RILA's Response
Dear Attorney General Barr and Acting Secretary Wolf:
On behalf of Restoration Immigration Legal Aid (RILA), we respectfully submit comments opposing the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) and Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS) (the Departments) Joint Notice of Proposed Rulemaking (NPRM or “proposed rule”): Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review; RIN 1615-AC42/1125-AA94/EOIR Docket No. 18-0002/A.G. Order No. 4714-2020, published in the Federal Register on June 15, 2020. For the reasons described herein, we respectfully request that the Departments withdraw these proposed rules in their entirety.
RILA is a volunteer-based organization that operates within Restoration Anglican Church in Arlington, Virginia. RILA holds evening clinics twice a month, in which immigrant families meet with attorneys to work on their cases. RILA holistically supports immigrants in our community by providing excellent, pro bono immigration legal assistance to those who are most vulnerable and who have the fewest resources. RILA currently represents over 260 asylum seekers from countries in Central and South America, Africa, Asia, and the Middle East. Most of our clients are fleeing persecution and prevalent violence in their home countries, and many are unaccompanied minors. Though these families have been through unspeakable tragedy, they persist with resilience, hard work, and love their families. It is our privilege to walk with these families through their immigration journey.
Asylum is a lifeline for tens of thousands of vulnerable refugees, and these proposed regulations violate the United States’ duties under domestic law and international law. Just as importantly, these rules, which would eliminate asylum for the vast majority of asylum seekers, are morally wrong—if the proposed rules are published as written, the U.S. will cease to be a leader in providing humanitarian protection and protecting the most vulnerable. We urge you not to allow that to happen.
Overall, the proposed rule would result in virtually all asylum applicants being denied relief by removing due process protections, imposing new bars, heightening legal standards, changing established legal precedent, and creating sweeping categories of mandatory discretionary denials. In a best-case scenario, the result of these changes would be to leave a higher percentage of those fleeing harm in a permanent state of limbo, if they are able to meet the higher legal standard to qualify for withholding of removal under INA § 241(b)(3). Since those who qualify for withholding of removal have no ability to petition for derivative beneficiaries, these rules would result in permanent family separations.
Objection to the 30-Day Public Comment Period for the Notice of Proposed Rulemaking (NPRM)
As discussed below, the proposed rulemaking would completely eviscerate asylum protections. These regulatory changes seek to rewrite the laws adopted by Congress and would be the most sweeping changes to asylum law since the 1996 overhaul of the Immigration and Nationality Act, Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA). The NPRM includes dense, technical language and sweeping new restrictions that have the power to send the most vulnerable back to their countries where they may face persecution, torture, or death. Any one of the sections of these regulations, standing alone, would merit the typical 60 days comment period that is recommended under Executive Order 12866. Instead, the agencies have allowed a mere 30 days to respond to multiple, unrelated changes to the asylum rules, issued in a single, mammoth document.
As stated in Sec 6(a)(1) of Executive Order 12866, “each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days.” This additional time is particularly important when asking for public comment during the COVID-19 public health emergency. Due to state and local regulations on social distancing, we have not been able to conduct business as usual, and we have not had sufficient time to analyze and respond to these proposed rules. Furthermore, there is no urgency for passage of a rule restricting asylum when our borders are now closed to asylum seekers indefinitely.
Based on this procedural argument, we urge the Departments to rescind the proposed rule. If you decide to reissue the proposed regulations, we request that you grant the public at least 60 days to have adequate time to provide comprehensive comments. Despite our objections to the current 30-day timeframe for comments, we nonetheless submit this comment objecting to the proposed regulations. However, we note that our comments below do not and cannot adequately represent the extent of our intended input and analysis and should not be construed as such.
Section B.1. Form I–589, Application for Asylum and for Withholding of Removal, Filing Requirements; Frivolous Applications
The Departments propose to radically alter and expand the definition of a “frivolous” asylum application. Under the proposed rule, an asylum seeker could be charged with filing a “frivolous” application, and thereby be subject to one of the harshest bars in immigration law (see INA § 208(d)(6)), and rendered ineligible for any form of immigration relief in the future, merely if the adjudicator determines that it lacks “merit” or is “foreclosed by existing law.” However, as discussed below, “existing law” in asylum is in a state of constant flux. Moreover, 8 CFR 1003.102(j)(1), specifically states that a filing is not frivolous if the applicant has “a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and is not interposed for any improper purpose.” Under the proposed rule, an asylum seeker whose application would likely be denied under a restrictive interpretation of asylum by the Board of Immigration Appeals (BIA) or attorney general precedent, who intends to challenge that precedent in federal court, must risk a finding that would forever bar any immigration relief if that appeal is unsuccessful. A lowered threshold for frivolity findings also ignores the reality that many asylum applicants must navigate our complex asylum system while detained, proceeding pro se, or otherwise lacking adequate access to legal resources. Therefore, we oppose the proposal and urge the Departments to rescind this proposed rule.
