approach fails to include all of the offenses enumerated
in the rule, and it does not include conduct related to domestic
violence. Id. Accordingly, the Departments believe this rule-based
approach is preferable because it will facilitate fair and just
adjudicatory results.
In addition, the Departments disagree with commenters that the bar
is unnecessary. The Departments believe the bar and its exception
establish important protections for vulnerable individuals, including
those not at fault, and clarify the Departments' views on such
reprehensible conduct. See id.
The rule does not conflict with or distort language in VAWA. The
rule is solely applicable to eligibility for the discretionary benefit
of asylum. The rule does not expound upon or specifically supplement
VAWA. Rather, the rule adds categorical bars to asylum eligibility,
clarifies the effect of certain criminal convictions--and, in one
instance, abusive conduct that may not necessarily involve a criminal
conviction--on asylum eligibility, and eliminates automatic
reconsideration of discretionary denials of asylum. See generally 84 FR
at 69640. The rule excludes from a grant of asylum and its many
ancillary benefits aliens who have been convicted of certain offenses
or engaged in certain conduct. Contrary to the commenters' remarks, the
rule is not intended to exclude survivors of domestic violence; in
fact, the preamble to the rule, 84 FR at 69652, provided an extensive
explanation of the Departments' opposition to domestic violence,
including an overview of various legislative and regulatory actions
that seek to protect victims and to convey strong opposition to
domestic violence. Moreover, the rule is fully consonant with other
regulations, see, e.g., 8 CFR 204.2(c)(1)(i)(E), designed to ensure
that those who commit acts of domestic violence, even if they are not
convicted, do not distort or undermine the immigration laws of the
United States. Accordingly, although VAWA and the rule may not use the
same approach, both are instrumental in the government's efforts to
protect victims from domestic violence in the United States.
In that vein, the rule provides protection to victims of domestic
violence by way of the exceptions to the bar in 8 CFR
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed).
The rule also conveys the Departments' opposition to domestic violence
by denying asylum eligibility to aliens convicted of or who have
engaged in such conduct so that abusers may not stay in the United
States. See 84 FR at 69652.
Addressing commenters' concerns that the ``life and safety'' of
aliens were ``hanging in the balance,'' the Departments reiterate the
alternative forms of relief or protection that may be available to
applicants who are ineligible for asylum under the rulemaking--
applicants may still apply for statutory withholding of removal or CAT
protection. See 84 FR at 69642. Accordingly, the Departments disagree
that a ``vigorous burden of proof'' is necessary in this context. On
the contrary, asylum is a discretionary benefit in which the alien
bears the burden of proof to demonstrate eligibility under the
conditions and limitations Congress authorized the Departments to
establish. See INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)).
To clarify the exception in 8 CFR 208.13(c)(6)(v)(C), (vii)(F) and
1208.13(c)(6)(v)(C), (vii)(F) (proposed),
[[Page 67232]]
applicants need not be granted a waiver under INA 237(a)(7)(A) (8
U.S.C. 1227(a)(7)(A)) to qualify for the exception. Rather, applicants
must only satisfy one of the following criteria contained in the Act to
the satisfaction of an adjudicator: (1) The applicant was acting in
self-defense; (2) the applicant was found to have violated a protection
order intended to protect the applicant; or (3) the applicant
committed, was arrested for, was convicted of, or pled guilty to
committing a crime that did not result in serious bodily injury and
where there was a connection between the crime and the applicant's
having been battered or subjected to extreme cruelty. 8 CFR
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed);
see also 84 FR at 69653. Together, the proposed rule and this final
rule serve, in part, as notice to the public that such provisions
exist--including the exception for applicants who are themselves
victims. See 84 FR at 69640 (stating that this section of the Federal
Register contains notices to the public of the proposed issuance of
rules and regulations). Accordingly, just like other immigration
benefits and relevant exceptions, aliens are on notice upon publication
in the Federal Register.
Finally, the exceptions provided by 8 CFR 208.13(c)(6)(v)(C),
(vii)(F) and 1208.13(c)(6)(v)(C), (vii)(F) do not create an adversarial
process. These provisions mirror the text of the statute except that
aliens only need to satisfy the criteria, not be actually granted an
exception. In this way, the exceptions as stated in the rule are
arguably less stringent than the statutory exception. Further, the
Departments remain confident that adjudicators will continue to
properly apply the exceptions, regardless of commenters' concerns of
how far removed adjudicators may be from the immediate circumstances of
the conduct at issue. The exceptions are not intended to mitigate harm
already suffered by survivors; rather, it is the Departments' hope that
the exceptions ensure that the conduct of applicants who are actually
victims of domestic violence does not bar their asylum eligibility.
Accordingly, the Departments strongly disagree that the exceptions will
inflict harm on survivors, as commenters alleged.
g. Document Fraud Misdemeanors
Comment: Numerous commenters opposed implementing a categorical
limitation on eligibility for asylum for individuals convicted of
Federal, State, tribal, or local misdemeanor offenses related to
document fraud, stating that it would result in denial of meritorious
asylum claims. See 8 CFR 208.13(c)(6)(vi)(B)(1),
1208.13(c)(6)(vi)(B)(1) (proposed). Commenters stated that some asylum
applicants have necessarily and justifiably used false documents to
escape persecution. Commenters stated that the NPRM ignored common
circumstances related to convictions involving document fraud, such as
when individuals flee their countries of origin with no belongings and
``must rely on informal networks to navigate their new circumstances.''
Some commenters suggested that applicants' use of fraudulent documents
in entering the United States can be linked to their financial means
but did not offer further detail on that position. Commenters stated
that it was ``arbitrary and irrational'' for the Departments to suggest
that such conduct would render somebody unfit to remain in the United
States or a threat to public safety.
Commenters also suggested that the proposed limitation contravened
long-standing case law establishing that violations of the law arising
from an asylum applicants' manner of flight should be just one of many
factors to be considered in the exercise of discretion. Matter of Pula,
19 I&N Dec. at 474. Some commenters objected to the proposed limitation
because it allegedly did not provide a sufficient exception for those
who have unknowingly engaged in such conduct, such as those who have
unknowingly obtained false documents from bad actors like unscrupulous
notarios. Other commenters opposed the proposed limitation because it
did not provide a sufficient exception for those who must use false
documentation to flee persecution.
Some commenters recognized the NPRM's proposed exception to this
limitation on asylum eligibility.\28\ Commenters opined that the
proposed exception was not sufficient, given the consequences for those
who do not fit within the exception. Commenters stated that asylum
seekers who obtain false documents when passing through a third country
or who may be unable to prove that they fall within an exception would
be adversely affected by the proposed limitation.
---------------------------------------------------------------------------
\28\ See 8 CFR 208.13(c)(6)(vi)(B)(1) and
1208.13(c)(6)(vi)(B)(1), which provide that a misdemeanor offense
related to document fraud would bar eligibility for asylum unless
the alien can establish (1) that the conviction resulted from
circumstances showing that the document was presented before
boarding a common carrier, (2) that the document related to the
alien's eligibility to enter the United States, (3) that the alien
used the document to depart a country in which the alien has claimed
a fear of persecution, and (4) that the alien claimed a fear of
persecution without delay upon presenting himself or herself to an
immigration officer upon arrival at a United States port of entry.
---------------------------------------------------------------------------
Some commenters stated that the proposed exception was unrealistic
given circumstances that could prevent asylum seekers from immediately
claiming a fear of persecution, such as mistrust of government
officials, language barriers, or trauma-induced barriers.
At least one commenter noted that traffickers routinely provide
victims with false documents for crossing borders and that trafficking
victims may be unable to explain the circumstances of their
documentation to law enforcement. The commenter also noted that
traffickers regularly confiscate, hide, or destroy their victims'
documents to exert control over their victims and that trafficking
victims often lack documentation. The commenter opined that trafficking
victims were thus particularly vulnerable to bad actors who falsely
claim that they can prepare legal documentation.
Commenters stated that the NPRM did not properly consider that some
asylum seekers would be required to, or inadvertently, use false
documents in the United States while their proceedings were pending,
for example, in order to drive or work. Commenters suggested that
continued availability of asylum protection to low-wage immigrant
workers could encourage them to ``step out of the shadows'' when faced
with workplace exploitation, dangers, and discrimination. By contrast,
commenters stated, a categorical limitation would further incentivize
some employers to hire and exploit undocumented workers where employers
use aliens' immigration status against them and force asylum seekers
``deeper into the dangerous informal economy.'' At least one commenter
stated that DHS recently made it harder for asylum seekers with pending
applications to survive without using fraudulent documents by proposing
a rule that would extend the waiting period for asylum seekers to apply
for work authorization from 180 days to one year.
At least one commenter suggested that the proposed limitation
related to document-fraud offenses undermined an important policy
objective to encourage truthful testimony by asylum seekers.
At least one commenter stated that there was a discrepancy between
the Departments' reasoning that the use of fraudulent documents ``so
strongly undermines government integrity that it would be inappropriate
to allow an individual convicted of such an offense
[[Page 67233]]
to obtain the discretionary benefit of asylum'' and possible
availability of adjustment of status for a document-fraud-related
conviction if the conviction qualified as a petty offense or if the
individual obtained a waiver of inadmissibility.
Response: The Departments have considered all comments and
recommendations submitted regarding the bar to asylum eligibility for
aliens with misdemeanor document fraud convictions. Despite commenters'
concerns, the Departments continue to believe this exception is
consistent with distinctions regarding certain document-related
offenses as recognized by the BIA, Matter of Pula, 19 I&N Dec. at 474-
75; existing statutes, see INA 274C(a)(6) and (d)(7) (8 U.S.C.
1324c(a)(6) and (d)(7)); and existing regulations, see 8 CFR 270.2(j)
and 1270.2(j), as noted in the NPRM. See 84 FR at 69653; cf. Matter of
Kasinga, 21 I&N Dec. 357, 368 (BIA 1996) (concluding that possession of
a fraudulent passport was not a significant adverse factor where the
applicant ``did not attempt to use the false passport to enter'' the
United States, but instead ``told the immigration inspector the
truth''). The Departments will not amend the bar as laid out in the
proposed rule and will continue to rely on the justifications provided
in the NPRM. See 84 FR at 69653.\29\
---------------------------------------------------------------------------
\29\ The Departments also reject some comments as wholly
unfounded. For example, there is no logical or factual indication
that the rule, combined with a criminal conviction for document
fraud necessary for the bar to apply, would subsequently cause an
alien to commit another crime--i.e., perjury--by testifying
untruthfully while in immigration proceedings.
---------------------------------------------------------------------------
Further, offenses related to fraudulent documents that carry a
potential sentence of at least one year are already aggravated
felonies, and thus are disqualifying offenses for purposes of asylum.
INA 101(a)(43)(P) (8 U.S.C. 1101(a)(43)(P)). Courts have recognized
that proper identity documents are essential to the functioning of
immigration proceedings. See Noriega-Perez v. United States, 179 F.3d
1166, 1173-74 (9th Cir. 1999). Furthermore, in passing the REAL ID Act
of 2005, Public Law 109-13, 119 Stat. 231, Congress acknowledged the
critical role that identity documents play in protecting national
security and public safety.
Regarding the commenters' concerns for aliens who may use
fraudulent documents as a means to flee persecution or other harms, the
Departments reiterate the exception for this bar in the rule for aliens
who can establish (1) that the conviction resulted from circumstances
showing that the document was presented before boarding a common
carrier, (2) that the document related to the alien's eligibility to
enter the United States, (3) that the alien used the document to depart
a country in which the alien has claimed a fear of persecution, and (4)
that the alien claimed a fear of persecution without delay upon
presenting himself or herself to an immigration officer upon arrival at
a United States port of entry. 8 CFR 208.13(c)(6)(vi)(B)(1),
1208.13(c)(6)(vi)(B)(1).
The Departments agree with commenters that there are certain,
limited circumstances under which an individual with a legitimate
asylum claim might need to utilize fraudulent documents during his or
her flight to the United States, and the Departments provided this
exception to the bar to account for such circumstances. The Departments
believe that the exception, as proposed in the NPRM, is sufficient to
allow individuals who may have committed document-fraud offenses
directly related to their legitimate claims of fear to apply for
asylum. The Departments believe that this exception, which is
consistent with the exception in INA 274C(d)(7), 8 U.S.C. 1324c(d)(7),
allowing the Attorney General to waive civil money penalties for
document fraud to an alien granted asylum or statutory withholding of
removal, strikes the appropriate balance between recognizing the
seriousness of document-fraud-related offenses, including the threat
they pose to a functioning asylum system, and the very limited
instances where a conviction for such an offense should not bar an
applicant from eligibility for asylum.
The Departments disagree with concerns that aliens with viable
asylum claims might not be able to either immediately disclose their
fear of return at a port-of-entry or prove that they fall within an
exception to the bar. DHS has, by regulation, established procedures
for determining whether individuals who present themselves at the
border have a credible fear of persecution or torture, 8 CFR 208.30,
and officers who conduct the interviews are required by regulation to
undergo ``special training in international human rights law, non-
adversarial interview techniques, and other relevant national and
international refugee laws and principles,'' 8 CFR 208.1(b). Asylum
officers are required to determine that the alien is able to
participate effectively in his or her interview before proceeding, 8
CFR 208.30(d)(1), (5), and verify that the alien has received
information about the credible fear process, 8 CFR 208.30(d)(2). The
alien may consult with others prior to his or her interview. 8 CFR
208.30(d)(4). Such regulations are intended to recognize and
accommodate the sensitive nature of fear-based claims and to foster an
environment in which aliens may express their claims to an immigration
officer.
The Departments disagree with the commenters that this bar to
asylum is inconsistent with case law, particularly Matter of Pula. See
19 I&N Dec. at 474-75. The Departments first note that Matter of Pula
pertains to how adjudicators should weigh discretionary factors in
asylum applications. Id. This rule, by contrast, sets forth additional
limitations on eligibility for asylum, which are separate from the
discretionary determination. Additionally, Matter of Pula stated that
whether a fraudulent document offense should preclude a favorable
finding of discretion depends on ``the seriousness of the fraud.'' Id.
at 474. The Departments in this rule are clarifying that the
disqualifying offenses, which as provided by the rule must have
resulted in a misdemeanor conviction, are serious enough to preclude
eligibility for asylum, and have provided an exception for those
situations that the Departments have determined should not preclude
eligibility.
The Departments further reject some comments as unjustified within
the context of a law-abiding society. For example, criticizing the rule
because it may discourage participation in criminal activity--e.g.,
driving without a license--or other activity in violation of the law--
e.g., working without employment authorization--is tantamount to saying
the Departments should encourage and reward unlawful behavior. The
Departments decline to adopt such suggestions. More specifically, the
Departments reject commenters' suggestions that the additional
limitation should not apply to document-fraud-related offenses that
stem from fraudulent driver's licenses or employment authorization. The
Departments' position on this matter is both reasonable and justified.
As explained in the NPRM, such offenses are serious, ``pos[ing] * * * a
significant affront to government integrity'' and are particularly
pernicious in the context of immigration law, where the use of
fraudulent documents, ``especially involving the appropriation of
someone else's identity, * * * strongly undermines government
integrity.'' 84 FR at 69653. Commenters' concerns about how the rule
might affect working conditions of aliens are beyond the scope of this
rulemaking.
[[Page 67234]]
Congress has delegated its authority to the Departments to propose
additional, i.e., broader, limitations on the existing bars to asylum
eligibility, so long as the additional limitations are consistent with
the Act. INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). The Departments are
acting pursuant to their authority to create additional limitations on
asylum eligibility and are not designating additional offenses as
particularly serious crimes pursuant to INA 208(b)(2)(B)(ii) (8 U.S.C.
1158(b)(2)(B)(ii)), as discussed above. Accordingly, the Departments do
not address commenters' concerns that the disqualifying offenses are
not or should not be particularly serious crimes.
The Departments disagree with commenters' assertions that the rule
would unfairly affect trafficking victims because traffickers force
them to use fraudulent documents when they are crossing the border. The
Departments recognize the serious nature of such circumstances, but
they believe that considerations regarding criminal culpability for
document-fraud-related offenses would be best addressed during criminal
proceedings.
Finally, regarding commenters' points about the effect of document-
fraud-related convictions in the context of adjustment of status under
INA 245(a) (8 U.S.C. 1255(a)), the Departments note that adjustment of
status is separate from asylum, and the rule contemplates asylum only.
See 84 FR at 69640 (stating that the Departments propose to amend their
respective regulations governing the bars to ``asylum'' eligibility).
The adjustment of status conditions and consequent benefits are
different from asylum. See Mahmood v. Sessions, 849 F.3d 187, 195 (4th
Cir. 2017) (observing that, although ``strong policies underlie'' both
asylum and adjustment of status, ``[t]hese policies serve different
purposes''). Compare INA 209(b) (8 U.S.C. 1159(b)) and 245(a) (8 U.S.C.
1255(a)), with INA 208 (8 U.S.C. 1158)). The Departments do note,
however, that, because adjustment of status is a discretionary form of
relief, an alien's document-fraud-related conviction that would bar the
alien from asylum eligibility under this rule could also separately be
the basis for a denial of adjustment of status. See, e.g., Matter of
Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (instructing immigration judges
to consider ``whether the respondent's application for adjustment
merits a favorable exercise of discretion'' when considering whether to
continue proceedings).
h. Unlawful Public Benefits Misdemeanors
Comment: Commenters opposed the NPRM's proposed limitation on
asylum eligibility based on convictions for misdemeanor offenses
involving the ``unlawful receipt of Federal public benefits, as defined
in 8 U.S.C. 1611(c), from a Federal entity, or the receipt of similar
public benefits from a State, tribal, or local entity, without lawful
authority.'' See 8 CFR 208.13(c)(6)(vi)(B)(2), 1208.13(c)(6)(vi)(B)(2).
Commenters stated that this proposed limitation would
disproportionately impact low-income individuals and people of color.
Commenters stated that complex evaluations involving assets, income,
household composition, and changing circumstances, such as employment
or housing, could easily result in overpayments and miscalculations of
benefits by both case workers for recipients and recipients themselves.
Commenters asserted that these calculations could be especially
confusing and difficult for low-income persons who may have literacy
challenges, low education levels, or limited English proficiency.
One commenter stated that this proposed limitation was overbroad
because there is no requirement that any convictions related to the
unlawful receipt of public benefits be linked to fraud or require
intentionality.
Commenters asserted that unlawful receipt of public benefits is not
a ``particularly serious crime.'' The commenters stated that the
proposed limitation fails to differentiate between dangerous offenses
and those committed out of desperation and observed that such offenses
do not involve an element of intentional or threatened use of force.
One commenter stated that the Departments' assertions that such
offenses burden taxpayers and drain resources from lawful beneficiaries
was not sufficient to render these offenses ``particularly serious
crimes.'' Specifically, the commenter stated that this was inconsistent
with the intent of the Act and the 1967 Protocol, as well as BIA
precedent, citing the following: United Nations Protocol Relating to
the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.1.A.S.
No. 6577, 606 U.N.T.S. 268 (``The benefit of the present provision may
not, however, be claimed by a refugee whom there are reasonable grounds
for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that
country.''); Delgado, 648 F.3d at 1110 (Reinhardt, J., concurring in
part and concurring in the judgment) (``The agency's past precedential
decisions also help to illuminate the definition of a `particularly
serious crime.' Crimes that the Attorney General has determined to be
`particularly serious' as a categorical matter, regardless of the
circumstances of an individual conviction, include felony menacing (by
threatening with a deadly weapon), armed robbery, and burglary of a
dwelling (during which the offender is armed with a deadly weapon or
causes injury to another). Common to these crimes is the intentional
use or threatened use of force, the implication being that the
perpetrator is a violent person.'' (footnotes omitted)).
Commenters stated that the Departments greatly overstated the scope
of this issue and failed to support their assertions that such crimes
are of an ``inherently pernicious nature.'' See 84 FR at 69653.
Commenters stated that, by contrast, ``data demonstrates that the
incidents of these types of fraud crimes are minimal. For example, the
incidence of fraud in the Supplemental Nutrition Assistance Program is
estimated at 1.5% for all incidents of fraud, including individuals of
all citizenship categories and including both fraud committed by
agencies, retailers/shops and individuals.'' See Randy Alison
Aussenberg, Cong. Research Serv., R45147, Errors and Fraud in the
Supplemental Nutrition Assistance Program (SNAP) (2018), https://fas.org/sgp/crs/misc/R45147.pdf.
Response: The Departments have considered all of the comments
received, and have chosen not to make any changes to the NPRM's
regulatory language establishing an additional limitation on asylum
eligibility for individuals who have been convicted of an offense
related to public benefits. See 8 CFR 208.13(c)(6)(vi)(B)(2),
1208.13(c)(6)(vi)(B)(2).
The Departments disagree with commenters who believe that the rule
would unfairly impact low-income individuals. By contrast, the rule is
designed to limit asylum eligibility for those who criminally take
advantage of benefits designed to assist low-income individuals. The
Departments recognize commenters' concerns that individuals might be
unaware of the complex systems that might result in miscalculation and
overpayment of benefits; however, the Departments believe that it would
be more appropriate for criminal culpability for such offenses to be
determined during criminal proceedings.
[[Page 67235]]
In response to comments that such offenses are not particularly
serious crimes, the Departments again note that the Departments'
authority to set forth additional limitations and conditions on asylum
eligibility requires only that such conditions and limitations be
consistent with section 208 of the Act (8 U.S.C. 1158) and does not
require that the offenses be particularly serious crimes or involve any
calculation of dangerousness. Compare INA 208(b)(2)(C) (8 U.S.C.
