Procedures for Asylum and Bars to Asylum Eligibility

Cited as:85 FR 67202
Court:Executive Office For Immigration Review
Publication Date:21 Oct 2020
Record Number:2020-23159
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 IV
                Department of Homeland Security
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                Department of Justice
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                Executive Office for Immigration Review
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                8 CFR Parts 208 and 1208
                Procedures 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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