1158(b)(2)(C)) (``The Attorney General may by regulation establish
additional limitations and conditions, consistent with this section,
under which an alien shall be ineligible for asylum under paragraph
(1).''), with INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and
INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (providing that
``[t]he Attorney General may designate by regulation offenses'' for
which an alien would be considered ``a danger to the community of the
United States'' by virtue of having been convicted of a ``particularly
serious crime''). As discussed in the NPRM, limiting asylum eligibility
for those who have been convicted of such offenses, which are of an
``inherently pernicious nature,'' is consistent with previous
Government actions to prioritize enforcement of the immigration laws
against such offenders. 84 FR at 69653.
Regardless of the relative frequency of public benefits fraud, the
Departments have concluded that convictions for such crimes, however
often they occur, should be disqualifying for eligibility for the
discretionary benefit of asylum. For example, the Departments are
encouraged by the data cited by commenters indicating that the rate of
fraud in certain programs may be low, but low rates of fraud do not
support countenancing the abuse of public benefits by the remainder of
the programs' participants.
i. Controlled Substance Possession or Trafficking Misdemeanors \30\
---------------------------------------------------------------------------
\30\ In addition to the comments regarding the bar to asylum
discussed in this section, multiple commenters shared their opinion
that marijuana should be legalized, without reference to a
particular provision of the proposed rule. The Departments note that
broad questions of national drug policy, including the legalization
of marijuana at the national or State level, are outside the scope
of this rulemaking. Marijuana remains a controlled substance, with
the resulting penalties that may flow from its possession,
trafficking, or other activities involving it. See 21 CFR 1308.11
(Schedule I controlled substances).
---------------------------------------------------------------------------
Comment: Commenters also opposed the designation of misdemeanor
possession or trafficking of a controlled substance or controlled-
substance paraphernalia as categorical bars to asylum eligibility. See
8 CFR 208.13(c)(6)(vi)(B)(3), 1208.13(c)(6)(vi)(B)(3) (proposed).
Commenters asserted that the proposed limitation would be unnecessary,
overbroad, and racially discriminatory.
Commenters remarked that the proposed limitation was overbroad with
respect to the convictions and conduct covered and was not tailored to
bar only those who have engaged in ``serious'' conduct or otherwise
posed a danger to the community. Commenters also stated that the
proposed limitation was overbroad because it did not account for
jurisdictions that had decriminalized certain drugs, like cannabis.
Commenters said that, given the stakes at issue in asylum claims,
protection should not be predicated on an applicant's abstinence from
drugs. Commenters also stated that this proposed limitation was
particularly inappropriate ``at a time of such inconsistency in federal
laws surrounding drug legalization.'' Commenters generally expressed
concern about the Federal government's perpetuation of the ``war on
drugs.''
Commenters stated that the proposed limitation would not make
anybody safer but rather result in the denial of bona fide asylum
claims. Commenters stated that the proposed limitation would ``go
beyond any common sense meaning'' of the term ``particularly serious
crime.'' Commenters were particularly concerned with the implications
of this proposed limitation because it would eliminate the opportunity
for applicants to present mitigating circumstances that, commenters
stated, are commonly associated with such convictions, such as
addiction, self-medication, and any subsequent treatment or
rehabilitation. Commenters asserted that the proposed limitation would
improperly expand bars to asylum eligibility based on laws where
enforcement decisions are ``heavily tainted'' by racial profiling.
Commenters also expressed concern that the proposed limitation
would unfairly punish asylum seekers who might be vulnerable to
struggles with addiction as a coping mechanism after facing significant
trauma, particularly in light of obstacles to accessing medical or
psychological treatment. Commenters stated that the proposed limitation
eliminated any possibility of a treatment- and compassion-based
approach to addiction. Commenters stated that the Departments' position
on this matter was at odds with national trends to ``move toward a harm
reduction approach to combating drug and alcohol addiction.'' Some
commenters noted that treatment of misdemeanor offenses relating to
controlled substances, particularly with respect to offenses involving
possession of marijuana or prescription drugs, was ``wildly
disproportionate to the severity of these offenses.'' One commenter
asserted that these offenses do not have an element of violence or
dangerousness and stated that the ``only victims are the offenders
themselves.''
One commenter remarked that the Departments relied on ``misleading
evidence that does not create a link between dangerousness'' and the
disqualifying offense. The commenter stated that widespread opioid
abuse is ``rooted in over-prescription by healthcare providers based on
the assurances of pharmaceutical companies'' and does not serve as a
relevant justification for the additional limitation.
One commenter stated that courts and statutes, including the
Supreme Court, have treated varying simple possession drug offenses
differently. For example, the commenter read the Supreme Court's
decision in Lopez v. Gonzales, 549 U.S. 47 (2006), to mean that simple
possession of a controlled substance is not a ``drug trafficking crime
unless it would be treated as a felony if prosecuted under federal
law.'' The commenter also remarked that a single incident of simple
possession of any controlled substance except for Flunitrazepam is not
treated as a felony and is thus not considered an aggravated felony,
see 21 U.S.C. 844; and that some second convictions for possession have
been recognized as drug trafficking aggravated felonies, but not all,
see Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010); Berhe v.
Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006). The commenter asserted
that the nuanced and varying assessments related to such offenses
suggest ``they do not merit blanket treatment of the same severity.''
Some commenters objected to existing aggravated felony bars with
respect to drug-related offenses in addition to the proposed
limitation. Commenters stated that immigration judges should continue
to be able to exercise discretion over those controlled-substance-
related offenses that are not already subject to an existing bar to
asylum. Commenters also generally objected to criminalizing possession
of drugs for personal use, given the medical value and current
inconsistent treatment among states, but no analysis was provided
connecting these comments to the NPRM, specifically.
[[Page 67236]]
Response: The Departments have considered all comments and
recommendations submitted regarding the NPRM. The final rule does not
alter the regulatory language set forth in the NPRM with respect to the
limitation on misdemeanor offenses involving possession or trafficking
of a controlled substance or controlled-substance paraphernalia. See 8
CFR 208.13(c)(6)(vi)(B)(3), 1208.13(c)(6)(vi)(B)(3).
Consistent with the INA's approach toward controlled substance
offenses, for example in the removability context under INA
237(a)(2)(B)(i) (8 U.S.C. 1227(a)(2)(B)(i)), this rule does not
penalize a single offense of marijuana possession for personal use of
30 grams or less. See 84 FR at 69654. However, as discussed in the
NPRM, the Departments have determined that possessors and traffickers
of controlled substances ``pose a direct threat to the public health
and safety interests of the United States.'' Id. Accordingly, the
Departments made a policy decision to protect against such threats by
barring asylum to such possessors and traffickers, and Federal courts
have agreed with such treatment in the past. See Ayala-Chavez v. U.S.
INS, 944 F.2d 638, 641 (9th Cir. 1991) (``[T]he immigration laws
clearly reflect strong Congressional policy against lenient treatment
of drug offenders.'' (quoting Blackwood v. INS, 803 F.2d 1165, 1167
(11th Cir. 1988))).
The Departments note that aliens barred from asylum eligibility as
a result of this provision may still be eligible for withholding of
removal under the Act or CAT protection, provisions that would preclude
return to a country where they experienced or fear torture or
persecution. See 84 FR at 69642.
The Departments disagree with comments suggesting that the bar is
overbroad and not appropriately tailored only to aliens who have
engaged in serious conduct or pose a danger to the community.
Similarly, the Departments strongly disagree with commenters who
asserted that this additional limitation will not make communities
safer. Despite commenters' arguments, the Departments reiterate that
controlled substance offenses represent significant and dangerous
offenses that are damaging to society as a whole. See Matter of Y-L-,
23 I&N Dec. 270, 275 (A.G. 2002) (noting that ``[t]he harmful effect to
society from drug offenses has consistently been recognized by Congress
in the clear distinctions and disparate statutory treatment it has
drawn between drug offenses and other crimes''). The illicit use of
controlled substances imposes substantial costs on society from loss of
life, familial disruption, the costs of treatment or incarceration,
lost economic productivity, and more. Id. at 275-76 (citing Matter of
U-M-, 20 I&N Dec. 327, 330-31 (BIA 1991) (``This unfortunate situation
has reached epidemic proportions and it tears the very fabric of
American society.'')); 84 FR at 69654; see also Office of Nat'l Drug
Control Policy, National Drug Control Strategy 11 (Feb. 2020), https://www.whitehouse.gov/wp-content/uploads/2020/02/2020-NDCS.pdf
(explaining, in support of the national drug control strategy, the
devastating effects of drug use and the necessity for treatment that
includes ``continuing services and support structures over an extended
period of time''). Increased controlled substance prevalence is often
correlated with increased rates of violent crime and other criminal
activities. See 84 FR at 69650 (explaining that perpetrators of crimes
such as drug trafficking are ``displaying a disregard for basic
societal structures in preference of criminal activities that place
other members of the community * * * in danger'').
Even assuming, arguendo, the commenters are correct that such
offenses do not reflect an alien's dangerousness to the same extent as
those offenses that are formally designated ``particularly serious
crimes,'' the Departments' authority to set forth additional
limitations and conditions on asylum eligibility under section
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) requires only that
such conditions and limitations be consistent with section 208 of the
Act (8 U.S.C. 1158). See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C))
(``The Attorney General may by regulation establish additional
limitations and conditions, consistent with this section, under which
an alien shall be ineligible for asylum under paragraph (1).''). Unlike
the designation of particularly serious crimes, there is no requirement
that the aliens subject to these additional conditions or limitations
first meet a particular level of dangerousness. Compare id., with INA
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii)
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General
may designate by regulation offenses'' for which an alien would be
considered ``a danger to the community of the United States'' by virtue
of having been convicted of a ``particularly serious crime''). Instead,
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad
discretion on the Attorney General and the Secretary to establish a
wide range of conditions on asylum eligibility, and the designation of
certain drug-related offenses as defined in the rule as an additional
limitation on asylum eligibility is consistent with the rest of the
statutory scheme. For example, Congress's inclusion of other crime-
based bars to asylum eligibility demonstrates the intent to allow the
Attorney General and Secretary to exercise the congressionally provided
authority to designate additional types of criminal offenses or related
behavior as bars to asylum eligibility. See INA 208(b)(2)(A)(ii), (iii)
(particularly serious crime and serious nonpolitical crime) (8 U.S.C.
1158(b)(2)(A)(ii), (iii)). Further, as discussed at length in the NPRM,
this additional limitation on asylum eligibility is consistent with the
Act's treatment of controlled-substance offenses as offenses that may
render aliens removable from or inadmissible to the United States. 84
FR at 69654.
4. Due Process and Fairness Considerations
Comment: The Departments received numerous comments asserting that
the rule violates basic notions of fairness and due process. One
commenter asserted that anything that makes the asylum process harder,
which the NPRM does according to the commenter, is a denial of due
process. Commenters claimed that the Departments' true goal in
promulgating these rules is to reduce the protections offered by
existing asylum laws and to erode ``any semblance of due process and
justice for those seeking safety and refuge in this country.''
In addition to general objections regarding due process, commenters
asserted various constitutional problems with the proposed rule. Citing
United States v. Davis, 139 S. Ct. 2319, 2323 (2019), commenters
specified that due process requires laws and regulations to ``give
ordinary people fair warning about what the law demands of them.''
These commenters argued that the proposed rule fails to give affected
individuals fair notice of which offenses will bar asylum. Commenters
also noted that equal protection principles require the government to
treat similarly situated people in the same manner but averred that the
proposed rule, as applied, would result in similarly situated
applicants being treated differently.
Commenters stated that requiring immigration adjudicators to deny a
legal benefit, even a discretionary one, based on alleged and uncharged
conduct is a clear violation of the presumption of innocence, which the
commenters
[[Page 67237]]
argued is a fundamental tenet of our democracy.
Commenters alleged that immigration proceedings are not the proper
venue for the sort of evidentiary considerations required by the rule.
Commenters argued that asylum applicants will not have the opportunity
to be confronted by evidence or to contest such evidence in a criminal
court. These commenters noted that criminal courts afford defendants
additional due process protections not found in immigration court, such
as the right to counsel, the right to discovery of the evidence that
will be presented, and robust evidentiary rules protecting against the
use of unreliable evidence.
Similarly, commenters alleged that, due to the ``lack of robust
evidentiary rules in immigration proceedings,'' many applicants would
be unable to rebut negative evidence submitted against them, even if
the evidence submitted is false. One commenter claimed, without more,
that there is a high likelihood that such evidence is false. Commenters
were concerned that unreliable evidence would be submitted in support
of the application of the additional bars. Alternatively, commenters
stated that immigration adjudicators might rely on evidence where a
judicial court had already evaluated reliability and not credited the
evidence based on a lack of reliability. In addition, commenters were
concerned that the rule authorizes adjudicators to seek out unreliable
evidence obtained in violation of due process to determine whether an
applicant's conduct triggers the particularly serious crime bar.
Commenters were concerned that requiring applicants to disprove
allegations of gang-related activity or domestic violence would result
in re-litigation of convictions or litigation of conduct that fell
outside the scope of prior convictions. Similarly, commenters were
concerned that the rule violates due process because it requires
adjudicators to consider an applicant's conduct, separate and apart
from any criminal court decision, that may trigger a categorical bar to
asylum. One commenter asserted that ``people seeking asylum should have
the right to be considered innocent until proven guilty, and should not
be denied asylum based on an accusation.'' Moreover, commenters alleged
that this consideration extends to whether a vacated or modified
conviction or sentence still constitutes a conviction or sentence
triggering the bar to asylum.
Commenters alleged that adjudicators might improperly rely on
uncorroborated allegations in arrest reports and shield the ensuing
decision from judicial review by claiming discretion. Commenters stated
that the rule lacks safeguards to prevent such erroneous decisions.
Commenters expressed concern that asylum applicants, especially
detained applicants, would struggle to find evidence related to events
that may have occurred years prior to the asylum application. One
organization noted that the rule would be particularly challenging for
detained respondents because they often lack representation and would
be required to rebut circumstantial allegations with limited access to
witnesses and evidence.
The Departments also received numerous comments stating that asylum
hearings, which typically last three or fewer hours, provide
insufficient time to permit both parties to present full arguments on
these complex issues, as effectively required by the rule, thereby
resulting in due process violations.
One commenter raised due process and constitutional concerns if the
rule fails to provide proper notice to the alien. In that case,
commenters alleged that the Sixth Amendment right to ``be accurately
apprised by defense counsel of the immigration consequences of his
guilty plea to criminal charges'' applies but that the rule fails to
account for those consequences.
Response: The rule does not violate notions of fairness or due
process. As an initial matter, asylum is a discretionary benefit, as
demonstrated by the text of the statute, which states the Departments
``may'' grant asylum, INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)), and
which provides authority to the Attorney General and the Secretary to
limit and condition, by regulation, asylum eligibility under INA
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Courts
have found that aliens have no cognizable due process interest in the
discretionary benefit of asylum. See Yuen Jin, 538 F.3d at 156-57;
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50). In other
words, ``[t]here is no constitutional right to asylum per se.'' Mudric,
469 F.3d at 98. Thus, how the Departments choose to exercise their
authority to limit or condition asylum eligibility and an adjudicator's
consideration of an applicant's conduct in relation to asylum
eligibility do not implicate due process claims.
The rule does not ``reduce the protections offered by the asylum
laws.'' In fact, the rule makes no changes to asylum benefits at all;
rather, it changes who is eligible for such benefits. See 84 FR at
69640. Further, the rule is not intended to ``erode'' due process and
justice for aliens seeking protection; instead, the rule revises asylum
eligibility by adding categorical bars to asylum eligibility,
clarifying the effect of certain criminal convictions and conduct on
asylum eligibility, and removing automatic reconsideration of
discretionary denials of asylum. See 84 FR at 69640. Although some of
these changes may affect aliens seeking protection in the United
States, these effects do not constitute a deprivation of due process or
justice, and alternative forms of protection--withholding of removal
under the Act along with withholding of removal or deferral of removal
under the CAT regulations--remain available for qualifying aliens. See
84 FR at 69642.
Regarding commenters' concerns that the rule does not sufficiently
provide notice to aliens regarding which offenses would bar asylum
eligibility, the Departments first note that the publication of the
NPRM and this final rule serves, in part, as notice to the public
regarding which offenses bar asylum eligibility. See 5 U.S.C. 552.
Courts have held that an agency's informal rulemaking pursuant to 5
U.S.C. 553 constitutes sufficient notice to the public if it ``fairly
apprise[s] interested persons of the `subjects and issues' involved in
the rulemaking[.]'' Air Transport Ass'n of America v. FAA, 169 F.3d 1,
6 (D.C. Cir. 1999) (quoting Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 547 (D.C. Cir. 1983)).
To the extent that commenters argued that the rule is
insufficiently clear with regards to the substance of what offenses are
disqualifying,\31\ the Departments disagree. This rule clearly
establishes which offenses bar asylum by listing such offenses in
detail in the regulatory text at 8 CFR 208.13(c)(6)-(9) and
1208.13(c)(6)-(9). Unlike other statutory provisions that have been
found unconstitutionally vague,\32\ this rule clearly establishes
grounds for mandatory denial of request for asylum. 8 CFR 208.13(c)(6)-
(9), 1208.13(c)(6)-(9). The regulatory text adds paragraph (c)(7) to
specifically define terms used
[[Page 67238]]
in 8 CFR 208.13 and 1208.13, and the regulatory text otherwise
references applicable definitions for terms not found in paragraph
(c)(7). See, e.g., 8 CFR 1208.13(c)(6)(iv)(A) (defining driving while
intoxicated or impaired ``as those terms are defined under the
jurisdiction where the conviction occurred''). Further, just as the INA
contains various criminal grounds for ineligibility without specified
elements, see generally INA 101(a)(43) (8 U.S.C. 1101(a)(43)), here,
the Departments have provided a detailed list of particular criminal
offenses or related activities that would render an alien ineligible
for asylum. Accordingly, despite the commenter's argument that the
regulatory text fails to give ``fair warning'' of which offenses would
bar asylum eligibility, the regulatory text is sufficiently clear to
provide the public with the requisite notice. See Davis, 139 S. Ct. at
2323.
---------------------------------------------------------------------------
\31\ Cf. Dimaya, 138 S. Ct. at 1225 (``Perhaps the most basic of
due process's customary protections is the demand of fair
notice.'').
\32\ For example, the Court in Dimaya, 138 S. Ct. at 1222-23,
held that the Federal criminal code provision at issue was
unconstitutionally vague in part because it failed to provide
definitions for or explain such terms as ``ordinary case'' and
``violent.'' On the other hand, the term ``crime involving moral
turpitude'' has continuously been upheld as not unconstitutionally
vague, despite repeated judicial criticism. See, e.g., Islas-Veloz
v. Whitaker, 914 F.3d 1249, 1250 (9th Cir. 2019) (``the phrase
`crime involving moral turpitude' [is] not unconstitutionally
vague'').
---------------------------------------------------------------------------
The Departments acknowledge the commenters' general equal
protection concerns; however, without more detailed comments providing
for the specific concerns of commenters, the Departments are unable to
provide a complete response to these comments. The Departments note,
however, that categorical bars to asylum apply equally to all asylum
applicants and do not classify applicants on the basis of any protected
characteristic, such as race or religion.
Immigration proceedings are civil in nature; thus constitutional
protections for criminal defendants, including evidentiary rules, do
not apply. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Dallo
v. INS, 765 F.2d 581, 586 (6th Cir. 1985); Baliza v. INS, 709 F.2d
1231, 1233 (9th Cir. 1983); Longoria-Castaneda v. INS, 548 F.2d 233
(8th Cir. 1977). In addition, any determinations regarding evidence or
other related procedural issues by a criminal court do not
automatically apply in a subsequent immigration proceeding or asylum
interview. The Departments emphasize that the NRPM did not propose and
the final rule does not enact any changes to the immigration court or
asylum interview rules of procedure or evidentiary consideration
processes. Accordingly, adjudicators will continue to receive and
consider ``material and relevant evidence,'' and it is the adjudicator
who determines what evidence so qualifies. 8 CFR 1240.1(c). Immigration
adjudicators regularly consider and receive evidence regarding criminal
offenses or conduct in the context of immigration adjudications,
including asylum applications, where such evidence has been frequently
considered as part of the ``particularly serious crime'' determination
or as part of the ultimate discretionary decision. Cf. Matter of Jean,
23 I&N Dec. 373, 385 (A.G. 2002) (holding that aliens convicted of
violent or dangerous offenses generally do not merit asylum as a matter
of discretion).
Many of the commenters' concerns rely on circumstances that are
purely speculative or that are only indirectly implicated by the rule.
For example, commenters' concerns regarding an alien's hypothetical
inability to confront evidence require first that concerning evidence
is at issue, that such evidence is false, and finally that the alien is
unable (for reasons unspecified by commenters) to rebut such evidence.
Likewise, commenters' concerns regarding evidence supporting the bars
rest on the premise that such specific evidence is submitted in the
future, that such evidence has not been tested, and that such evidence
is thus unreliable. Regarding these concerns, the Departments are
unable to comment on speculative examples.
In regard to commenters' concerns about the reliability
determinations of evidence already made by judicial courts, the
regulations require that immigration judges consider material and
relevant evidence. See 8 CFR 1240.1(c). Immigration judges consider
whether evidence is ``probative and whether its use is fundamentally
fair so as not to deprive the alien of due process of law.'' Ezeagwuna,
325 F.3d at 405 (quoting Bustos-Torres, 898 F.2d at 1055). The rule
does not undermine or revise that standard; thus, commenters' concerns
are unwarranted.
In general, commenters' concerns are no different than existing
concerns regarding the reliability of evidence submitted by aliens in
asylum cases, which is generally rooted in hearsay, frequently cannot
be confronted or rebutted, and is typically uncorroborated except by
other hearsay evidence. See, e.g., Angov v. Lynch, 788 F.3d 893, 901
(9th Cir. 2015) (``The specific facts supporting a petitioner's asylum
claim--when, where, why and by whom he was allegedly persecuted--are
peculiarly within the petitioner's grasp. By definition, they will have
happened at some time in the past--often many years ago--in a foreign
country. In order for [DHS] to present evidence `refuting or in any way
contradicting' petitioner's testimony, it would have to conduct a
costly and often fruitless investigation abroad, trying to prove a
negative--that the incidents petitioner alleges did not happen.''
(quoting Abovian v. INS, 257 F.3d 971, 976 (9th Cir. 2001) (Kozinski,
J., dissenting from denial of petition for rehearing en banc)));
Mitondo v. Mukasey, 523 F.3d 784, 788 (7th Cir. 2008) (``Most claims of
persecution can be neither confirmed nor refuted by documentary
evidence. Even when it is certain that a particular incident occurred,
there may be doubt about whether a given alien was among the victims.
Then the alien's oral narration must stand or fall on its own terms.
Yet many aliens, who want to remain in the United States for economic
or social reasons unrelated to persecution, try to deceive immigration
officials.''). Asylum adjudicators are well experienced at separating
reliable from unreliable evidence, regardless of its provenance, and
this rule neither inhibits their ability to do so nor changes the
process for assessing evidence.
Further, as discussed in the preamble to the proposed rule, the
rule contemplates the consideration of all ``reliable'' evidence and
authorizes adjudicators to assess all ``reliable'' evidence. 84 FR at
69649 and 69652. The rule does not encourage adjudicators to ``seek out
unreliable evidence,'' as commenters alleged. Accordingly, the
Departments disagree with commenters that adjudicators will improperly
rely on information in arrest reports that the adjudicators have
determined is unreliable, and the Departments further disagree that
adjudicators would seek to protect such decisions by claiming
discretion.
As explained in section II.C.2.a.i, the rule establishes limits and
conditions on asylum eligibility; it does not add offenses to the
``particularly serious crime'' bar. See 8 CFR 208.13(c)(6),
1208.13(c)(6) (both using prefatory language that reads ``[a]dditional
limitations on eligibility for asylum''). To the extent that
commenters' concerns relate specifically to the ``particularly serious
crime'' bar, the Departments decline to respond because those concerns
are outside the scope of this rulemaking.
Regarding commenters' concerns that the domestic violence and gang-
related bars to asylum eligibility would violate due process due to the
requirement that the adjudication re-litigate the offense or consider
conduct separate and apart from a criminal conviction, the Departments
first note that there has never been a prohibition on the consideration
of conduct when determining the immigration consequences of an offense
or action.\33\
[[Page 67239]]
Further, the consideration of conduct in this manner matches certain
bars to admissibility or bases of deportability under the INA. See,
e.g., INA 212(a)(2)(C)(i) (8 U.S.C. 1182(a)(2)(C)(i)) (instructing that
an alien who the relevant official ``knows or has reason to believe * *
* is or has been an illicit trafficker in any controlled substance'' is
inadmissible); INA 212(a)(2)(H) (8 U.S.C. 1182(a)(2)(H)) (instructing
that an alien who the relevant official ``knows or has reason to
believe is or has been * * * a trafficker in severe forms of
trafficking in persons'' is inadmissible); INA 237(a)(2)(F) (8 U.S.C.
1227(a)(2)(F)) (instructing that an alien described in section
212(a)(2)(H) of the Act (8 U.S.C. 1182(a)(2)(H)) is deportable); see
also, e.g., Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1207-08 & n.1 (9th
Cir. 2004) (explaining that the immigration judge found the respondent
removable due to a reason to believe he was a controlled substance
trafficker on account of a prior arrest report and information
surrounding his conviction for misprision of a felony). In addition,
the consideration of the alien's conduct in these circumstances is
consistent with the consideration of conduct when reviewing a
circumstance-specific ground of removability or deportability. See
Nijhawan, 55 U.S. at 38.
---------------------------------------------------------------------------
\33\ To the extent the issues raised by commenters relate to the
domestic violence provision of the rule that is not based on a
criminal conviction, the Departments note that regulations have
considered similar conduct in the context of immigration law for
nearly 25 years with no recorded challenges to the provisions of 8
CFR 204.2(c)(1)(i)(E) as a violation of due process.
---------------------------------------------------------------------------
Further, as discussed above, the rule does not violate due process
because asylum is a discretionary benefit that does not implicate a
liberty interest. See Yuen Jin, 538 F.3d at 156-57 (collecting cases);
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50); cf.
Hernandez, 884 F.3d at 112 (stating, in the context of duress waivers
to the material support bar, that ``aliens have no constitutionally-
protected `liberty or property interest' in such a discretionary grant
of relief for which they are otherwise statutorily ineligible'');
Obleshchenko, 392 F.3d at 971 (finding that an alien has no right to
effective assistance of counsel with regard to an asylum claim because
there is no liberty interest in a statutorily created, discretionary
form of relief, but distinguishing withholding of removal). In
addition, aliens may provide argument and evidence that they are not
subject to an asylum bar. See 8 CFR 1240.8(d) (providing that the alien
bears the burden of proof to show that a basis for mandatory denial
does not apply); see also 84 FR at 69642.
Finally, commenters' Sixth Amendment concerns, including the
presumption that a person is ``innocent until proven guilty'' are
inapposite. The protections afforded by that amendment apply to
criminal defendants, and asylum applicants in immigration proceedings
are not criminal defendants. See, e.g., Ambati v. Reno, 233 F.3d 1054,
1061 (7th Cir. 2000) (``Deportation hearings are civil proceedings, and
asylum-seekers, therefore, have no Sixth Amendment right to
counsel.''); Lavoie v. Immigration and Naturalization Service, 418 F.2d
732, 734 (9th Cir. 1969) (``[D]eportation proceedings are civil and not
criminal, in nature, and [] the rules * * * requiring the presence of
counsel during interrogation, and other Sixth Amendment safeguards, are
not applicable to such proceedings.''); Lyon v. U.S. Immigr. and
Customs Enf't, 171 F. Supp. 3d 961, 975 (N.D. Cal 2016) (``[T]he Ninth
Circuit has never so held, and the Court is reluctant to so interpret
the INA absent any indication that Congress intended to import full
Sixth Amendment standards into the INA.'').
The Departments maintain that they have correctly concluded that
convictions pursuant to expunged or vacated orders or modified
sentences remain effective for immigration purposes if the underlying
reason for expungement, vacatur, or modification was for
``rehabilitation or immigration hardship.'' Matter of Thomas and
Thompson, 27 I&N Dec. at 680; see also 84 FR at 69655. Courts also
support this principle, stating that it is ``entirely consistent with
Congress's intent * * * [to] focus[ ] on the original attachment of
guilt (which only a vacatur based on some procedural or substantive
defect would call into question)'' and to ``impose[ ] uniformity on the
enforcement of immigration laws.'' Saleh, 495 F.3d at 24.
Next, contrary to commenters' concerns, this rule does not violate
principles such as being ``innocent until proven guilty.'' Convictions
and sentences are not re-litigated during immigration proceedings.
Rather, convictions and sentences at issue in immigration proceedings
have already been determined in a separate hearing, consistent with due
process, and ``[l]ater alterations to that sentence that do not correct
legal defects[ ] do not change the underlying gravity of the alien's
action.'' Matter of Thomas and Thompson, 27 I&N Dec. at 683. Congress
determined that immigration consequences should attach to an alien's
original conviction and sentencing, pursuant to section 101(a)(48) of
the Act (8 U.S.C. 1101(a)(48)). See id. Thus, the Departments do not
deprive an alien of due process or presume guilt when an alien's
conviction or sentence, if expunged, vacated or modified for
rehabilitation or immigration purposes, remains effective for
immigration proceedings, including asylum adjudications, because such
an expungement, vacatur, or modification does not call into question
whether the underlying criminal proceedings themselves complied with
due process.
The Departments once again reiterate their statutory authority to
limit and condition asylum eligibility consistent with the statute. See
INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). In
accordance with that authority, the Departments promulgated the NPRM
and believe that the provisions of this final rule are sufficient
without commenters' recommended safeguards.
Finally, issues involving evidence gathering are beyond the scope
of this rulemaking. For issues regarding representation, see section
II.C.6.h. The Departments disagree that hearings lack sufficient time
for both parties to present arguments. See Office of the Chief
Immigration Judge, Immigration Court Practice Manual, 68-69 (Mar. 17,
2020), https://www.justice.gov/eoir/page/file/1258536/download (noting
that, at a master calendar hearing, a respondent should be prepared
``to estimate (in hours) the amount of time needed to present the case
at the individual calendar hearing''). Moreover, if parties believe
additional time is needed, the regulations provide a mechanism for them
to seek additional time through a motion for continuance. See 8 CFR
1003.29.
5. Insufficient Alternative Protection From Removal
Comment: The Departments received numerous comments alleging that
withholding of removal under the Act and protection under the CAT
regulations are insufficient alternative forms of protection for
individuals barred from asylum pursuant to the proposed rule. Overall,
commenters believed that refugees ``should not be required to settle
for these lesser forms of relief.'' Commenters averred that the
availability of these forms of protection does not justify the serious
harm caused by the proposed rule's ``overly harsh and broad limits on
asylum.'' Specifically, statutory withholding of removal and protection
under the CAT regulations are much narrower in scope and duration than
asylum and require applicants to establish a higher burden of proof.
One commenter noted that, even if an applicant was able to meet the
higher burden of proof for statutory withholding of removal or
protection
[[Page 67240]]
under the CAT regulations, the individual would not then be accorded
the benefits required by the Refugee Convention.
Commenters cited a number of limitations imposed on recipients of
these forms of protection to demonstrate why they are insufficient
alternatives to asylum. For example, commenters expressed concern
regarding the prohibition on international travel for recipients of
statutory withholding of removal and CAT protection. Commenters noted
that, unlike recipients of asylum, these individuals are not provided
travel documents. At the same time, because these individuals have been
ordered removed but that removal has been withheld or deferred, any
international travel would be considered a ``self-deportation,''
foreclosing any future return to the United States. Commenters stated
that this conflicts with the Refugee Convention, which requires that
contracting states issue travel documents for international travel to
refugees lawfully staying in their territory.
Commenters also claimed the proposed rule contravenes the Refugee
Convention by failing to ensure ``that the unity of the refugee's
family is maintained particularly in cases where the head of the family
has fulfilled the necessary conditions for admission to a particular
country.'' Commenters alleged that individuals who are granted
statutory withholding of removal or protection under the CAT
regulations would be unable to reunite with family in the United States
because these forms of relief do not allow the recipient to petition
for derivative beneficiaries. Due to this, commenters stated that the
proposed rule instituted another formal policy of family separation
that permanently separate spouses and children from their family
members.
Commenters also stated that the proposed rule would lead to
additional forms of family separation because spouses and minor
children who traveled with the primary asylum seeker would still need
to establish individual eligibility for statutory withholding of
removal or protection under the CAT regulations because there is no
derivative application available in such circumstances. Also,
commenters expressed concern that, without the ability to petition for
additional family members, the proposed rule would force family members
who remain in danger abroad to make the journey to the United States
alone, likely endangering children who might be forced to make the
journey as unaccompanied minors.
As another example of the lesser benefits of statutory withholding
of removal and protection under the CAT regulations, commenters noted
that recipients of withholding of removal must apply annually for work
authorization. Commenters explained that individuals not only have to
pay for these work authorization applications, but also face delays in
adjudication of work authorization applications, which often results in
the loss of legal authorization to work.
Similarly, commenters noted that recipients of statutory
withholding of removal or protection under the CAT regulations may lose
access to Federal public benefits, including ``supplemental security
income, food stamps, Medicaid, and cash assistance.'' Commenters
expressed concern that, although recipients of withholding of removal
may be eligible for a period of seven years to receive Federal means-
tested public benefits, after seven years, the presumption is that the
alien would have adjusted status. However, because recipients of
withholding of removal are not provided a pathway to lawful permanent
residency, commenters expressed concern that vulnerable individuals
such as those who are disabled or elderly would be at risk of losing
those public benefits.
Commenters also noted that recipients of statutory withholding of
removal and protection under the CAT regulations remain in a tenuous
position because they are not granted lawful status to remain in the
United States indefinitely. Commenters averred that this contravenes
the Refugee Convention by failing to ``as far as possible facilitate
the assimilation and naturalization of refugees.'' Recipients of
statutory withholding of removal or protection under the CAT
regulations may have their status terminated at any time based on a
change in the conditions of their home country. Commenters explained
that, because these individuals have no access to permanent residence
or citizenship, they may be required to check in with immigration
officials periodically. Commenters claimed that, at these check-ins,
individuals may be required to undergo removal to a third country to
which the individual has no connection.
Because of the constant prospect of deportation or removal,
commenters stated that recipients of withholding or CAT protection are
in a constant state of uncertainty. This uncertainty, commenters
alleged, is particularly harmful to asylum seekers who have experienced
severe human rights abuses. Commenters argued that certainty of a safe
place to live forever is one of the most important aspects of the
treaties establishing the refugee system. Commenters claimed that
uncertainty and limbo discourage recipients from establishing
connections to the United States, which in turn generates community
instability. Commenters alleged that a lack of community stability will
result in increased criminal activity as individuals are less
incentivized to invest in the community or keep the community safe.
Additionally, this uncertainty may reduce the incentive for individuals
to invest in their community by, for example, opening businesses,
hiring others, or paying taxes.
Commenters were concerned that increasing the population of people
who are ineligible to receive asylum may create a cohort of individuals
who will later need a ``legislative fix'' to adjust their status and
grant them full rights as citizens.
Finally, commenters noted that both statutory withholding of
removal and protection under the CAT regulations require a higher
burden of proof than asylum. Commenters explained that asylum requires
only that the applicant demonstrate at least a 10 percent chance of
being persecuted if removed. Withholding of removal, either under the
Act or under the CAT regulations, however, requires the applicant to
demonstrate that it is more likely than not that he or she would be
persecuted or tortured if returned--i.e., he or she must show a more
than fifty percent chance of being persecuted or tortured if removed.
Commenters noted that, because of this higher burden of proof, an
applicant may have a valid and strong asylum claim but be unable to
meet the burden for statutory withholding of removal or protection
under the CAT regulations. As a result, commenters alleged that an
individual may be returned to a country where he or she would face
persecution or even death.
Commenters averred that the Departments failed to provide an
assessment of how many individuals subject to the new categorical bars
could meet the higher burdens required for statutory withholding of
removal and protection under the CAT regulations.
Response: The Departments maintain that statutory withholding of
removal under the Act and protection under the CAT regulations are
sufficient alternatives for individuals who are barred from asylum by
one of the new bars. As stated, asylum is a discretionary form of
relief subject to regulation and limitations by the Attorney General
and the Secretary. See
[[Page 67241]]
INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Significantly, the United
States implemented the non-refoulement provisions of Article 33(1) of
the Refugee Convention and Article 3 of the CAT through the withholding
of removal provision at section 241(b)(3) of the Act (8 U.S.C.
1231(b)(3)), and the CAT regulations, rather than through the asylum
provisions at section 208 of the Act (8 U.S.C. 1158). See Cardoza-
Fonseca, 480 U.S. at 429, 440-41; see also 8 CFR 208.16 through 208.1;
1208.16 through 1208.18.
As recognized by commenters, asylum recipients are granted
additional benefits not granted to recipients of statutory withholding
of removal or CAT protection. Although the Attorney General and the
Secretary are authorized to place limitations on those who receive
asylum, it is Congress that delineates the attendant benefits to
receiving relief or protection under the INA. See, e.g., INA
208(c)(1)(A), (C) (8 U.S.C. 1158(c)(1)(A), (C)) (asylees cannot be
removed and can travel abroad without prior consent); INA 208(b)(3) (8
U.S.C. 1158(b)(3)) (allowing derivative asylum for asylee's spouse and
unmarried children); INA 209(b) (8 U.S.C. 1159(b)) (allowing the
Attorney General or the Secretary to adjust the status of an asylee to
that of a lawful permanent resident). Commenters identified various
benefits that would be denied to individuals who receive statutory
withholding of removal or protection under the CAT regulations as
opposed to asylum. Congress chose not to provide the identified
immigration benefits to recipients of statutory withholding of removal
under the Act or protection under the CAT regulations. Congress, of
course, may always revisit its decision; however, that is not the
proper role of the Executive Branch.
Moreover, the United States is not required under U.S. law to
provide the benefits identified by commenters to all individuals who
seek asylum. For example, the valuable benefit of permanent legal
status is not required under the United States' international treaty
obligations.
In addition, recipients of statutory withholding of removal are
eligible for numerous public benefits. Specifically, recipients of
statutory withholding are eligible for Supplemental Security Income
(``SSI''), the Supplemental Nutrition Assistance Program (``SNAP,''
also known as food stamps), and Medicaid for the first seven years
after their applications are granted,\34\ and for Temporary Assistance
to Needy Families (``TANF'') during the first five years after their
applications are granted.\35\ Although asylees are eligible for
additional benefits administered by HHS and ORR, the Departments
believe that it is reasonable to exercise their discretion under U.S.
law to limit these benefits to asylum recipients who do not have or who
have not been found to have engaged in the sort of conduct identified
in the bars to asylum eligibility being implemented in this rule
because doing so incentivizes lawful behavior.
---------------------------------------------------------------------------
\34\ 8 U.S.C. 1612(a)(1), (a)(2)(A)(iii), (a)(3) (SSI & SNAP); 8
U.S.C. 1612(b)(1), (b)(2)(A)(i)(III), (b)(3)(C) (Medicaid).
\35\ 8 U.S.C. 1612(b)(1), (b)(2)(A)(ii)(III), (b)(3)(A)-(B)
(TANF and Social Security Block Grant); 8 U.S.C. 1622(a), (b)(1)(C);
8 U.S.C. 1621(c) (state public assistance).
---------------------------------------------------------------------------
Commenters' assertions that statutory withholding of removal and
protection under the CAT regulations essentially trap individuals in
the United States is misplaced. Although an individual who has been
granted these forms of protection is not guaranteed return to the
United States if he or she leaves the country, these forms of
protection do not prevent individuals from traveling outside the United
States. See Cazun, 856 F.3d at 257 n.16.
To the extent commenters raised concerns that recipients of
statutory withholding and CAT protection must apply annually for work
authorization, the United States is permitted to place restrictions on
work authorization. As required by Article 17 of the Refugee
Convention, the United States must accord refugees ``the most
favourable treatment accorded to nationals of a foreign country in the
same circumstances.'' Individuals who have received a grant of
withholding of removal or protection under the CAT regulations are not
in the same position as an individual who has been granted lawful
permanent resident status. Rather, these individuals have been ordered
removed and had their removal withheld or deferred pursuant to a grant
of withholding of removal or protection under the CAT regulations. The
United States has opted to grant these individuals work authorization,
despite their lack of permanent lawful status. However, because these
individuals are not accorded permanent lawful status, the United States
has determined that they must submit a yearly renewal for that work
authorization.
Significantly, although the burden of proof to establish statutory
withholding of removal or protection under the CAT regulations is
higher than to establish asylum, this burden remains in compliance with
the Protocol and Refugee Convention, which require that ``[n]o
Contracting State shall expel or return (`refouler') a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion,'' and Article 3 of the CAT, which similarly requires that
``[n]o State Party shall expel, return * * * or extradite a person to
another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.'' As explained by the
Supreme Court with respect to statutory withholding of removal, the use
of the term ``would'' be threatened as opposed to ``might'' or
``could'' indicates that a likelihood of persecution is required.
Stevic, 467 U.S. at 422. Citing congressional intent to bring the laws
of the United States into compliance with the Protocol, the Court
concluded that Congress intended withholding of removal to require a
higher burden of proof and that the higher burden complied with Article
33 of the Refugee Convention. Id. at 425-30. Similarly, the ``burden of
proof for an alien seeking CAT protection is higher than the burden for
showing eligibility for asylum.'' Lapaix v. U.S. Att'y Gen., 605 F.3d
1138, 1145 (11th Cir. 2010). As with statutory withholding of removal
and the risk of persecution, the burden of proof for CAT protection and
the risk of torture is ``more likely than not.'' Compare 8 CFR
1208.16(b)(2) (statutory withholding), with 1208.16(c)(2) (CAT
protection).\36\
---------------------------------------------------------------------------
\36\ The burden associated with the CAT regulations is
consistent with congressional intent. As the Third Circuit has
noted, the U.S. Senate gave its advice and consent to ratification
of the CAT subject to several reservations, understandings, and
declarations, including that the ``United States understands the
phrase `where there are substantial grounds for believing that he
would be in danger of being subjected to torture,' as used in
Article 3 of the Convention, to mean `if it is more likely than not
that he would be tortured.' '' Auguste, 395 F.3d at 132.
---------------------------------------------------------------------------
In response to commenters who asserted that the Departments failed
to provide an assessment of how many individuals subject to the new
categorical bars could meet the higher burdens required for statutory
withholding of removal and protection under the CAT regulations, the
Departments note that such an assessment would not be feasible. The
Departments do not maintain data on the number of asylum applicants
with criminal convictions or, more specifically, with criminal
convictions or pertinent criminal conduct that would be subject to the
bars added by this rule. Without this data, the
[[Page 67242]]
Departments cannot reliably estimate the population affected by this
rule. In addition, even with these statistics, it is impossible to
accurately predict in advance whether immigration judges would grant
these individuals statutory withholding of removal or protection under
the CAT regulations due to the fact-bound nature of such claims, the
various factors that must be established for each claim (e.g.,
credibility), independent nuances regarding the claim, evidence
submitted, and myriad other factors.
6. Policy Concerns
a. Unfair, Cruel Effects on Asylum Seekers
Comment: Commenters opposed the rule because, among many reasons,
they alleged that it imposes unfair, cruel effects on aliens who would
otherwise be eligible for asylum. Commenters alleged that the rule
constitutes an ``unnecessary, harsh, and unlawful gutting of [ ] asylum
protections.'' Commenters also alleged that the rule disadvantages
asylum seekers because, in comparison to other forms of relief, no
waiver of inadmissibility is available to waive misdemeanor
convictions, rendering asylum ``disproportionately and
counterintuitively more difficult to obtain for some of the most
vulnerable people.'' Many commenters were also concerned that the rule
denies protection to people who most need it and whom the asylum system
was designed to protect. For those people, commenters stated, asylum is
their ``only pathway to safety and protection.''
Many commenters expressed opposition to the rule by claiming that
the rule will exclude bona fide refugees from asylum eligibility.
Relatedly, commenters also opposed the rule because they alleged that
it prevents aliens from presenting meritorious, legitimate claims.
Overall, most commenters asserted that the consequence of asylum
ineligibility was ``disproportionately harsh.'' In support, commenters
provided various examples of offenses that would, in their view,
unjustly render an alien ineligible for asylum under the rule: An alien
in Florida who stole $301 worth of groceries; an alien with two
convictions for DUI, regardless of whether the alien seeks treatment
for alcohol addiction or the circumstances of the convictions; an alien
defensively seeking asylum who has been convicted of a document fraud
offense related to his or her immigration status; or a mother convicted
for bringing her own child across the southern border seeking safety.
Commenters alleged that aliens seeking asylum are typically fleeing
persecution or death, so ineligibility based on such minor infractions
constitutes ``punishment that clearly does not fit the crime.'' As
stated by one commenter, ``Congress designed our current laws to
provide a safe haven for asylum seekers and their immediate family
members who are still in danger abroad. If an asylum claim is denied,
those individuals may be killed, tortured, or subjected to grave harm
after being deported.''
Commenters also opposed the rule by claiming that it bars asylum
for aliens ``simply accused'' of engaging in battery or extreme
cruelty; commenters believed it to be unfair that the rule could bar
asylum based on conduct without a conviction.\37\ Commenters opposed
barring asylum relief based on ``mere allegations'' without any
``adjudication of guilt.'' One commenter stated that the rule exceeds
the scope of the Act because, the commenter claimed, the INA allows
asylum bars to be based only on convictions for particularly serious
crimes.
---------------------------------------------------------------------------
\37\ Further discussions of comments specifically regarding
allegations of gang-related activity and domestic violence are
contained in sections II.C.3.d and II.C.3.f, respectively.
---------------------------------------------------------------------------
Many commenters expressed opposition to a wide range of issues
related to asylum seekers. One commenter expressed concern with the
treatment of immigrants, stating that mistreatment ``increases blood
pressure, diabetes, and risks for acute crises like heart attacks[,]
which harm immigrant communities and negatively impact our healthcare
system.'' Another commenter expressed opposition to the United States'
allocation of resources, stating that the redirection of tax cuts and
expanded military budgets could help to assist asylum seekers. Others
more broadly expressed general opposition to family separation without
relating that concern to this rule.
Response: The Departments disagree that the rule ``guts'' asylum
protections or that the rule affects otherwise eligible asylum
applicants in an unfair or otherwise cruel manner. First, as discussed
elsewhere, asylum is a discretionary form of relief. See INA
208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)). Accordingly, aliens who apply
for asylum must establish that they are statutorily eligible for asylum
and merit a favorable exercise of discretion. See id.; INA 240(c)(4)(A)
(8 U.S.C. 8 U.S.C. 1229a(c)(4)(A)); see also Matter of A-B-, 27 I&N
Dec. 316, 345 n.12 (A.G. 2018), abrogated on other grounds by Grace v.
Whitaker, 344 F. Supp. 3d 96, 140 (D.D.C. 2018), aff'd in part, Grace
v. Barr, 965 F.3d 883 (D.C. Cir. 2020). Over time, Congress, the
Attorney General, and the Secretary have established various categories
of aliens who are barred from asylum and have established additional
limitations and conditions on asylum eligibility in keeping with the
Departments' congressionally provided authority. See INA 208(b)(2)(C),
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)); see also 84 FR at 69641.
Rather than ``gut'' asylum protections, the rule narrows asylum
eligibility by adding categorical bars for aliens who have engaged in
certain criminal conduct that the Departments have determined
constitutes a disregard for the societal values of the United States;
clarifies the effect of criminal convictions on asylum eligibility; and
removes reconsideration of discretionary denials of asylum. See 84 FR
at 69640. The Departments establish these changes as additional
limitations and conditions on asylum eligibility, pursuant to their
statutory authority in sections 208(b)(2)(C) and (d)(5)(B) (8 U.S.C.
1158(b)(2)(C), (d)(5)(B)).
Further, the Departments promulgate this rule to streamline
determinations for asylum eligibility so that those who qualify for and
demonstrate that they warrant a favorable exercise of discretion might
be granted asylum and enjoy its ancillary benefits in a more timely
fashion. Given the rule's clarified conditions and limitations on
asylum eligibility, the Departments anticipate more timely
adjudications for two reasons. First, non-meritorious claims will more
quickly be resolved because the rule eliminates the current system of
case-by-case adjudications and application of the categorical approach
with respect to aggravated felonies, thereby freeing up time and
resources that can be subsequently allocated towards adjudication of
meritorious asylum claims. Second, the Departments believe that,
because fewer people would be eligible for asylum, fewer applications
may be filed overall, thereby reducing the total number of asylum
applications requiring adjudication. As a result, the Departments could
allocate their time and resources to asylum applications that are more
likely to be meritorious. In this way, the rule does not eliminate
protection for those who need it most or the benefits available to
asylees; instead, it may actually allow for those people to more
quickly receive protection.
In response to commenters who claim that the rule prevents aliens
from seeking asylum who otherwise have meritorious claims, the
Departments
[[Page 67243]]
emphasize that the rule changes asylum eligibility. Accordingly,
despite commenters' assertions, an alien who is ineligible under the
provisions of this rule would not, in fact, have a meritorious claim.
The Departments do not believe that the examples of misdemeanors
that commenters provided in response to the request for public feedback
about whether the proposed rule was over-inclusive warrant altering the
scope of the proposed rule. Regarding certain referenced examples, the
Departments strongly disagree that the rule employs too harsh a
consequence or that the ``punishment does not fit the crime.'' The bars
articulated in this rule indicate the Departments' refusal to harbor
individuals who have committed conduct that the Departments have
determined is undesirable. This is not a punishment. For example, the
Departments strongly oppose driving under the influence and disagree
that two DUI convictions, regardless of the circumstances or harm
caused to others, do not warrant ineligibility for asylum. As
previously stated, driving under the influence represents a blatant
disregard for the laws of the United States. Further, the Departments
disagree that document fraud does not warrant ineligibility for asylum,
as it undermines the integrity of our national security and the rule of
law. Overall, the Departments disagree that such examples demonstrate
that revision of the rule is warranted.
The Departments further disagree that the rule disadvantages asylum
seekers by failing to provide a waiver of inadmissibility for
misdemeanor convictions. No such waiver is required by statute in the
asylum eligibility context. Further, the Departments reiterate that
alternative forms of relief or protection may still be available for
aliens who are ineligible for asylum under the rule. See 84 FR at 69658
(explaining that an alien will still be eligible to apply for statutory
withholding of removal or protection under regulations implementing
U.S. obligations under Article 3 of the CAT); see also INA 241(b)(3) (8
U.S.C. 1231(b)(3)); 8 CFR 208.16 through 208.18; 1208.16 through
1208.18; cf. Negusie v. Holder, 555 U.S. 511, 527-28 (2009) (Scalia, J.
and Alito, J., concurring) (noting that, if asylum is denied under the
persecutor bar to an alien who was subject to coercion, that alien
``might anyway be entitled to protection under the Convention Against
Torture''). Accordingly, aliens who are ineligible for asylum under the
rule will not ``automatically'' be returned to countries where they
fear persecution or torture, contrary to commenters' assertions.
The Departments emphasize that the rule changes the asylum
eligibility regulations, but it does not affect the regulatory
provisions for refugee processing under 8 CFR parts 207, 209, 1207, and
1209. Further, it does not categorically exclude ``bona fide refugees''
from the United States.
The INA does not preclude conduct-based bars. In fact, the statute
already contemplates conduct-based bars in sections 208(b)(2)(A)(i),
(iii)-(v) of the Act (8 U.S.C. 1158(b)(2)(A)(i), (iii)-(v)). Thus,
commenters' concerns that the rule exceeds the scope of the statute are
unwarranted, and the Departments choose, pursuant to statutory
authority, to condition and limit asylum eligibility using conduct-
based bars.
Relating to commenters' general humanitarian concerns for asylum
seekers, such concerns are outside of the scope of this rulemaking, and
the Departments decline to address them. Whether the current statutory
framework appropriately addresses all aspects of the problems faced by
aliens seeking asylum is a matter for Congress; here, the Departments
merely exercise their authority under the discretion afforded to them
by the existing statutes.
b. Incorrect Assumptions Regarding Criminal Convictions
Comment: Commenters alleged that the Departments promulgated the
proposed rule based on incorrect assumptions regarding criminal
convictions. Generally, commenters asserted that a conviction, without
more, is both an unreliable predictor of future danger and an
unreliable indicator of past criminal conduct. As an example,
commenters stated that an alien may plead guilty to certain crimes to
avoid the threat of a more severe sentence.
Commenters also asserted that not every noncitizen convicted of a
crime punishable by more than one year in prison constitutes a danger
to the community, which relates to the more general proposition
advanced by commenters that the length of a sentence does not
necessarily correlate with the consequential nature of the crime. One
commenter mentioned that innocence and biased enforcement concerns
underlie convictions and that there is a ``growing understanding
domestically that a criminal conviction is a poor metric for assessing
current public safety risk.'' Another commenter disagreed with the
Departments' use of ``public safety'' as a justified reason for
restricting liberty--in this case, liberty of asylum seekers.
Commenters claimed that the Departments provided no evidence
underlying these assumptions. Further, commenters alleged that the
proposed rule is arbitrary and capricious in violation of the
Administrative Procedure Act (``APA'') because of these faulty
assumptions.
Response: The Departments disagree that this rule was based on
incorrect assumptions. The Departments have concluded that convictions
with longer sentences tend to be associated with more consequential
crimes and that offenders who commit such crimes are generally more
likely to be dangerous to the community, and less deserving of the
benefit of asylum, than offenders who commit crimes punishable by
shorter sentences. See 84 FR at 69646. This determination is supported
throughout the nation's criminal law framework. For example, for
sentencing for Federal crimes, criminal history serves as a ``proxy''
for the need to protect the public from the defendant's future crimes.
See United States v. Hayes, 762 F.3d 1300, 1314 n.8 (11th Cir. 2008);
see also U.S. Sentencing Guidelines Manual Sec. 4A1.2 cmt. Background
(U.S. Sentencing Comm'n 2018). Further, in numerous Federal statutes
and the Model Penal Code, crimes with a possible sentence exceeding one
year constitute ``felonies'' regardless of the assumptions and
implications referenced by the commenters. See, e.g., 84 FR at 69646
(providing 5 U.S.C. 7313(b); Model Penal Code Sec. 1.04(2); and 1
Wharton's Criminal Law Sec. 19 & n.23 (15th ed.) as exemplary
authorities that define ``felony,'' in part, by considering whether the
sentence may exceed one year). Accordingly, and pursuant to their
statutory authority, the Departments have determined that similarly
conditioning asylum eligibility on criminal convictions with possible
sentences of more than one year is proper and reasonable because such
convictions are general indicators of social harm and conduct that the
Departments have deemed undesirable.
Regarding commenters' claims that the proposed rule is arbitrary
and capricious because it is based on faulty assumptions, the
Departments respond in section II.D.1, which addresses comments related
to the APA and other regulatory requirements.
c. Disregards Criminal Activity Linked to Trauma
Comment: Many commenters expressed opposition to the rule by
alleging that it disregards the reality that criminal activity is
oftentimes linked to trauma experienced by asylum seekers
[[Page 67244]]
in their countries of origin or on their journey to safety. Citing
statistics and evidence regarding the vulnerability of asylum seekers
and the high likelihood that they have experienced various forms of
trauma related to the circumstances from which they are trying to
escape and a lack of affordable healthcare, commenters asserted that
asylum seekers are at a higher risk of self-medicating with drugs or
alcohol, which in turn would increase the likelihood for asylum seekers
to be involved in the criminal justice system and, as a result of the
rule, ineligible for asylum. Commenters stated that aliens with
substance use disorders, drug-related convictions, and other related
addictions should be provided with ``treatment and compassion'' and not
barred from asylum eligibility. A commenter stated that the rule
renders aliens who have experienced persecution and subsequent trauma
``at greater risk of being returned to a country where they will only
be further tortured and harmed.''
Commenters claimed that denying aliens who have experienced such
trauma the opportunity to present countervailing factors regarding
their subsequent or associated criminal activity was ``simply cruel.''
Commenters alleged that the rule ignores the fact that these aliens
likely struggle with post-traumatic stress disorder, other untreated
mental health problems such as anxiety or depression, substance use
disorders or addictions, self-medication, poverty, and over-policing.
Accordingly, commenters stated that the rule would ``further
marginalize asylum seekers already struggling with trauma and
discrimination'' and exclude ``those convicted of offenses that are
coincident to their flight from persecution.''
Some commenters emphasized the trauma experienced by children prior
to arriving in the United States and in ORR custody. Those commenters
also emphasized that many children are then convicted and tried as
adults for crimes stemming from that trauma, which, under the NPRM,
would bar them from asylum. The commenters stated that such children,
if given appropriate treatment, support, and services, are able to
recover rather than remain in the juvenile or criminal justice systems.
Accordingly, commenters disagreed with the NPRM's approach of
categorically barring such individuals and preventing them from
presenting context and mitigating evidence for their crimes.
Response: The Departments acknowledge the trauma aliens may face
but note that aliens barred from asylum eligibility may still be
eligible for alternative measures of protection precluding their return
to a country where they experienced torture or persecution resulting in
trauma. See 84 FR at 69642. The Departments, however, disagree that the
possibility of personal trauma or other strife is sufficient to
overcome the dangerousness or harms to society posed by the offenders
subject to the sorts of bars to asylum implemented by the rule because,
as discussed in the proposed rule, possessors and traffickers of
controlled substances ``pose a direct threat to the public health and
safety interests of the United States.'' 84 FR at 69654; accord Ayala-
Chavez, 944 F.2d at 641 (``[T]he immigration laws clearly reflect
strong Congressional policy against lenient treatment of drug
offenders.'' (quoting Blackwood, 803 F.2d at 1167)). Also, commenters'
suggestions regarding treatment, support, and services for children who
have experienced trauma are outside the scope of this rulemaking.
Finally, the Departments note that, consistent with the INA's
approach to controlled substance offenses, for example in the
removability context under INA 237(a)(2)(B)(i) (8 U.S.C.
1227(a)(2)(B)(i)), the rule does not penalize a single offense of
marijuana possession for personal use of 30 grams or less. See 84 FR at
69654. The Departments have concluded that allowing this limited
exception to application of the new bar appropriately balances the
competing policy objectives of protecting the United States from the
harms associated with drug trafficking and possession, on the one hand,
and the goal of not imposing unduly harsh penalties on persons subject
to the new bars, on the other.
d. Problems With Existing Asylum System
Comment: Commenters opposed the NPRM because they alleged that the
current overall asylum system is too harsh. Specifically, commenters
stated that the current bars to asylum are too harsh and overly broad,
given that all serious crimes are already considered as part of the
discretionary analysis and that asylum seekers are already heavily
vetted and scrutinized. Accordingly, commenters stated that the asylum
restrictions should be narrowed rather than expanded.
Specifically, commenters asserted that the current ``harsh system''
places a high evidentiary burden on applicants to establish eligibility
and disregards the danger they may face if they are sent back to their
countries.\38\ Commenters claimed that conditions in Mexico, where many
asylum seekers are sent, are dangerous, and that asylum seekers are
killed or experience other harms. In addition, commenters referenced
numerous other barriers to asylum--the complex ``web'' of laws and
regulations that asylum seekers must navigate, sometimes from jail or
without counsel, and other recent policies such as the MPP, see DHS,
Policy Guidance for Implementation for the Migrant Protection Protocols
(Jan. 25, 2019), https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf, and the
``third-country transit bar,'' see Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019).
---------------------------------------------------------------------------
\38\ Commenters also mentioned numerous other alleged barriers
to asylum unrelated to the NPRM, including the required time between
an application's submission and the attached photo's taking,
English-only application forms, and additional concerns. The
Departments acknowledge the general concerns with the asylum system,
but because these concerns do not relate to particular provisions of
the NPRM, the Departments do not address them further.
---------------------------------------------------------------------------
Further, commenters asserted that the current criminal bars to
asylum eligibility are too broad, emphasizing, for example, that the
term ``aggravated felony,'' which is a ``particularly serious crime''
that renders the applicant ineligible for asylum, has come to encompass
``hundreds of offenses, many of them neither a felony nor aggravated,
including petty offenses and misdemeanors * * *. A single one of these
past offenses eliminates an individual's eligibility for asylum, with
no regard to the danger that person will face if sent back to their
country.''
Commenters also explained that immigration judges currently have
full discretion to deny asylum to any alien who is not categorically
barred from relief but who has been convicted of criminal conduct.
Accordingly, commenters asserted that the existing system is sufficient
to ensure that relief is denied to those who may be dangerous to a
community, while at the same time providing latitude for adjudicators
to consider unique challenges that asylum seekers face resulting from
the harm they have faced. In light of these facts, commenters opposed
adding more bars and encouraged the Departments to instead narrow the
bars.
Response: Commenters' concerns regarding the entire asylum system,
including the asserted complex ``web'' of asylum laws and regulations,
are outside the scope of this rulemaking. The rule adds categorical
bars to asylum
[[Page 67245]]
eligibility; clarifies the effect of criminal convictions and, in one
instance, criminal conduct, on asylum eligibility; and removes
automatic reconsideration of discretionary denials of asylum. See 84 FR
at 69640. The Departments do not otherwise propose to amend the asylum
system established by Congress and implemented by the Departments
through rulemaking and policy over the years.
The Departments note here, and the proposed rule acknowledged, in
part, see, e.g., 84 FR at 69645-46, that, although immigration judge
discretion, BIA review, and scrutiny of asylum applicants could achieve
results similar to some of the proposed provisions, the rule
streamlines the system to increase efficiency. By eliminating the
current system of case-by-case adjudications and application of the
categorical approach with respect to aggravated felonies, the
Departments anticipate that adjudication of asylum claims will be a
much quicker process. In addition, the Departments believe that, given
the clarified conditions and limitations on asylum eligibility, fewer
non-meritorious or frivolous asylum claims may be filed overall, with
the result that the Departments' adjudication resources would be
allocated, from the beginning, to claims that are more likely to have
merit. Overall, the Departments maintain that a rule-based approach to
accomplish that goal is preferable. See 84 FR at 69646.
The Departments reiterate that asylum is a discretionary benefit;
the Departments work in coordination to establish requirements, limits,
and conditions, which may include evidentiary burdens. See INA
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Contrary
to the commenters' assertions that the rule disregards the dangers
faced by aliens, the rule noted alternative forms of protection for
which aliens may apply, even if they are subject to an asylum bar. See
84 FR at 69642. Nevertheless, many commenters' concerns referencing
allegedly dangerous conditions in Mexico, the effects of the MPP, and
the third-country transit bar are also outside the scope of this
rulemaking.
The Departments disagree with commenters' assertions that the
asylum bars should be narrowed. Given efficiency interests, the
Departments posit that expanded categorical bars will streamline the
asylum system, with the result that asylum benefits may be granted more
quickly to eligible aliens.
e. Inefficiencies in Immigration Proceedings
Comment: Commenters opposed the rule because they alleged that
various provisions would result in inefficiencies and exacerbate an
already inefficient, backlogged, and under-staffed immigration system.
First, commenters stated that requiring adjudicators to make
``complex determinations regarding the nature and scope of a particular
conviction or, in the case of the domestic violence bar, conduct,''
would lead to inefficiencies. Many commenters stated that the rule
effectively requires adjudicators to ``engage in mini-trials into
issues already adjudicated by the criminal law system based on evidence
that may not have been properly tested for its veracity in the criminal
process,'' thereby decreasing efficiency. Further, commenters stated
that adjudicators will have to ``conduct a separate factual inquiry
into the basis for a criminal conviction or allegations of criminal
conduct to determine whether the individual is eligible for asylum,''
instead of relying on adjudications from the criminal legal system.
Other commenters stated that the rule is especially inefficient in
the case of family members' asylum eligibility. Commenters alleged
that, under the proposed rule, family members' claims will be
adjudicated separately and potentially before different adjudicators.
Given that family members' claims are oftentimes interrelated and
children are less able to sufficiently explain asylum claims,
commenters concluded that the rule, especially as it relates to family
claims, further increases inefficiencies in the system.
Commenters also stated that these ramifications directly contradict
one of the rule's stated justifications of increased efficiency and
alleged that the rule increased the time and expense necessary to
process asylum claims. One commenter alleged that this will decrease
the ability of asylum seekers to access healthcare, food, and housing.
That commenter also averred that asylum seekers will likely have to
request to reschedule interviews, which will introduce further delay,
because the rule's filing deadlines restrict applicants' ability to
provide supplementary evidence. Further, commenters alleged that the
Departments failed to provide information or research to explain how
the rule would increase efficiencies in the system.
Many commenters asserted that the rule will require a highly
nuanced, resource-intensive inquiry that will prolong asylum
proceedings and ``invariably lead to erroneous determinations'' or
disparate results, with the consequence that appeals will increase and
consume further Departmental resources.
Response: The Departments disagree with the commenters' assertions
regarding inefficiencies.
First, adjudicators currently conduct a factual inquiry similar to
the inquiry contemplated by the new bars in other immigration contexts.
See 84 FR at 69652 (providing, as examples, the removability context in
INA 237(a)(1)(E) (8 U.S.C. 1227(a)(1)(E)) and consideration of the
persecutor bar in INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i))).
Thus, adjudicators are adequately trained and equipped to conduct such
analyses.
Second, the Departments emphasize that this rule is just one tool
for increasing efficiencies in the immigration adjudications process
and for correcting what the Departments view as problematic rules
regarding asylum eligibility. This rule is not intended to correct all
inefficiencies or to be a complete panacea, and DOJ has implemented
numerous initiatives recently to address inefficiencies where
appropriate. See, e.g., EOIR, Policy Memorandum 20-07: Case Management
and Docketing Practices (Jan. 31, 2020), https://www.justice.gov/eoir/page/file/1242501/download (implementing efficient docketing
practices); EOIR, Policy Memorandum 19-11: ``No Dark Courtrooms'' (Mar.
31, 2019), https://www.justice.gov/eoir/file/1149286/download
(providing policies to reduce and minimize the impact of unused
courtrooms and docket times to address the caseload and backlog); EOIR,
Policy Memorandum 19-05: Guidance Regarding the Adjudication of Asylum
Applications Consistent with INA Sec. 208(d)(5)(A)(iii) (Nov. 19,
2018), https://www.justice.gov/eoir/page/file/1112581/download
(providing policy guidance to effectuate the statutory directive to
complete asylum adjudications within 180 days of filing, absent
extraordinary circumstances); see also DOJ, Memorandum for the
Executive Office for Immigration Review: Renewing Our Commitment to the
Timely and Efficient Adjudication of Immigration Cases to Serve the
National Interest (Dec. 5, 2017), https://www.justice.gov/opa/press-release/file/1015996/download (reiterating EOIR's commitment to
efficient adjudication).
Although the Departments agree that the current system for
adjudicating asylum applications frequently fails to meet the statutory
deadline of completing such cases within 180 days
[[Page 67246]]
absent exceptional circumstances, INA 208(d)(5)(A)(iii) (8 U.S.C.
1158(d)(5)(A)(iii)) the Departments believe this rulemaking will
improve efficiency. The Departments direct commenters to the proposed
rule at 84 FR at 69645-46 for an extensive explanation of
inefficiencies addressed through this rulemaking, which provides
adequate ``information and research'' describing how the rule will
increase efficiencies. Notably, courts have often recognized that rule-
based approaches promote more efficient administration than wholly
discretionary, case-by-case determinations. See Lopez v. Davis, 531
U.S. 230, 244 (2001) (observing that ``a single rulemaking proceeding''
may allow an agency to more ``fairly and efficiently'' address an issue
than would ``case-by-case decisionmaking'' (quotation marks omitted));
Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010) (``An
agency may exercise discretion categorically, by regulation, and is not
limited to making discretionary decisions one case at a time under
open-ended standards.''); cf. Baylor Cty. Hosp. Dist. v. Price, 850
F.3d 257, 263 (5th Cir. 2017) (``DHHS opted for a bright-line rule
after considering its lack of agency resources to make case-by-case
judgments'' because ``the statutory text had to be articulated properly
and in an administratively efficient way.''). The Departments
acknowledge the backlog in asylum applications, see EOIR, Adjudication
Statistics: Total Asylum Applications (July 14, 2020), https://www.justice.gov/eoir/page/file/1106366/download, and the Departments,
as a matter of policy, choose to address this backlog and resulting
inefficiencies in part through this rulemaking.
The backlogged asylum system presents challenges; however, the
Departments disagree with commenters regarding how best to address the
backlog. The Departments disagree that the rule will prolong
proceedings and lead to erroneous determinations, thus allegedly
prompting more appeals. On the contrary, the Departments have concluded
that the rule will increase efficiencies by eliminating the current
system of case-by-case adjudications and application of the categorical
approach with respect to aggravated felonies as they apply to asylum
adjudications. See 84 FR at 69646-47. The Departments have determined
that this rule-based approach is preferable, partly because, given the
specific context of asylum eligibility, it will result in consistent
treatment of asylum seekers with respect to criminal convictions. See
id.
Finally, concerns regarding access to healthcare, food, and
housing, are outside the scope of this rulemaking.
f. Disparate Impact on Certain Persons
Comment: Many commenters opposed the rule because they claimed it
will harm or disparately affect asylum applicants whom commenters deem
the most vulnerable people in society. Commenters explained that,
although asylum seekers and refugees are generally vulnerable, the rule
further implicates other vulnerable groups, such as LGBTQ individuals;
victims of trafficking; communities of color, especially youth, and
other minority ethnic groups; individuals who have experienced trauma,
coercion, abuse, or assault; people with mental illness, especially
those lacking adequate mental health services, such as children in ORR
custody; people struggling with addictions and related convictions,
regardless of whether they have sought treatment; parents who cross the
border with children to seek safety; individuals convicted of document
fraud who unknowingly use fraudulent documents or unscrupulous services
to procure immigration documents; victims of domestic or intimate
violence; people from Central America and the ``Global South''; and
low-income people. Commenters were concerned that the rule
categorically bars these populations without consideration of
mitigating factors, thereby potentially resulting in the return of such
people to countries and communities where they initially experienced
discrimination, bias, trauma, and violence. In a related vein,
commenters were concerned that these populations are more prone to be
convicted of minor offenses that will, under the rule, preclude them
from asylum relief. For example, one commenter speculated that a
trafficking victim who leaves a child alone at home while on a brief
trip to a store could be convicted of ``endangering the welfare of a
child'' and then barred from asylum.
Commenters especially emphasized concerns regarding the effect of
the rule on two groups: LGBTQ individuals, especially transgender
women; and trafficking victims.\39\ Regarding LGBTQ individuals,
multiple commenters asserted that the rule constitutes a ``unique
threat'' because those individuals have likely faced:
---------------------------------------------------------------------------
\39\ Commenters also expressed concerns for communities of
color. These concerns, however, are addressed in section II.C.3.d
because commenters' concerns on this point were primarily connected
to concerns regarding the gang-related offenses included in the
rule.
a high degree of violence and disenfranchisement from economic and
political life in their home countries. * * * Members of these
communities also experience isolation from their kinship and
national networks following their migration. This isolation,
compounded by the continuing discrimination towards the LGBTQ
population at large, leave[s] many in the LGBTQ immigrant community
vulnerable to trafficking, domestic violence, and substance abuse,
---------------------------------------------------------------------------
in addition to discriminatory policing practices.
One commenter explained that some LGBTQ individuals are charged
with a variety of crimes in connection with their private, consensual
conduct because of differences in discriminatory laws regarding this
population around the world.
For trafficking victims, commenters explained that the rule bars
them from asylum when they are only involuntarily part of a trafficking
scheme and will likely face subsequent retaliation and other harms from
their traffickers. Commenters were especially concerned that the rule
denies asylum benefits to people who desperately need and will greatly
benefit from them. Further, commenters asserted that alternative forms
of relief are oftentimes insufficient for trafficking victims. For
example, commenters explained that trafficking victims who have been
removed are not eligible for T nonimmigrant status. Similarly,
commenters explained that trafficking victims who are forced by their
traffickers to commit other crimes may then be ineligible for other
forms of relief under certain crime bars. Commenters also explained
that trafficking victims typically receive intervention and other
support services only after coming into contact with law enforcement;
thus, this rule would preclude them from such resources.
Commenters explained that, not only are these people more prone to
experiencing harms if they are barred from asylum, but also these
people are more prone to initially experience harms that subsequently
result in their involvement in the criminal justice system, which
would, under this rule, bar them from asylum. For these reasons,
commenters opposed the rule.
Response: To the extent that commenters ask the Departments to
establish unique protections for these referenced groups, such
protections are outside the scope of this particular rulemaking.
Congress has chosen to provide special protections for certain groups,
such as unaccompanied alien children, and Congress could choose to
[[Page 67247]]
similarly extend protections to LGBTQ persons or other groups. Without
such congressional action, however, the Departments are merely
implementing the statutory framework as it currently exists. Further,
to the extent that the commenters posit that the noted groups are more
prone to engage in criminal conduct implicated by the rule--e.g.,
fraud, DUI, human smuggling, gang activity, drug-related crimes--the
Departments have no evidence that such groups are more likely to commit
such crimes than any other groups of asylum applicants, and commenters
did not provide evidence that would suggest otherwise. Thus, the
Departments reject the assertion that the rule would have a disparate
impact on discrete groups, absent evidence such groups are more likely
to engage in criminal behavior addressed by the rule.
The rule includes several provisions that act, in part, to preclude
returning vulnerable persons, including LGBTQ individuals and
trafficking victims, to countries where they may have experienced or
fear, as referenced by the commenters, discrimination, bias, trauma,
and violence. As an initial matter, regardless of asylum eligibility,
vulnerable persons may be eligible for statutory withholding of removal
and protection under the CAT regulations. See 84 FR at 69642. Next, the
rule includes an exception to the bar based on domestic assault or
battery, stalking, or child abuse. See 8 CFR 208.13(c)(6)(v)(C),
(vii)(F), 1208.13(c)(6)(v)(C), (vii)(F). The exception mirrors the
provisions in the statute at INA 237(a)(7)(A) (8 U.S.C. 1227(a)(7)(A))
(removability context), but has one significant difference. In the
removability context, applicants claiming this exception must satisfy
the statutory criteria and be granted a discretionary waiver. Under the
rule, however, applicants claiming the exception must only satisfy the
criteria; no waiver is required. See 84 FR at 69653. This exception
exists so that proper considerations can be taken of the vulnerability
of domestic violence victims. The Departments believe this exception
strikes the proper balance between providing protections for domestic
violence victims while advancing the goals of reducing the incidence of
domestic violence and protecting the United States from the sorts of
conduct that would subject offenders to the new bars.
Commenters' concerns regarding vulnerable individuals' increased
likelihood of convictions for minor offenses for certain vulnerable
groups relate to the larger criminal justice system and accordingly
fall outside the scope of this rulemaking. See section II.C.6.k for
further discussion. Moreover, as noted above, the Departments have no
evidence--and commenters provided none--that the groups identified by
commenters are more prone to engage in criminal conduct implicated by
the rule that would increase the likelihood of a conviction for, e.g.,
fraud, DUI, human smuggling, gang activity, or drug-related crimes.
Next, this rule expands asylum ineligibility based on offenses
committed in the United States, not abroad. See 84 FR at 69647 n.5.
Thus, the rule does not expand asylum ineligibility for trafficking
victims forced to commit crimes abroad or LGBTQ individuals whose
private, consensual acts are criminalized abroad. Indeed, case law has
long recognized that some criminal prosecutions abroad, if pretextual,
can, for example, form the basis of a protection claim. See, e.g.,
Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (noting ``two
exceptions to the general rule that prosecution does not amount to
persecution--disproportionately severe punishment and pretextual
prosecution''); Matter of S-P-, 21 I&N Dec. 486, 492 (BIA 1996) (noting
that ``prosecution for an offense may be a pretext for punishing an
individual'' on account of a protected ground). The rule does not alter
such case law.
g. Adjudicator Discretion
Comment: Many commenters opposed the rule out of concern that it
strips adjudicators of discretion. First, commenters stated that it is
crucial that adjudicators consider countervailing factors ``to
determine whether the circumstances merit such a harsh penalty.''
Another commenter explained that ``[d]iscretion allows an adjudicator
to consider a person's entire experience, including those factors that
led to criminal behavior as well as the steps towards rehabilitation
that individuals have taken.'' Commenters claimed that effective use of
discretion is crucial in these circumstances: ``The existing framework
for determining if an offense falls within the particularly serious
crime bar already provides the latitude for asylum adjudicators to deny
relief to anyone found to pose a danger to the community.'' Thus,
commenters alleged that the rule's removal of that discretion is
punitive and unnecessary. One commenter stated that the purpose of the
NPRM seems to be to remove all discretion from adjudicators to consider
each case on a case-by-case basis. Another commenter underscored the
importance of adjudicators retaining discretion to make individualized
determinations because Congress established asylum as a discretionary
form of relief.
One commenter alleged that the rule diminishes due process
protections, stating that, ``by preventing the use of discretion in
such cases[,] the proposed rules have a chilling effect on due process.
Ensuring adjudicators have discretion to grant asylum under such
circumstances allows asylum seekers to have a fair day in court and
guards against further injustice resulting from errors that might have
occurred in the criminal legal system.''
Commenters also alleged that the proposed rule incorrectly raises
the burden of proof to establish that a favorable grant of discretion
is warranted so that it is equivalent to the burden required to
establish a well-founded fear of persecution. These commenters averred
that this is problematic in the face of contrary case law that requires
a more cautious, restrained view of the Attorney General's and the
Secretary's discretion and that cautions against permitting the
Departments unchecked power and unrestrained discretion in making
asylum determinations. Commenters first cited Matter of Pula, 19 I&N
Dec. at 474, arguing that it encouraged a restrained view of discretion
because the Board asserted that ``the danger of persecution should
generally outweigh all but the most egregious of adverse factors.''
Commenters averred that the Supreme Court cautioned against unlimited
discretion in Moncrieffe, 569 U.S. at 200-01, by holding that the
government must follow the categorical approach. Similarly, commenters
cited Delgado, 648 F.3d at 1097, to support this proposition because
the Ninth Circuit ``first assert[ed] its jurisdiction to review the
Attorney General's discretionary authority'' and overruled an earlier
decision that the jurisdiction-stripping provision at 8 U.S.C. 1252
barred the court's judicial review.
On the other hand, in the context of convictions or conduct related
to domestic violence, battery, or extreme cruelty, commenters also
opposed the amount of discretion afforded to adjudicators because the
rule allegedly provides no clear guidance for the adjudicator's
inquiry, analysis, and resulting determination. For example, commenters
asserted that it is unclear what constitutes ``reliable evidence''
under the rule. Commenters were concerned that this would result in
inconsistent decisions or diminished due process. Further, commenters
were also concerned because determinations under the rule would be
discretionary
[[Page 67248]]
and therefore non-appealable in most cases.
Response: Congress has authorized the Attorney General and the
Secretary to, by regulation, limit and condition asylum eligibility
consistent with the statute. INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C.
1158(b)(2)(C), (d)(5)(B)). Through this rule, the Departments exercise
such authority by establishing categorical bars to asylum that
constitute such limits and conditions. The Departments disagree that
adjudicators must be afforded discretion to consider mitigating factors
in determining asylum eligibility in all circumstances. Given the
challenges faced by the agencies and the operative functioning of
current categorical bars, see INA 208(b)(2)(A) (8 U.S.C.
1158(b)(2)(A)), the Departments add the new categorical bars, in part,
to improve the efficient processing of asylum claims. The regulatory
changes are not punitive or intended to revoke all discretion from
adjudicators, as commenters alleged; rather, the Departments promulgate
this rule to facilitate and streamline processing of asylum claims. See
e.g., 84 FR at 69646-47, 69657.
The rule does not diminish due process. As discussed above, the
discretionary benefit of asylum is not a liberty or property interest
subject to due process protections. See Yuen Jin, 538 F.3d at 156-57;
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50). In other
words, ``[t]here is no constitutional right to asylum per se.'' Mudric,
469 F.3d at 98. The Departments disagree that affording discretion to
adjudicators in lieu of promulgating the additional bars is a
preferable way to process asylum applications. Moreover, nothing in
this rule prevents individuals from appealing the immigration judge's
determination. See 8 CFR 1003.38 (appeals with the BIA). Further, as
explained in section II.C.6.k, resolving errors in the criminal justice
system is beyond the scope of this rulemaking.
The Departments reiterate their authority to limit and condition
asylum eligibility consistent with the statute. See INA 208(b)(2)(C),
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Accordingly, the
Departments may promulgate bars that govern determinations regarding
asylum eligibility. In light of this authority, the Departments also
disagree with commenters that the rule provides adjudicators with
insufficient guidance for the sound exercise of their judgment in
determining eligibility for asylum. For example, the proposed rule
provides clarity surrounding determinations whether a conviction is a
felony by applying the relevant jurisdiction's definition; also, it
provides detailed guidance on vacated or expunged convictions, and
modified convictions and sentences. 84 FR at 69646, 69654-55.
Immigration judges and asylum officers currently exercise discretion to
determine whether an asylum seeker merits relief for a wide range of
reasons, many of which are not similarly set out or defined in the Act
or by regulation. See, e.g., Matter of A-B-, 27 I&N Dec. 316 at 345
n.12 (outlining factors for consideration in discretionary asylum
determinations). The Departments accordingly do not believe that the
new bars require immigration judges or asylum officers to exercise
significantly more discretion than those judges or officers already do.
Further, the Departments note that providing more exacting
guidance, as some commenters suggested, would impede the very nature of
legal discretion, as demonstrated by its definition: ``[f]reedom in the
exercise of judgment,'' or ``the power of free decision-making.''
Black's Law Dictionary (11th ed. 2019); see also ``Discretion,''
Merriam-Webster, https://www.merriam-webster.com/dictionary/discretion
(last updated Feb. 15, 2020) (defining ``discretion'' as the ``power of
free decision or latitude of choice within certain legal bounds'').
Doing so would thus aggravate the problems that some commenters
perceived in the rule's alleged lack of sufficient flexibility.
Next, nothing in the final rule changes the standard of proof as
regards an individual's ability to demonstrate that he or she warrants
a positive grant of discretion. As an initial matter, citing a standard
of proof for discretion is a misnomer. Rather, the determination of
whether an alien warrants a discretionary grant of asylum is an
analysis that requires reviewing the circumstances of the case. In
determining whether the alien warrants a discretionary grant of asylum,
the immigration judge considers a number of factors and considerations.
See Matter of Pula, 19 I&N Dec. at 473-74 (outlining how adjudicators
should weigh discretionary factors in applications for asylum). By
contrast, the final rule sets forth additional limitations on
eligibility for asylum, which are separate from the discretionary
determination. As a result, the final rule does not create a standard
of proof for establishing that an alien warrants a discretionary grant
of asylum.
Similarly, the Departments disagree with commenters' assertions
that the final rule violates Supreme Court and court of appeals
precedent regarding the amount of discretion granted to the Attorney
General and the Secretary. As explained, Congress, in IIRIRA, vested
the Attorney General with broad authority to establish conditions or
limitations on asylum. See 110 Stat. at 3009-692. Congress also vested
the Attorney General with the authority to establish by regulation
``any other conditions or limitations on the consideration of an
application for asylum,'' so long as those limitations are ``not
inconsistent with this chapter.'' INA 208(d)(5)(B) (8 U.S.C.
1158(d)(5)(B)). This broad authority is not undercut by the cases cited
by commenters. Neither Moncrieffe nor Delgado presumes to limit the
Attorney General's discretion to place limits on asylum. Rather,
Moncrieffe addressed whether a conviction for possession of a small
amount of marijuana with intent to distribute qualified as an
aggravated felony. 569 U.S. at 206. Similarly, the Delgado court held
that it had authority to review certain discretionary determinations
made by the Attorney General when not explicitly identified in the INA.
648 F.3d at 1100. However, this inquiry was based on statutory
interpretation to determine whether the court had jurisdiction to
review a BIA decision. Apart from disagreeing with the Department's
legal arguments on appeal, neither of these two decisions purported,
even in dicta, to place additional limitations on the Attorney
General's ability to consider whether to grant asylum as a matter of
discretion.
h. Issues With Representation
Comment: Commenters opposed the NPRM because they alleged that it
made the asylum system more arduous for asylum seekers, especially
children, to navigate alone. One commenter claimed that 86 percent of
detainees lack access to counsel. Overall, commenters were concerned
that the rule's changes disadvantage asylum seekers by making it more
difficult for them to proceed without representation and for
organizations, in turn, to provide representation and assistance to
aliens.
Commenters pointed out that asylum seekers lack the benefit of
appointed counsel, which is especially significant for pro se aliens
affected by the rule, particularly in regard to gathering evidence and
developing responses to refute the ``extremely broad grounds'' for the
denial of asylum.
Commenters also alleged that it will be more difficult for
organizations to represent and assist aliens in accordance with the
rule's provisions. Commenters stated that backlogs at USCIS are
detrimental to organizations and the aliens they represent because
[[Page 67249]]
aliens may wait years for a decision on their applications, while
organizations have limited resources to assist immigrants and must seek
to prioritize spending for emergency situations.
Commenters also stated that the system is already complicated;
further complicating it with additional barriers will require much
time, funding, and effort by immigration advocates. Finally, commenters
stated that an asserted ``lack of predictability'' in application of
the rule would ``create a substantial burden on immigration legal
services providers, who [would] be unable to advise their clients as to
their asylum eligibility, a long-term and stable form of protection
from persecution.''
Response: The commenters' particular concerns regarding
representation in immigration proceedings or during asylum
adjudications are outside the scope of this rulemaking. The rule does
not involve securing or facilitating representation, and Congress has
already directed that aliens have a right to counsel in removal
proceedings but at no expense to the government. INA 292 (8 U.S.C.
1362). Moreover, 87 percent of asylum applicants in pending asylum
cases have representation, and there is nothing in the rule that would
cause a reduction in that representation rate. See EOIR, Adjudication
Statistics: Representation Rate (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1062991/download.
In addition, the Departments continue to maintain resources
designed to assist aliens in proceedings find representation or
otherwise help themselves in their proceedings. See EOIR, Find Legal
Representation, https://www.justice.gov/eoir/find-legal-representation
(last updated Nov. 29, 2016). Further, the Office of Legal Access
Programs within EOIR works to increase access to information and raise
the level of representation for individuals in immigration proceedings.
See EOIR, Office of Legal Access Programs, https://www.justice.gov/eoir/office-of-legal-access-programs (last updated Feb. 19, 2020).
In regard to commenters' concerns regarding the backlog at USCIS,
the rule facilitates a more streamlined approach by eliminating
inefficiencies. See, e.g., 84 FR at 69647, 69656-57. For example, the
rule's established definition for ``felony'' will create greater
uniformity by accounting for ``possible variations in how different
jurisdictions may label the same offense'' and avoid anomalies in the
asylum context ``that arise from the definition of `aggravated
felonies.''' Id. at 69647. Significantly, that definition eliminates
the need for adjudicators and courts alike to engage in the categorical
approach for aggravated felonies. See id. These improvements to the
asylum system will increase predictability, therefore rendering
representation less complicated and potentially requiring less funding
by immigration advocates.
The Departments emphasize that the rule does not create an entirely
new system. As with any other change to the regulations, the
Departments anticipate that immigration advocates and organizations
will adjust and adapt their strategies to continue to provide effective
representation for their selected clients.
i. Against American Ideals
Comment: Commenters opposed the rule because they alleged that it
conflicts with American ideals. Commenters remarked that the rule
conflicts with the United States' tradition and moral obligation of
providing a ``haven for persons fleeing oppression'' and a ``beacon of
hope'' for vulnerable people, and that it violates principles that
people should have freedom and equal rights under the law ``regardless
of skin color or birthplace.'' Many commenters characterized these
concerns as humanitarian, religious, and American ideals of showing
compassion, fairness, and respect for human rights. Another commenter
claimed that the rule ``eviscerated the spirit and overall purpose of
the U.S. asylum system by categorically refusing protection to large
groups of vulnerable people who are neither a danger to the public nor
a threat to U.S. national security interests, and who have no other
safe and reasonable option for protection.''
Other commenters expressed opposition by claiming that the rule
would diminish the United States' role as a world leader, hurt the
country's international reputation, and undermine foreign policy
interests abroad. One commenter stated that the rule would diminish the
``country's historical role as a defender of human rights.''
Response: The rule does not conflict with American traditions or
moral obligations related to caring for vulnerable people. On the
contrary, the rule streamlines the asylum system to improve the
consistency and predictability of the adjudication of claims, thereby
enabling applicants who qualify for asylum eligibility to swiftly
access the benefits that follow a grant of asylum. Those benefits
include, among many, preclusion from removal, a path to lawful
permanent resident status and citizenship, work authorization, the
possibility of derivative lawful status for certain family members, and
access to certain financial assistance from the Federal government. See
R-S-C, 869 F.3d at 1180; INA 208(c)(1)(A), (C) (8 U.S.C. 1158(c)(1)(A),
(C)); INA 208(c)(1)(B), (d)(2) (8 U.S.C. 1158(c)(1)(B), (d)(2)); see
also 84 FR at 69641. The availability of these benefits demonstrates
American ideals of compassion realized through the asylum system.
Aliens with certain criminal convictions demonstrate a disregard
for the societal values of the United States and may constitute a
danger to the community or threaten national security. The Departments
have concluded that limiting asylum eligibility for these aliens
furthers American ideals of the rule of law and a commitment to public
safety. Although such aliens are not eligible for asylum under the
rule, they may still be eligible for withholding of removal under the
Act (INA 241(b)(3) (8 U.S.C. 1231(b)(3)); 8 CFR 1208.16(b)), or
protection under the CAT regulations (8 CFR 1208.16(c)). These forms of
protection limit removal to a country where the alien is more likely
than not to be persecuted based on protected grounds or tortured,
thereby affording protection to aliens, even if they are ineligible for
asylum.
The Departments do not agree that the rule diminishes the United
States' international reputation for caring for the less fortunate. On
the contrary, the Departments believe the rule strengthens the United
States' ability to care for those who truly deserve the discretionary
benefit of asylum and may take full advantage of the numerous benefits
that follow.
j. Bad Motives
Comment: Commenters opposed the NPRM because they alleged that the
Departments published it with racist motives. Commenters stated that
the rule was published ``out of animus to asylum seekers and [with] a
desire to undermine the asylum system through an end-run around
Congress'' because the rule would ``necessarily ensnare asylum seekers
of color who have experienced racial profiling and a criminal legal
system fraught with structural challenges and incentives to plead
guilty to some crimes, particularly misdemeanors.'' One commenter
specifically stated the rule was based upon a ``dark legacy'' of bias
against Latin American countries and violated the Equal Protection
Clause of the Fourteenth Amendment.
One commenter stated that ``the [A]dministration has targeted low-
income, immigrant communities of color to further their white
supremacist
[[Page 67250]]
agenda of maintaining a white majority in the United States.'' Other
commenters alleged that DHS and ICE have relied on racist policing
techniques to identify gang activity, which rarely result in criminal
convictions.
Commenters also opposed the rule because they alleged that it is an
attempt to ``drastically limit asylum eligibility,'' ``exclude refugees
from stability and security,'' and make the United States more
``hostile'' towards immigrants. In other words, commenters alleged that
the rule ``represent[ed] a thinly veiled attempt to prevent otherwise
eligible asylum seekers from lawfully seeking refuge in the United
States.'' Commenters referenced public documents allegedly revealing
the Administration's efforts to utilize smuggling prosecutions against
parents and caregivers as part of its overall strategy to deter
families from seeking asylum. Commenters were concerned that the rule
threatens to ``magnify the harm caused by these reckless policies by
further compromising the ability of those seeking safety on the
southern border to access the asylum system.''
Response: The rule is not racially motivated, nor did racial animus
or a ``legacy of bias'' play a role in the rule. Rather, the rule
categorically precludes from asylum eligibility certain aliens based on
the aliens' various criminal convictions and, in one limited instance,
criminal conduct, because the Departments believe that the current
case-by-case adjudicatory approach yields inconsistent results that are
both ineffective to protect communities from danger and inefficient in
regard to overall case processing. See 84 FR at 69640.
To the extent that the rule disproportionately affects any group
referenced by the commenters, the rule was not intentionally drafted to
discriminate against any group. The provisions of the rule apply
equally to all asylum applicants without regard to any applicant's
ethnic or national background, or any other personal characteristics
separate and apart from the criminal or conduct history laid out in the
rule. Accordingly, the rule does not violate the Equal Protection
Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S.
229, 242 (1976) (``[W]e have not held that a law, neutral on its face
and serving ends otherwise within the power of government to pursue, is
invalid under the Equal Protection Clause simply because it may affect
a greater proportion of one race than of another. Disproportionate
impact is not irrelevant, but it is not the sole touchstone of an
invidious racial discrimination forbidden by the Constitution. Standing
alone, it does not trigger the rule that racial classifications are to
be subjected to the strictest scrutiny and are justifiable only by the
weightiest of considerations.'' (citation omitted)); cf. United States
v. Smith, 818 F.2d 687, 691 (9th Cir. 1987) (``We begin our review of
this challenge by holding that persons convicted of crimes are not a
suspect class.'').
As explained in the proposed rule, Congress expressly authorized
the Attorney General and the Secretary to establish conditions or
limitations for the consideration of asylum applications under INA
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)) that are
not inconsistent with the statute. See 84 FR at 69643. The Departments
promulgate this final rule in accordance with those statutory sections,
and in doing so, have promulgated a rule that is equally applicable to
all races. The Departments strongly disavow any allegation of white
supremacy.
The Departments reiterate that the rule does not encourage or
facilitate hostility towards immigrants. Instead, the rule
categorically precludes from asylum eligibility certain aliens based on
criminal convictions, and, in one limited instance, criminal conduct,
because the Departments believe the current case-by-case adjudicatory
approach yields inconsistent results that are both ineffective to
protect the American public from danger and inefficient in regard to
overall case processing. The rule retains the current general statutory
asylum system, see 84 FR at 69640, with the result that applicants for
asylum must prove that they are (1) statutorily eligible for asylum,
and (2) merit a favorable exercise of discretion. INA 208(b)(1)(A),
240(c)(4)(A) (8 U.S.C. 1158(b)(1)(A) 1229a(c)(4)(A)); see also Matter
of A-B-, 27 I&N Dec. at 345 n.12. That framework continues to be
equally applicable to persons of all races.
The rule does not affect regulatory provisions regarding refugee
processing under 8 CFR parts 207, 209, 1207, and 1209, and it does not
categorically exclude refugees from the United States or facilitate
hostility towards immigrants. The Departments disavow allegations that
the government used smuggling prosecutions against parents and
caregivers specifically to deter families from seeking asylum. Rather,
the Departments anticipate that the rule will better facilitate
efficient processing of asylum applications by introducing a more
streamlined approach, thus helping families who qualify for asylum and
demonstrate their applications merit a favorable decision.
k. Problems With the Criminal Justice System
Comment: Commenters opposed the proposed rule because they alleged
that it implicates a criminal justice system that suffers from
structural challenges such as racial profiling, unjust outcomes,
barriers to equal justice, and incentives to plead guilty, especially
in the context of misdemeanors.
Related to commenters' concerns regarding racism in the NPRM,\40\
commenters explained their concern that the NPRM imports racial
disparities prevalent in the criminal justice system into the
immigration system, stating, ``[a]sylum seekers of color, like all
communities of color in the United States, are already
disproportionately targeted and punished by the criminal justice
system.'' Particularly, commenters stated that both undocumented and
documented non-white immigrants are arrested, convicted of drug crimes,
given longer sentences, and deported more frequently than their white
counterparts. Further, commenters stated that LGBTQ aliens are more
prone to experiencing violence from police.
---------------------------------------------------------------------------
\40\ See section II.C.6.j for further discussion.
---------------------------------------------------------------------------
One commenter opposed the NPRM, stating that it would exacerbate
problems in our criminal justice system, such as increased
incarceration, deportations, and racial profiling, which would, in
turn, exacerbate health concerns for individuals and communities.
Response: The final rule amends the Departments' respective
regulations governing bars to asylum eligibility. The rule clarifies
the effect of criminal convictions and, in one instance, criminal
conduct, in the asylum context and removes regulations governing
automatic reconsideration of discretionary denials of asylum
applications. See 84 FR at 69640. Accordingly, commenters' concerns
regarding structural challenges to the criminal justice system are
outside the scope of this rulemaking. The rule does not seek or intend
to address actual or alleged injustices of the criminal justice system
as a whole, as referenced by the commenters, including racial
profiling, disparities based on race and sexual orientation, unjust
outcomes, barriers to equal justice, incentives to plead guilty, and
health concerns following alleged increases in incarceration,
deportations, and racial profiling.
[[Page 67251]]
l. Automatic Review of Discretionary Denials
Comment: Many commenters expressed strong opposition to the rule
because it eliminates automatic review of discretionary denials.
Commenters were concerned that language barriers and lack of financial
resources may prevent applicants with meritorious claims from
adequately presenting their cases. According to commenters,
``[m]aintaining reconsiderations of discretionary denials of asylum is
therefore absolutely critical to ensuring that immigrant survivors who
are eligible for asylum have another opportunity to defend and prove
their right to obtain asylum protections.''
Response: The Departments disagree that reconsideration of
discretionary denials of asylum is necessary and find that commenters'
concerns regarding removal of these provisions are unwarranted. First,
the current regulations providing for automatic reconsideration of
discretionary denials at 8 CFR 208.16(e) and 1208.16(e) are
inefficient, unclear, and unnecessary. See 84 FR at 69656. Federal
courts have expressed similar sentiment as they approach related
litigation. See Shantu v. Lynch, 654 F. App'x 608, 613-14 (4th Cir.
2016) (discussing unresolved anomalies of the regulations regarding
reconsideration of discretionary denials); see also 84 FR at 69656-57.
Further, there are currently multiple avenues through which an
asylum applicant may challenge a discretionary denial, with the result
that removing the regulations providing for reconsideration (8 CFR
208.16(e) and 1208.16(e)) does not effectively render asylum
eligibility determinations final. See 84 FR at 69657. First, under 8
CFR 1003.23(b)(1), an immigration judge may reconsider a decision upon
his or her own motion.\41\ Second, also under 8 CFR 1003.23(b)(1), an
alien may file a motion to reconsider with the immigration judge.
Third, under 8 CFR 1003.38, an alien may file an appeal with the BIA.
The Departments have concluded that these alternatives sufficiently
preserve the alien's ability to obtain review of the immigration
judge's discretionary asylum decision, while removing the confusing,
inefficient, and unnecessary automatic review provisions at 8 CFR
208.16(e) and 1208.16(e).
---------------------------------------------------------------------------
\41\ On August 26, 2020, the Department of Justice proposed
restricting the ability of an immigration judge to reconsider a
decision upon his or her own motion. Appellate Procedures and
Decisional Finality in Immigration Proceedings; Administrative
Closure, 85 FR 52491, 52504-06 (Aug. 26, 2020). That rule has not
yet been finalized, but even if the proposal is adopted in the final
rule, asylum applicants would still remain able to file a motion to
reconsider or an appeal in order to challenge an immigration judge's
discretionary denial in these circumstances.
---------------------------------------------------------------------------
7. Recommendations
Comment: Commenters provided numerous recommendations to the
Departments.
First, several commenters suggested that the Departments provide
annual bias training to all immigration judges and prosecutors.
Next, two commenters recommended that the sentencing guidelines as
provided in the Washington Adult Sentencing Guidelines Manual be
incorporated into the NPRM to provide clarity and guidance to
immigration judges.
Another commenter asserted that international human rights law
obligations required the Departments to
(1) put in place and allocate resources to the identification
and assessment of protection needs; and (2) establish mechanisms for
entry and stay of migrants who are considered to have protection
needs prohibiting their return under international human rights law,
including non-refoulement, as well as the rights to health, family
life, best interests of the child, and torture rehabilitation.
A commenter suggested the Departments should incorporate recent
innovative criminal justice reforms. For example, the commenter pointed
to special drug trafficking courts that ``recognize the need for
discretion in the determination of criminal culpability'' and suggested
that the Departments should create specialized asylum eligibility
courts.
Another commenter emphasized the effects of climate change,
claiming that the United States should be ``creating new categories of
asylum given the predictions on climate change migrants and the latest
UN human rights ruling declaring governments cannot deport people back
to countries if their lives are in danger due to climate change.''
One commenter recommended that the Departments continue to hire
more immigration judges and asylum officers and to retain discretion
with immigration adjudicators to make determinations on a case-by-case
basis rather than expand the categorical bars.
Some commenters emphasized the general need for comprehensive,
compassionate immigration reform. One commenter specifically urged the
Departments to support the New Way Forward Act, which, according to the
commenter, ``rolls back harmful immigration laws [because] it proposes
immigration reform measures that dismantle abuses of our system and our
asylum seeking community.''
Some commenters urged the Departments to take a more ``welcoming''
approach, citing the positive effects of diversity and economic
advantages.
Another commenter, despite opposing the NPRM, provided several
recommendations regarding the domestic violence crime bar and primary
perpetrator exception should the Departments publish the rule as final.
First, the commenter recommended that all immigration adjudicators
should receive specialized training developed with input from
stakeholders regarding domestic violence and the unique vulnerabilities
faced by immigrants. Second, the commenter recommended that an
automatic supervisory review should follow any determination that an
applicant does not meet an exception to an asylum bar. Third, the
commenter recommended that adjudicators should be required to provide
written explanations of (1) the factual findings, weighed against the
evidence, if a determination is made that an applicant does not meet an
exception to the asylum bar and (2) their initial decisions to apply
the bar, including what ```serious reasons' existed for believing that
the applicant engaged in acts of domestic violence or extreme
cruelty.'' Fourth, when applicants do not meet the exception, the
commenter recommended that adjudicators identify what evidence, if any,
was provided by the alleged primary perpetrator, how it was weighed,
and what the adjudicator did to determine whether it was false or
fabricated. Fifth, the commenter requested that agencies regularly
engage with stakeholders to assess the impact of the bar and the
exception on survivors.
Several commenters urged the Departments to dedicate their efforts
to ensuring that individuals fleeing violence would be granted full
asylum protections. One commenter suggested that the bars to asylum be
narrowed by eliminating the bar related to convictions in other
countries.
Some commenters suggested that families, especially children, be
allowed to apply for asylum together, rather than require each person
to file a separate application.
Response: The Departments note the commenters' recommendations.
Some commenters' suggestions involved issues or topics outside the
scope of the rule, such as the suggestions that immigration judges
should be provided certain types of training or to allow for additional
flexibilities for family-based versus individual asylum applications.
The
[[Page 67252]]
Departments may consider these recommendations in the event of
additional rulemakings, but do not take any further action in response
to these out-of-scope suggestions at this point.
Other commenters' suggestions involved topics outside the authority
of the Departments, such as suggestions that there should be new
asylum-related protections due to concerns surrounding climate change
or that legislative changes to the immigration laws should be enacted.
If Congress enacts these or other changes to the immigration laws, the
Departments' regulations will reflect such changes in future rules.
However, this rule is designed to implement the immigration laws
currently in force.
Regarding the remaining suggestions related to the provisions of
this rule, the Departments decline to adopt the recommendations or make
changes to the proposed rule except as set out below in section III.
Overall, the Departments find that the commenters' recommendations
would frustrate the rule's purpose by slowing and prolonging the
adjudicatory process, thereby undermining the goal of more efficiently
processing asylum claims. Further, the Departments have determined, as
discussed above, that the included offenses are significant offenses
that warrant rendering aliens described by the rule ineligible for
asylum.
For example, the Departments decline to adopt one commenter's
requests to automatically require supervisory review of an asylum
officer's decision to apply a bar, or to require the asylum officer or
immigration judge to issue a written decision explaining the
application of the bars. The Departments believe that the existing
processes for issuing decisions and providing review of asylum
determinations give sufficient protections to applicants. See, e.g., 8
CFR 208.14(c)(1) (explaining that, for a removable alien, when an
asylum officer cannot grant an asylum application, the officer shall
refer the application for adjudication in removal proceedings by an
immigration judge); 8 CFR 1003.3(a)(1) (providing for appeals of
immigration judge decisions to the BIA); 8 CFR 1003.37(a) (explaining
that a ``decision of the Immigration Judge may be rendered orally or in
writing,'' and that, if the decision is oral, it shall be ``stated by
the Immigration Judge in the presence of the parties'' and a memorandum
``summarizing the oral decision shall be served on the parties'').
Requiring additional steps beyond these long-standing processes would
only create inefficiencies that this rule seeks to avoid. For example,
this rule removes the automatic review of a discretionary denial of
asylum specifically because ``mandating that the decision maker
reevaluate the very issue just decided is an inefficient practice that
* * * grants insufficient deference to the original fact finding and
exercise of discretion.'' 84 FR at 69657.
The Departments also decline to incorporate a commenter's
suggestion to include the Washington Adult Sentencing Guidelines Manual
into the rule, as the Departments believe the rule provides sufficient
guidance to adjudicators without adding a specific state's criminal law
manual, which would only add confusion to the immigration adjudication
process.
D. Comments Regarding Regulatory Requirements
1. Administrative Procedure Act
Comment: Commenters raised concerns that this rule violated the
APA's requirements, as set forth in 5 U.S.C. 553(b) through (d). First,
commenters stated that the 30-day comment period was not sufficient for
such a significant rule and that, at a minimum, the comment period
should have been 60 days. Commenters cited the complexity of the legal
and policy issues raised by the rule, the impact of the rule on asylum-
seekers, and the potential implications of the rule regarding the
United States' compliance with international and domestic asylum law.
In support, commenters referenced Executive Orders 12866 and 13563,
both of which recommend a ``meaningful opportunity to comment'' with a
comment period of not less than 60 days ``in most cases.'' They also
noted that the comment period for this rule ran through the winter
holiday season, with multiple Federal holidays.
Commenters also stated that the rule was arbitrary and capricious
under the APA because the Departments did not provide sufficient
evidence to support such significant changes. For example, commenters
noted the lack of statistics regarding the number of asylum seekers
that would be affected by the rule and expressed concerned that the
Departments were relying on conclusory statements in support of the
rule.
Commenters further stated that the reasons given for the rule were
insufficient and, therefore, arbitrary and capricious. For example,
commenters took issue with the Departments' explanation that the
additional categories of criminal bars were necessary to address the
``inefficient'' and ``unpredictable'' case-by-case adjudication
process. Instead, commenters stated that the case-by-case process
ensured that the adjudicator takes into account all of the relevant
factors in making a determination.
Commenters had specific concerns with the rule's provision that all
felony convictions constitute a particularly serious crime. Commenters
stated that the rule provided no evidence to support the provision, and
that a criminal record in and of itself does not reliably predict
future dangerousness. Further, the provision does not address persons
who accept plea deals to avoid lengthy potential sentences; who have
rehabilitated since the conviction; or who have committed a crime that
does not involve a danger to the community or circumstances when a
Federal, State, or local judge has concluded that no danger exists by,
for example, imposing a noncustodial sentence.
Commenters stated that the rule was arbitrary and capricious
because it is inconsistent with the statute, see INA 208(b)(2)(A)(ii)
(8 U.S.C. 1158(b)(2)(A)(ii)), which requires a separate showing from
the particularly serious crime determination that the alien constitutes
a danger to the community.
Commenters also raised concerns with the ``reason to believe''
standard for gang-related crime determinations. The commenters asserted
that the standard relied on ineffective, inaccurate, and discriminatory
practices and was therefore arbitrary and capricious.
Response: The Departments believe the 30-day comment period was
sufficient to allow for a meaningful public input, as evidenced by the
significant number of public comments received, including almost 80
detailed comments from interested organizations. The APA does not
require a specific comment period length. See 5 U.S.C. 553(b)-(c).
Similarly, although Executive Orders 12866 and 13563 recommend a
comment period of at least 60 days, such a period is not required.
Federal courts have presumed 30 days to be a reasonable comment period
length. For example, the D.C. Circuit recently stated that, ``[w]hen
substantial rule changes are proposed, a 30-day comment period is
generally the shortest time period sufficient for interested persons to
meaningfully review a proposed rule and provide informed comment.''
Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C.
Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir.
1984)). Litigation has mainly focused on the reasonableness of comment
periods shorter than 30 days, often in the face of exigent
circumstances, and the Departments are unaware of any case
[[Page 67253]]
law holding that a 30-day comment period was insufficient. See, e.g.,
N. Carolina Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755,
770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment
period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996)
(15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645
F.2d 1309, 1321 (8th Cir. 1981) (7-day comment period).
The Departments also believe that the 30-day comment period was
preferable to a longer comment period since this rule involves public
safety concerns. Cf. Haw. Helicopter Operators Ass'n v. FAA, 51 F.3d
212, 214 (9th Cir. 1995) (noting that the Federal Aviation
Administration had good cause to not engage in notice-and-comment
rulemaking because the rule was needed to protect public safety as
demonstrated by numerous then-recent helicopter crashes). By proceeding
with a 30-day comment period rather than a 60-day period, the
Departments are able to more quickly finalize and implement this rule,
which prevents persons with certain criminal histories, such as
domestic violence or gang-related crimes, from receiving asylum and
potentially residing or prolonging their presence in the United States
on that basis during the pendency of the asylum process.
Regarding commenters' APA concerns about the statistical analysis
in this rule, the Departments reiterate that they are unable to provide
precise data on the number of persons affected by the rule because the
Departments do not maintain data on the number of asylum applicants
with criminal convictions or, more specifically, with criminal
convictions and pertinent criminal conduct, that would be subject to
the bars added by this rule. An attempt to quantify the population
affected would risk providing the public with inaccurate data that at
best would be unhelpful. As a general matter, the rule will likely
result in fewer asylum grants annually, but the Departments do not
believe that further analysis--in the absence of any reliable data--is
warranted. See Stilwell v. Office of Thrift Supervision, 569 F.3d 514,
519 (D.C. Cir. 2009) (``The APA imposes no general obligation on
agencies to produce empirical evidence. Rather, an agency has to
justify its rule with a reasoned explanation.''); see also id.
(upholding an agency's decision to rely on its ``long experience'' and
``considered judgment,'' rather than statistical analyses, in
promulgating a rule).
Likewise, the Departments disagree with commenters that the NPRM
did not sufficiently explain the reasons for adding additional per se
criminal bars. As explained in the NPRM, immigration judges and the BIA
have had difficulty applying the ``particularly serious crime'' bar
and, therefore, the Departments believe additional standalone criminal
bars will provide a clear and efficient process for adjudicating asylum
applications involving criminal convictions. See 84 FR at 69646. The
Attorney General and the Secretary have not issued regulations
identifying additional categories of convictions that qualify as
particularly serious crimes, which has in turn resulted in adjudicators
and the courts analyzing on a case-by-case basis whether individual
criminal statutes qualify as particularly serious crimes. However, this
statute-by-statute determination has not provided adjudicators with
sufficient guidance in making ``particularly serious crime''
determinations due to the individualized nature of the BIA's
determinations. See id. By adding these standalone criminal bars, the
rule helps ensure that immigration adjudicators will be able to apply
clear standards outside of applying the particularly serious crime bar.
In regards to commenters' concerns about the blanket felony conviction
bar, the Departments chose to include a bar for all felony convictions
because it provides a clear standard to apply in adjudicating the
effect to be given to criminal offenses as part of asylum
determinations.
Adjudicators will be able to efficiently determine the effect of
criminal convictions without resort to complex legal determinations as
to the immigration effects of a specific criminal statute. The
Departments are aware that the particular personal circumstances and
facts of each case are unique; however, the Departments believe that
the clarity and consistency of a per se rule outweigh any benefits of a
case-by-case approach.
Further, adding a bar to asylum eligibility for all felony
convictions recognizes the significance of felony convictions. For
example, Congress recognized the relationship between felonies and the
seriousness of criminal offenses when it explicitly defined
``aggravated felony'' to include numerous offenses requiring a term of
imprisonment of at least one year. See INA 101(a)(43)(F), (G), (J),
(P), (R), (S) (8 U.S.C. 1101(a)(43)(F), (G), (J), (P), (R), (S)).
Similarly, Congress focused on the importance of felonies in the Armed
Career Criminal Act, a sentencing enhancement statute for persons who
have been convicted of three violent felonies, which requires the
predicate offenses to be punishable by imprisonment for terms exceeding
one year. See 18 U.S.C. 924(e)(2)(B).
The Departments also disagree that the use of the ``reason to
believe'' standard for gang-related crime determinations is arbitrary
and capricious. The ``reason to believe'' standard is used in multiple
subsections of section 212 of the Act (8 U.S.C. 1182) in making
inadmissibility determinations, and the Federal circuit courts have had
no issues reviewing immigration judges' ``reason to believe''
inadmissibility determinations. See, e.g., Chavez-Reyes v. Holder, 741
F.3d 1, 3-4 (9th Cir. 2014) (reviewing ``reason to believe''
determination for substantial evidence); Lopez-Molina, 368 F.3d at 1211
(same). There is no reason that the Departments cannot apply this same
standard when determining whether a criminal conviction involves gang
activity.
In addition, the Departments disagree with commenters that the use
of the ``reason to believe'' standard would enable adjudicators to rely
on inaccurate, ineffective, or discriminatory evidence when making
determinations regarding gang-related crimes. As discussed above,
immigration judges are already charged with considering material and
relevant evidence. 8 CFR 1240.1(c). To make this determination,
immigration judges consider whether evidence is ``probative and whether
its use is fundamentally fair so as not to deprive the alien of due
process of law.'' Ezeagwuna, 325 F.3d at 405 (quoting Bustos-Torres,
898 F.2d at 1055). Nothing in the rule undermines or withdraws from
this standard. If an alien believes that an adjudicator has relied on
inaccurate, ineffective, or discriminatory evidence in making this
determination, such decision would be subject to further review.
Finally, the Departments clarify that this rule creates additional
standalone criminal bars to asylum and does not alter the definitions
of the ``particularly serious crime'' bar. As a result, this rule does
not create any inconsistencies with the ``particularly serious crime''
bar statutory language regarding dangerousness, which, the Departments
note, does not require a separate finding of dangerousness. See INA
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)); see also, e.g., Matter
of R-A-M-, 25 I&N Dec. 657, 662 (BIA 2012) (explaining that, for
purposes of the ``particularly serious crime'' bar, ``it is not
necessary to make a separate determination whether the alien is a
danger to the community'').
[[Page 67254]]
2. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
Comment: Commenters raised concerns that the Departments' cost-
benefit analysis presented no evidence that potential benefits from the
rule exceed the potential costs. For example, commenters explained that
the Departments' primary stated reason for adopting new categorical
bars was that the exercise of discretion has created inefficiency and
inconsistency. However, commenters stated that the Departments' cost-
benefit estimates failed to account for new assessments regarding
numerous questions of law and fact that the rule would require.
Accordingly, commenters argued that the Departments' cost-benefit
analysis was unreliable.
Further, commenters stated that the agencies did not comply with
Executive Orders 12866, 13563, and 13771, which require agencies to
quantify potential costs to the fullest extent possible. Commenters
explained that the Departments noted that the rule would likely result
in fewer asylum grants annually but failed to quantify or evaluate the
impact of the decrease and did not provide any evidence or indication
that an attempt was made at quantifying this impact. Commenters
explained that the Departments are required to use the best methods
available to estimate regulatory costs and benefits, even if those
estimates cannot be precise. Commenters also noted that the Departments
did not attempt to provide a high and low estimate for the rule's
potential impacts despite such an estimation being common practice in
rulemaking.
Commenters noted that public comments on this rule and other recent
asylum-related rulemakings provided the Departments with data regarding
the impacts of asylum denials. Commenters gave examples of potential
costs that the Departments failed to consider, including, for example,
costs from the differences in benefits for individuals who may obtain
only lesser protection in the form of statutory withholding of removal
or protection under the CAT regulations; costs from the detention and
deportation of individuals who would otherwise have meritorious asylum
claims; economic and non-economic costs to asylum-seekers' families;
costs to businesses that currently employ or are patronized by asylum-
seekers; costs from the torture and killings of deported asylum-
seekers; and intangible costs from the diminution of respect for U.S.
treaty obligations and diminution of respect for human life and the
safety of asylum-seekers, among others. As a result, commenters stated
that the Departments did not support their conclusion that ``the
expected costs of this proposed rule are likely to be de minimis.''
Response: The Departments disagree that the rule will create
additional adjudicatory burdens that will outweigh the rule's benefits.
The purpose of the rule is to limit asylum eligibility for persons with
certain criminal convictions, which in turn will lessen the burdens on
the overtaxed asylum system. There are currently more than one million
pending cases at the immigration courts, with significant year over
year increases, despite a near doubling of the number of immigration
judges over the past decade and the completion of historic numbers of
cases. See EOIR, Adjudication Statistics: Pending Cases (July 14,
2020), https://www.justice.gov/eoir/page/file/1242166/download; EOIR,
Adjudication Statistics: Immigration Judge (IJ) Hiring (June 2020),
https://www.justice.gov/eoir/page/file/1242156/download; EOIR,
Adjudication Statistics: New Cases and Total Completions (July 14,
2020), https://www.justice.gov/eoir/page/file/1060841/download). Of
these pending cases, over 575,000 include an asylum application.
These new bars will help achieve the goal of alleviating the burden
on the immigration system while retaining the existing framework for
asylum adjudications. As stated in the NPRM, this rule does not change
the role of an immigration judge or asylum officer in adjudicating
asylum applications; immigration judges and asylum officers currently
consider an applicant's criminal history to determine the associated
immigration consequences, if any, and whether the applicant warrants
asylum as a matter of discretion. See 84 FR at 69657-58. These
additional bars will be considered under that existing framework and,
therefore, the Departments do not anticipate additional costs to the
adjudication process.
In addition, the Departments believe the rule complies with the
cost-benefit analysis required by Executive Orders 12866, 13563, and
13771. Executive Order 12866 requires the Departments to quantify costs
``to the fullest extent that these can be usefully estimated.'' See
E.O. 12866, 58 FR 51735, 51735, sec. 1(a) (Sept. 30, 1993). As
explained in the NPRM, the Departments do not maintain data on the
number of asylum applicants with criminal convictions or, more
specifically, with criminal convictions and pertinent criminal conduct,
that would be subject to the bars added by this rule. Without this
data, the Departments cannot reliably estimate the population effected
by this rule, outside of identifying the group likely affected by the
rule: Asylum applicants with criminal convictions and pertinent
criminal conduct, barred under this rule, and asylum applicants denied
asylum solely as a matter of discretion that will no longer receive
automatic review of such decisions.
Based on this identified population, commenters provided a number
of potential ancillary costs to the likely increase in asylum denials
under these additional bars, which the Departments have reviewed. As
explained in the NPRM, a main effect of the likely increase in asylum
denials is a potential increase in grants of statutory withholding of
removal or protection under the CAT regulations. 84 FR at 69658. These
forms of protection do not provide the same benefits as asylum,
including the ability to gain permanent status in the United States,
obtain derivative status for family members, or travel outside the
country. Such non-monetary costs are difficult to quantify, but the
Departments believe that the similarly difficult-to-quantify benefits
associated with the rule--such as a reduction in the risks associated
with dangerous aliens and an increase in adjudicative efficiency--
outweigh these costs.
Commenters also cited other potential costs, such as the effects
that the bars could have on businesses employing or patronized by
asylum applicants. However, such projections were general, tenuous, and
unsupported by data, and the Departments are unaware of any reliable
data parsing business income attributable to individuals affected by
this rule--i.e., asylum applicants who have been convicted of or
engaged in certain types of criminal behavior--as opposed to non-
criminal asylum applicants, asylees, refugees, aliens granted statutory
withholding of removal or protection under the CAT, or other groups of
aliens in general. Moreover, because aliens may still obtain work
authorization if granted withholding of removal or protection under the
CAT, 8 CFR 274a.12(a)(10), this rule would not necessarily foreclose
employment or patronage opportunities for aliens subject to its
parameters. Finally, even if there were identifiable economic costs for
these aliens, the Departments believe that the benefits associated with
limiting asylum eligibility based on certain criminal conduct would
outweigh them because
[[Page 67255]]
of (1) the rule's likely impact in improving adjudicatory efficiency,
and (2) the intangible benefits associated with promotion of the rule
of law. See E.O. 12866, 58 FR at 51734 (directing agencies to account
for ``qualitative'' benefits that are ``difficult to quantify,'' but
which are ``essential to consider''). The Departments further disagree
with commenters' assertions that these bars will have a negative
intangible cost on the United States' interests or international
standing, as Congress expressly conferred on the Attorney General and
the Secretary the authority to provide these additional asylum
limitations, which--as explained in the NPRM--are consistent with U.S.
treaty obligations. See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)); 84
FR at 69644.
III. Provisions of the Final Rule
The Departments have considered and responded to the comments
received in response to the NPRM. In accordance with the authorities
discussed above in section I.A, the Departments are now issuing this
final rule to finalize the NPRM. The final rule adopts the provisions
of the NPRM as final, with the following minor edits for clarity, for
the reasons discussed above in section II in response to the comments
received.\42\
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\42\ In addition, the final rule makes clarifying grammatical
edits to the punctuation of the proposed rule, such as by replacing
semicolons with periods where relevant.
---------------------------------------------------------------------------
A. 8 CFR 208.13(c)(6)(ii)
As drafted in the NPRM, 8 CFR 208.13(c)(6)(ii) would have included
a reference to ``the Secretary:'' ``The alien has been convicted [of a
crime] that the Secretary knows or has reason to believe * * * .'' For
internal consistency within 8 CFR 208.13(c)(6)(ii) and for specificity,
the Departments are replacing this reference to ``the Secretary'' with
``the asylum officer,'' the officials in DHS who adjudicate asylum
applications.
B. 8 CFR 1208.13(c)(6)(ii)
Regulations in chapter V of 8 CFR govern proceedings before EOIR
and not before DHS. The Departments, however, mistakenly listed both
the Attorney General and the Secretary in 8 CFR 1208.13(c)(6)(ii) as
drafted in the NPRM: ``The alien has been convicted [of a crime] that
the Attorney General or Secretary knows or has reason to believe * * *
.'' This final rule removes the reference to the Secretary so that 8
CFR 208.13(c)(6)(ii), governing DHS, references the Secretary, and 8
CFR 1208.13(c)(6)(ii) references only officials within DOJ. It further
changes ``Attorney General'' to ``immigration judge'' for internal
consistency within the rest of 8 CFR 1208.13.
C. 8 CFR 1208.13(c)(6)(v)(B)
This rule amends the cross-reference in 8 CFR 1208.13(c)(6)(v)(B)
so that it reads ``under paragraph (c)(6)(v)(A)'' instead of ``under
paragraph (c)(6)(v)'' as published in the NPRM. This change provides
clarity and matches the same cross-reference in 8 CFR
208.13(c)(6)(v)(B)-(C) and 8 CFR 1208.13(c)(6)(v)(C).
In addition, this rule changes ``adjudicator'' to ``immigration
judge'' for specificity and clarity. This matches the specific
reference to ``asylum officer,'' who is the relevant adjudicating
entity for DHS, in 8 CFR 208.13(c)(6)(v)(B).
D. 8 CFR 1208.13(c)(7)(v)
As with the change discussed above to 8 CFR 1208.13(c)(6)(v)(B),
this rule corrects the reference to the ``asylum officer'' to read
``immigration judge'' in 8 CFR 1208.13(c)(7)(v). The immigration judge
is the relevant adjudicator for DOJ's regulations.
E. 8 CFR 1208.13(c)(9)
As with the change discussed above regarding 8 CFR
1208.13(c)(6)(v)(B), this rule removes ``or other adjudicator'' from
the proposed text for 8 CFR 1208.13(c)(9). This change provides clarity
because the immigration judge is the relevant adjudicator for DOJ's
regulations and matches the specific reference to only an ``asylum
officer'' in 8 CFR 208.13(c)(9).
F. 8 CFR 208.13(c)(6)(vii) and 8 CFR 1208.13(c)(6)(vii)
This rule amends the same language in both 8 CFR 208.13(c)(6)(vii)
and 8 CFR 1208.13(c)(6)(vii) so that the provisions instruct that an
alien will be barred from asylum if the immigration judge or asylum
officer ``knows or has reason to believe'' that the alien has engaged
on or after the effective date in certain acts of battery or extreme
cruelty. Previously, these provisions provided ``[t]here are serious
reasons for believing'' the alien has engaged in such conduct. In other
words, the Departments have replaced the ``serious reasons for
believing'' standard in proposed 8 CFR 208.13(c)(6)(vii) and proposed
1208.13(c)(6)(vii) with a ``knows or has reason to believe'' standard.
This change is intended to prevent confusion and ensure the rule's
consistency, both within the new provisions it adds to 8 CFR and with
the INA more generally. As discussed above, the ``reason to believe''
standard is used in multiple subsections of section 212 of the Act (8
U.S.C. 1182) in making inadmissibility determinations. See, e.g., INA
212(a)(2)(C)(i) (8 U.S.C. 1182(a)(2)(C)(i)) (providing that an alien
who ``the consular officer or the Attorney General knows or has reason
to believe'' is an illicit trafficker of controlled substances is
inadmissible). The Federal circuit courts have had no issues reviewing
immigration judges' ``reason to believe'' inadmissibility
determinations. See, e.g., Chavez-Reyes, 741 F.3d at 3-4 (reviewing
``reason to believe'' determination for substantial evidence); Lopez-
Molina, 368 F.3d at 1211 (same). Further, without this change, the rule
may have created additional unintended questions regarding what sort of
reasons to believe are sufficient to qualify as ``serious'' reasons.
Although the Departments are modifying the language in the final rule
to reduce the likelihood of confusion, they reiterate that the language
in 8 CFR 208.13(c)(6)(vii) and 8 CFR 1208.13(c)(6)(vii) is intended to
be analogous to similar provisions in 8 CFR 204.2.
IV. Regulatory Requirements
A. Regulatory Flexibility Act
The Departments have reviewed this proposed rule in accordance with
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and have
determined that this rule will not have a significant economic impact
on a substantial number of small entities. The rule would not regulate
``small entities'' as that term is defined in 5 U.S.C. 601(6). Only
individuals, rather than entities, are eligible to apply for asylum,
and only individuals are eligible to apply for asylum or are otherwise
placed in immigration proceedings.
B. Administrative Procedure Act
This final rule is being published with a 30-day effective date as
required by the Administrative Procedure Act. 5 U.S.C. 553(d).
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995. See 2 U.S.C. 1532(a).
[[Page 67256]]
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule is not a major rule as defined by section 804 of the
Congressional Review Act. 5 U.S.C. 804(2). This rule will not result in
an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
E. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
The Office of Information and Regulatory Affairs, Office of
Management and Budget (``OMB''), has designated this rule a
``significant regulatory action'' under section 3(f)(4) of Executive
Order 12866, but not an economically significant regulatory action.
Accordingly, the rule has been submitted to OMB for review. The
Departments certify that this rule has been drafted in accordance with
the principles of Executive Order 12866, section 1(b); Executive Order
13563; and Executive Order 13771.
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. Similarly, Executive
Order 13771 requires agencies to manage both the public and private
costs of regulatory actions.
Because this final rule does not make substantive changes from the
NPRM that would impact the rule's expected costs and benefits, the
Departments have performed the same analysis as set out in the NPRM. 84
FR at 69657-59.
This rule provides seven additional mandatory bars to eligibility
for asylum pursuant to the Attorney General's and the Secretary's
authorities under sections 208(b)(2)(C) and 208(d)(5) of the INA (8
U.S.C. 1182(b)(2)(C) and 1182(d)(5)).\43\ This rule adds bars on
eligibility for aliens who commit certain offenses in the United States
after entering the country. Those bars would apply to aliens who are
convicted of, or engage in criminal conduct, as appropriate, with
respect to: (1) A felony under Federal, State, tribal, or local law;
(2) an offense under section 274(a)(1)(A) or (a)(2) of the Act (8
U.S.C. 1324(a)(1)(A) or 1324(a)(2)) (Alien Smuggling or Harboring); (3)
an offense under section 276 of the Act (8 U.S.C. 1326) (Illegal
Reentry); (4) a Federal, State, tribal, or local crime involving
criminal street gang activity; (5) certain Federal, State, tribal, or
local offenses concerning the operation of a motor vehicle while under
the influence of an intoxicant; (6) a Federal, State, tribal, or local
domestic violence offense; and (7) certain misdemeanors under Federal,
State, tribal, or local law for offenses related to false
identification; the unlawful receipt of public benefits from a Federal,
State, tribal, or local entity; or the possession or trafficking of a
controlled substance or controlled-substance paraphernalia.
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\43\ As discussed further below, this rule will not otherwise
impact the ability of an alien who is denied asylum to receive the
protection of withholding of removal under the Act or withholding of
removal or deferral of removal under the CAT.
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The seven bars are in addition to the existing mandatory bars
relating to the persecution of others, convictions for particularly
serious crimes, commission of serious nonpolitical crimes, security
threats, terrorist activity, and firm resettlement in another country
that are currently contained in the INA and its implementing
regulations. See INA 208(b)(2) (8 U.S.C. 1158(b)(2)); 8 CFR 208.13,
1208.13. Under the current statutory and regulatory framework, asylum
officers and immigration judges consider the applicability of mandatory
bars to the relief of asylum in every proceeding involving an alien who
has submitted a Form I-589 application for asylum. Although this rule
expands the mandatory bars to asylum, it does not change the nature or
scope of the role of an immigration judge or an asylum officer during
proceedings for consideration of asylum applications. Immigration
judges and asylum officers are already trained to consider both an
alien's previous conduct and criminal record to determine whether any
immigration consequences result, and this rule does not propose any
adjudications that are more challenging than those that are already
conducted. For example, immigration judges already consider the
documentation of an alien's criminal record that is filed by the alien,
the alien's representative, or the DHS representative in order to
determine whether one of the mandatory bars applies and whether the
alien warrants asylum as a matter of discretion. Because the new bars
all relate to an alien's criminal convictions or other criminal
conduct, adjudicators will conduct the same analysis to determine the
applicability of the bars proposed by the rule.\44\ The Departments do
not expect the additional mandatory bars to increase the adjudication
time for immigration court proceedings involving asylum applications.
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\44\ The Departments note that one of the new bars, regarding
whether the alien has ``engaged'' in certain acts of battery or
extreme cruelty, does not necessarily require a criminal conviction
or criminal conduct. The Departments believe that a criminal arrest
or conviction is the most likely evidence to be filed with the
immigration court related to this bar, but even in cases where no
such evidence is available, the analysis by immigration judges
related to this bar is not an expansion from the current analysis
immigration judges employ in determining whether conduct rises to
level of ``extreme cruelty'' under 8 CFR 204.2(c)(1)(vi) in other
contexts during removal proceedings. See, e.g., Bedoya-Melendez v.
U.S. Atty. Gen., 680 F.3d 1321, 1326-28 (11th Cir. 2012)
(demonstrating that, although there is a circuit split as to whether
the ``extreme cruelty'' analysis is discretionary, all circuits look
to conduct and not convictions in conducting the ``extreme cruelty''
analysis); Stepanovic v. Filip, 554 F.3d 673, 680 (7th Cir. 2009)
(explaining that, in analyzing whether conduct rises to the level of
``extreme cruelty,'' the immigration judge ``must determine the
facts of a particular case, make a judgment call as to whether those
facts constitute cruelty, and, if so, whether the cruelty rises to
such a level that it can rightly be described as extreme''). In
addition, adjudicators have experience reviewing questions of an
alien's conduct in other contexts during the course of removal
proceedings. See INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C))
(providing that an alien is inadmissible if ``the Attorney General
knows or has reason to believe'' that the alien is an illicit
trafficker of a controlled substance, regardless of whether the
alien has a controlled substance-related conviction).
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The expansion of the mandatory bars for asylum would likely result
in fewer asylum grants annually; \45\ 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. An alien who would be
barred from asylum as a result of the rule may still be eligible to
apply for the protection of withholding of removal under section
241(b)(3) of the INA (8 U.S.C. 1231(b)(3)) or withholding of removal or
deferral of removal under regulations implementing U.S. obligations
under Article 3 of the CAT. See INA 241(b)(3) (8 U.S.C. 1231(b)(3));
[[Page 67257]]
8 CFR 208.16 through 208.18; 1208.16 through 1208.18. For those aliens
barred from asylum under this rule who would otherwise be positively
adjudicated for asylum, it is possible they would qualify for
withholding (provided a bar to withholding did not apply separate and
apart from this rule) or deferral of removal.\46\ To the extent this
rule has any impacts, they would almost exclusively fall on that
population.\47\
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\45\ In Fiscal Year (``FY'') 2018, DOJ's immigration courts
granted over 13,000 applications for asylum. See EOIR, Adjudication
Statistics: Asylum Decision Rates, (July 14, 2020), https://www.justice.gov/eoir/page/file/1248491/download.
\46\ Because asylum applications may be denied for multiple
reasons and because the proposed bars do not have exact analogues in
existing immigration law, there is no precise data on how many
otherwise grantable asylum applications would be denied using these
bars and, thus, there is no way to calculate precisely how many
aliens would be granted withholding. Further, because the
immigration judge would have to adjudicate the application in either
case, there is no cost to DOJ.
\47\ In FY 2018, DOJ's immigration courts completed 45,923 cases
with an application for asylum on file. For the first three quarters
of FY 2018, 622 applicants were denied asylum but granted
withholding.
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The full extent of the impacts on this population is unclear and
would depend on the specific circumstances and personal characteristics
of each alien, and neither DHS nor DOJ collects such data at such a
level of granularity. Both asylum applicants and those who receive
withholding of removal or protection under CAT may obtain work
authorization in the United States. Although asylees may apply for
lawful permanent resident status and later citizenship, they are not
required to do so, and some do not. Further, although asylees may bring
certain family members to the United States, not all asylees have
family members or family members who wish to leave their home
countries. Moreover, family members of aliens granted withholding of
removal may have valid asylum claims in their own right, which would
provide them with a potential path to the United States as well. The
only clear impact is that aliens granted withholding of removal
generally may not travel outside the United States without executing
their underlying order of removal and, thus, may not be allowed to
return to the United States; however, even in that situation--depending
on the destination of their travel--they may have a prima facie case
for another grant of withholding of removal should they attempt to
reenter. In short, there is no precise quantification available for the
impact, if any, of this rule beyond the general notion that it will
likely result in fewer grants of asylum on the whole.
Applications for withholding of removal typically require a similar
amount of in-court time to complete as an asylum application due to a
similar nucleus of facts. 8 CFR 1208.3(b) (an asylum application is
deemed to be an application for withholding of removal). In addition,
this rule does not affect the eligibility of applicants for the
employment authorization documents available to recipients of those
protections and during the pendency of the consideration of the
application in accordance with the current regulations and agency
procedures. See 8 CFR 274a.12(c)(8), (c)(18), 208.7, 1208.7.
This rule removes the provision at 8 CFR 208.16(e) and 1208.16(e)
regarding automatic reconsideration of discretionary denials of asylum.
This change has no impact on DHS adjudicative operations because DHS
does not adjudicate withholding requests. DOJ estimates that
immigration judges nationwide must apply 8 CFR 1208.16(e) in
approximately 800 cases per year on average.\48\ The removal of the
requirement to reconsider a discretionary denial will increase
immigration court efficiencies and reduce any cost from the increased
adjudication time by no longer requiring a second review of the same
application by the same immigration judge. This impact, however, would
likely be minor because of the small number of affected cases, and
because affected aliens have other means to seek reconsideration of a
discretionary denial of asylum. Accordingly, DOJ has concluded that
removal of paragraphs 8 CFR 208.16(e) and 1208.16(e) would not increase
the costs of EOIR's operations, and would, if anything, result in a
small increase in efficiency. Removal of 8 CFR 208.16(e) and 1208.16(e)
may have a marginal cost for aliens in immigration court proceedings by
removing one avenue for an alien who would otherwise be denied asylum
as a matter of discretion to be granted that relief. However, of the
average of 800 aliens situated as such each year during the last 10
years, an average of fewer than 150, or 0.4 percent, of the average
38,000 total asylum completions \49\ each year filed an appeal in their
case, so the affected population is very small, and the overall impact
would be nominal at most.\50\ Moreover, such aliens would retain the
ability to file a motion to reconsider in such a situation and, thus,
would not actually lose the opportunity for reconsideration of a
discretionary denial.
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\48\ This approximation is based on the number of initial case
completions with an asylum application on file that had a denial of
asylum but a grant of withholding during FYs 2009 through the third
quarter of 2018.
\49\ Thirty-eight thousand is the average of completions of
cases with an asylum application on file from FY 2008 through FY
2018. Completions consist of both initial case completions and
subsequent case completions.
\50\ Because each case may have multiple bases for appeal and
appeal bases are not tracked to specific levels of granularity, it
is not possible to quantify precisely how many appeals were
successful on this particular issue.
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For the reasons explained above, the expected costs of this rule
are likely to be de minimis. This rule is accordingly exempt from
Executive Order 13771. See OMB, Guidance Implementing Executive Order
13771, titled ``Reducing Regulation and Controlling Regulatory Costs''
(2017), https://www.whitehouse .gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. 3501 et
seq., and its implementing regulations, 5 CFR part 1320.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, has delegated the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
[[Page 67258]]
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble and pursuant
to the authority vested in the Acting Secretary of Homeland Security,
part 208 of title 8 of the Code of Federal Regulations is amended as
follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as fol1ows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229, 8 CFR part 2; Pub. L. 115-218.
0
2. Amend Sec. 208.13 by adding paragraphs (c)(6) through (9) to read
as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(6) Additional limitations on eligibility for asylum. For
applications filed on or after November 20, 2020, an alien shall be
found ineligible for asylum if:
(i) The alien has been convicted on or after such date of an
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the
Act;
(ii) The alien has been convicted on or after such date of a
Federal, State, tribal, or local crime that the asylum officer knows or
has reason to believe was committed in support, promotion, or
furtherance of the activity of a criminal street gang as that term is
defined either under the jurisdiction where the conviction occurred or
in section 521(a) of title 18;
(iii) The alien has been convicted on or after such date of an
offense for driving while intoxicated or impaired as those terms are
defined under the jurisdiction where the conviction occurred (including
a conviction for driving while under the influence of or impaired by
alcohol or drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under Federal, State, tribal, or
local law, in which such impaired driving was a cause of serious bodily
injury or death of another person;
(iv)(A) The alien has been convicted on or after such date of a
second or subsequent offense for driving while intoxicated or impaired
as those terms are defined under the jurisdiction where the conviction
occurred (including a conviction for driving while under the influence
of or impaired by alcohol or drugs) without regard to whether the
conviction is classified as a misdemeanor or felony under Federal,
State, tribal, or local law;
(B) A finding under paragraph (c)(6)(iv)(A) of this section does
not require the asylum officer to find the first conviction for driving
while intoxicated or impaired (including a conviction for driving while
under the influence of or impaired by alcohol or drugs) as a predicate
offense. The asylum officer need only make a factual determination that
the alien was previously convicted for driving while intoxicated or
impaired as those terms are defined under the jurisdiction where the
convictions occurred (including a conviction for driving while under
the influence of or impaired by alcohol or drugs).
(v)(A) The alien has been convicted on or after such date of a
crime that involves conduct amounting to a crime of stalking; or a
crime of child abuse, child neglect, or child abandonment; or that
involves conduct amounting to a domestic assault or battery offense,
including a misdemeanor crime of domestic violence, as described in
section 922(g)(9) of title 18, a misdemeanor crime of domestic violence
as described in section 921(a)(33) of title 18, a crime of domestic
violence as described in section 12291(a)(8) of title 34, or any crime
based on conduct in which the alien harassed, coerced, intimidated,
voluntarily or recklessly used (or threatened to use) force or violence
against, or inflicted physical injury or physical pain, however slight,
upon a person, and committed by:
(1) An alien who is a current or former spouse of the person;
(2) An alien with whom the person shares a child in common;
(3) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(4) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(5) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government.
(B) In making a determination under paragraph (c)(6)(v)(A) of this
section, including in determining the existence of a domestic
relationship between the alien and the victim, the underlying conduct
of the crime may be considered and the asylum officer is not limited to
facts found by the criminal court or provided in the underlying record
of conviction.
(C) An alien who was convicted of offenses described in paragraph
(c)(6)(v)(A) of this section is not subject to ineligibility for asylum
on that basis if the alien would be described in section 237(a)(7)(A)
of the Act were the crimes or conduct considered grounds for
deportability under section 237(a)(2)(E)(i) through (ii) of the Act.
(vi) The alien has been convicted on or after such date of--
(A) Any felony under Federal, State, tribal, or local law;
(B) Any misdemeanor offense under Federal, State, tribal, or local
law involving:
(1) The possession or use of an identification document,
authentication feature, or false identification document without lawful
authority, unless the alien can establish that the conviction resulted
from circumstances showing that the document was presented before
boarding a common carrier, that the document related to the alien's
eligibility to enter the United States, that the alien used the
document to depart a country in which the alien has claimed a fear of
persecution, and that the alien claimed a fear of persecution without
delay upon presenting himself or herself to an immigration officer upon
arrival at a United States port of entry;
(2) The receipt of Federal public benefits, as defined in 8 U.S.C.
1611(c), from a Federal entity, or the receipt of similar public
benefits from a State, tribal, or local entity, without lawful
authority; or
(3) Possession or trafficking of a controlled substance or
controlled-substance paraphernalia, other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana.
(vii) The asylum officer knows or has reason to believe that the
alien has engaged on or after such date in acts of battery or extreme
cruelty as defined in 8 CFR 204.2(c)(1)(vi), upon a person, and
committed by:
(A) An alien who is a current or former spouse of the person;
(B) An alien with whom the person shares a child in common;
(C) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(D) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(E) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local
[[Page 67259]]
government, even if the acts did not result in a criminal conviction;
(F) Except that an alien who was convicted of offenses or engaged
in conduct described in paragraph (c)(6)(vii) of this section is not
subject to ineligibility for asylum on that basis if the alien would be
described in section 237(a)(7)(A) of the Act were the crimes or conduct
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii)
of the Act.
(7) For purposes of paragraph (c)(6) of this section:
(i) The term ``felony'' means any crime defined as a felony by the
relevant jurisdiction (Federal, State, tribal, or local) of conviction,
or any crime punishable by more than one year of imprisonment.
(ii) The term ``misdemeanor'' means any crime defined as a
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or
local) of conviction, or any crime not punishable by more than one year
of imprisonment.
(iii) Whether any activity or conviction also may constitute a
basis for removability under the Act is immaterial to a determination
of asylum eligibility.
(iv) All references to a criminal offense or criminal conviction
shall be deemed to include any attempt, conspiracy, or solicitation to
commit the offense or any other inchoate form of the offense.
(v) No order vacating a conviction, modifying a sentence,
clarifying a sentence, or otherwise altering a conviction or sentence,
shall have any effect unless the asylum officer determines that--
(A) The court issuing the order had jurisdiction and authority to
do so; and
(B) The order was not entered for rehabilitative purposes or for
purposes of ameliorating the immigration consequences of the conviction
or sentence.
(8) For purposes of paragraph (c)(7)(v)(B) of this section, the
order shall be presumed to be for the purpose of ameliorating
immigration consequences if:
(i) The order was entered after the initiation of any proceeding to
remove the alien from the United States; or
(ii) The alien moved for the order more than one year after the
date of the original order of conviction or sentencing.
(9) An asylum officer is authorized to look beyond the face of any
order purporting to vacate a conviction, modify a sentence, or clarify
a sentence to determine whether the requirements of paragraph (c)(7)(v)
of this section have been met in order to determine whether such order
should be given any effect under this section.
Sec. 208.16 [Amended]
0
3. Amend Sec. 208.16 by removing and reserving paragraph (e).
Department of Justice
Accordingly, for the reasons set forth in the preamble, the
Attorney General amends 8 CFR part 1208 as follows:
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
4. The authority citation for part 1208 continues to read as fol1ows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; Pub. L. 115-218.
0
5. Amend Sec. 1208.13 by adding paragraphs (c)(6) through (9) to read
as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(6) Additional limitations on eligibility for asylum. For
applications filed on or after November 20, 2020, an alien shall be
found ineligible for asylum if:
(i) The alien has been convicted on or after such date of an
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the
Act;
(ii) The alien has been convicted on or after such date of a
Federal, State, tribal, or local crime that the immigration judge knows
or has reason to believe was committed in support, promotion, or
furtherance of the activity of a criminal street gang as that term is
defined either under the jurisdiction where the conviction occurred or
in section 521(a) of title 18;
(iii) The alien has been convicted on or after such date of an
offense for driving while intoxicated or impaired as those terms are
defined under the jurisdiction where the conviction occurred (including
a conviction for driving while under the influence of or impaired by
alcohol or drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under Federal, State, tribal, or
local law, in which such impaired driving was a cause of serious bodily
injury or death of another person;
(iv)(A) The alien has been convicted on or after such date of a
second or subsequent offense for driving while intoxicated or impaired
as those terms are defined under the jurisdiction where the conviction
occurred (including a conviction for driving while under the influence
of or impaired by alcohol or drugs) without regard to whether the
conviction is classified as a misdemeanor or felony under Federal,
State, tribal, or local law;
(B) A finding under paragraph (c)(6)(iv)(A) of this section does
not require the immigration judge to find the first conviction for
driving while intoxicated or impaired (including a conviction for
driving while under the influence of or impaired by alcohol or drugs)
as a predicate offense. The immigration judge need only make a factual
determination that the alien was previously convicted for driving while
intoxicated or impaired as those terms are defined under the
jurisdiction where the convictions occurred (including a conviction for
driving while under the influence of or impaired by alcohol or drugs).
(v)(A) The alien has been convicted on or after such date of a
crime that involves conduct amounting to a crime of stalking; or a
crime of child abuse, child neglect, or child abandonment; or that
involves conduct amounting to a domestic assault or battery offense,
including a misdemeanor crime of domestic violence, as described in
section 922(g)(9) of title 18, a misdemeanor crime of domestic violence
as described in section 921(a)(33) of title 18, a crime of domestic
violence as described in section 12291(a)(8) of title 34, or any crime
based on conduct in which the alien harassed, coerced, intimidated,
voluntarily or recklessly used (or threatened to use) force or violence
against, or inflicted physical injury or physical pain, however slight,
upon a person, and committed by:
(1) An alien who is a current or former spouse of the person;
(2) An alien with whom the person shares a child in common;
(3) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(4) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(5) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government.
(B) In making a determination under paragraph (c)(6)(v)(A) of this
section, including in determining the existence of a domestic
relationship between the alien and the victim, the underlying conduct
of the crime may be considered and the immigration judge is not limited
to facts found by the criminal court or
[[Page 67260]]
provided in the underlying record of conviction.
(C) An alien who was convicted of offenses described in paragraph
(c)(6)(v)(A) of this section is not subject to ineligibility for asylum
on that basis if the alien would be described in section 237(a)(7)(A)
of the Act were the crimes or conduct considered grounds for
deportability under section 237(a)(2)(E)(i) through (ii) of the Act.
(vi) The alien has been convicted on or after such date of--
(A) Any felony under Federal, State, tribal, or local law;
(B) Any misdemeanor offense under Federal, State, tribal, or local
law involving:
(1) The possession or use of an identification document,
authentication feature, or false identification document without lawful
authority, unless the alien can establish that the conviction resulted
from circumstances showing that the document was presented before
boarding a common carrier, that the document related to the alien's
eligibility to enter the United States, that the alien used the
document to depart a country in which the alien has claimed a fear of
persecution, and that the alien claimed a fear of persecution without
delay upon presenting himself or herself to an immigration officer upon
arrival at a United States port of entry;
(2) The receipt of Federal public benefits, as defined in 8 U.S.C.
1611(c), from a Federal entity, or the receipt of similar public
benefits from a State, tribal, or local entity, without lawful
authority; or
(3) Possession or trafficking of a controlled substance or
controlled-substance paraphernalia, other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana.
(vii) The immigration judge knows or has reason to believe that the
alien has engaged on or after such date in acts of battery or extreme
cruelty as defined in 8 CFR 204.2(c)(1)(vi), upon a person, and
committed by:
(A) An alien who is a current or former spouse of the person;
(B) An alien with whom the person shares a child in common;
(C) An alien who is cohabiting with or has cohabited with the
person as a spouse;
(D) An alien similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the offense
occurs; or
(E) Any other alien against a person who is protected from that
alien's acts under the domestic or family violence laws of the United
States or any State, tribal government, or unit of local government,
even if the acts did not result in a criminal conviction;
(F) Except that an alien who was convicted of offenses or engaged
in conduct described in paragraph (c)(6)(vii) of this section is not
subject to ineligibility for asylum on that basis if the alien would be
described in section 237(a)(7)(A) of the Act were the crimes or conduct
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii)
of the Act.
(7) For purposes of paragraph (c)(6) of this section:
(i) The term ``felony'' means any crime defined as a felony by the
relevant jurisdiction (Federal, State, tribal, or local) of conviction,
or any crime punishable by more than one year of imprisonment.
(ii) The term ``misdemeanor'' means any crime defined as a
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or
local) of conviction, or any crime not punishable by more than one year
of imprisonment.
(iii) Whether any activity or conviction also may constitute a
basis for removability under the Act is immaterial to a determination
of asylum eligibility.
(iv) All references to a criminal offense or criminal conviction
shall be deemed to include any attempt, conspiracy, or solicitation to
commit the offense or any other inchoate form of the offense.
(v) No order vacating a conviction, modifying a sentence,
clarifying a sentence, or otherwise altering a conviction or sentence,
shall have any effect unless the immigration judge determines that--
(A) The court issuing the order had jurisdiction and authority to
do so; and
(B) The order was not entered for rehabilitative purposes or for
purposes of ameliorating the immigration consequences of the conviction
or sentence.
(8) For purposes of paragraph (c)(7)(v)(B) of this section, the
order shall be presumed to be for the purpose of ameliorating
immigration consequences if:
(i) The order was entered after the initiation of any proceeding to
remove the alien from the United States; or
(ii) The alien moved for the order more than one year after the
date of the original order of conviction or sentencing.
(9) An immigration judge is authorized to look beyond the face of
any order purporting to vacate a conviction, modify a sentence, or
clarify a sentence to determine whether the requirements of paragraph
(c)(7)(v) of this section have been met in order to determine whether
such order should be given any effect under this section.
Sec. 1208.16 [Amended]
0
6. Amend Sec. 1208.16 by removing and reserving paragraph (e).
Approved:
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
Approved:
Dated: October 14, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-23159 Filed 10-20-20; 8:45 am]
BILLING CODE 4410-30-P 9111-97-P