Section B.2. Form I–589, Application for Asylum and for Withholding of Removal, Filing Requirements; Pretermission of Legally Insufficient Applications
The NPRM seeks to add a new section, 8 CFR § 1208.13(e), which would allow immigration judges to deny asylum to asylum seekers without even allowing them a hearing or chance to testify, if judges determine, on their initiative or at the request of a DHS attorney, that the application form does not adequately make a claim. We strongly oppose this proposal as it would deprive many applicants of the opportunity to fully supplement their I-589 application with evidence and live testimony through a typical asylum hearing.
Allowing judges to “pretermit” claims and deprive asylum seekers, many of whom do not have lawyers and do not speak English fluently, would deny them due process and would be an abrupt change from decades of precedent and practice before the immigration court. See Matter of Fefe 20 I&N Dec. 116, 118 (BIA 1989) (“In the ordinary course, however, we consider the full examination of an applicant to be an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.”). Many asylum seekers, especially those who are unrepresented and those who are detained, struggle to complete the twelve-page asylum application form at all. They may have to use unofficial translators with whom they fear sharing intimate details of their past or their present fears. Asylum seekers who are detained and do not speak English fluently may be unable to secure any assistance in filling out the application. And, in any event, asylum seekers are often not well-versed in the complexities of the U.S. asylum system and cannot be expected to lay out every element of their asylum claims in the application before arriving in court. Allowing immigration judges to deny asylum cases without taking any testimony or looking beyond the asylum application would inevitably lead to meritorious cases being denied and vulnerable asylum seekers being returned to harm.
At RILA, it often can take several meetings between the client and our legal team before we fully understand the harm a client suffered and why they suffered that harm. Asylum seekers are trauma survivors, and recounting their trauma is extraordinarily painful and difficult. Many of our clients have had to file their own I-589 forms pro se prior to finding legal assistance, and often were not aware of the intricacies of asylum law or the kinds of evidence necessary to support their claims in advance of submitting their applications. Moreover, an adequate examination of the persecution an asylum-seeker has suffered and his or her fear of returning home is impossible based solely on the limited responses afforded by the written application form. There is simply no defensible way a judge could make an informed decision, with any integrity, on the merits of an asylum application in the absence of hearing in-person testimony from the asylum seeker and full consideration of the evidence he or she presents.
Section C.1. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Membership in a Particular Social Group
Applicants for asylum and withholding of removal are legally required to demonstrate that the persecution they fear is on account of a protected characteristic: race, religion, nationality, membership in a particular social group (PSG), or political opinion. INA § 101(a)(42). Membership in a PSG in this list was designed to allow the refugee definition to be flexible and capture those who do not fall within the other listed characteristics. “The term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.” United Nations High Commissioner on Refugees (UNHCR) Guidelines On International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, May 7, 2002.
As the agency notes in the proposed rule, Congress did not define PSG in legislation, and it is inappropriate for the agency to codify a definition that is more restrictive than the clear congressional intent. Yet the proposed changes to the standards for consideration of eligibility for asylum seek to do just that, prohibiting a favorable adjudication of a PSG asylum claim based on issues unrelated to its cognizability, such as “presence in a country with generalized violence or a high crime rate”—restrictions that appear calculated to target individuals from Central American countries or Mexico. The Departments cannot, by regulation, issue blanket orders that whole classes of people are per se ineligible for asylum based on such elimination of certain PSGs; to do so would undercut the discretion that immigration judges and the BIA are to exercise in any given case. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). Furthermore, the proposed rule requires that an asylum seeker state with exactness every PSG before the immigration judge or forever lose the opportunity to present the PSG, even in the instance of receiving ineffective assistance of counsel. An asylum seeker’s life should not be dependent on an applicant’s ability to expertly craft arguments in the English language in a way that satisfies highly technical legal requirement. It would be unconscionable to send an applicant back to persecution for failure to adequately craft PSG language. Applying this proposed regulation to asylum seekers, including unrepresented individuals, would raise serious due process issues. Therefore, we oppose these proposals and request that the agencies not finalize them.
RILA provides immigration legal assistance in many cases where it is not immediately evident to which PSGs the client belongs, or which PSGs remain viable, until active preparation for the merits hearing. Often, this is due to the sheer amount of time and number of interviews required for an asylum seeker to be comfortable sharing his/her story, which often involves unspeakable loss and trauma. Other times, there are challenges in the gathering of evidence or intervening changes in asylum jurisprudence which affect the viability of a client’s initial PSG and require reformulation or elaboration of an alternative PSG. Adding additional legal barriers that are essentially impossible for an asylum seeker (particularly one who is pro se) to overcome would further erode due process rights and result in meritorious claims going unheard.
Section C.2. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Political Opinion
The proposed rule would redefine “political opinion” in contravention of existing law. Under the proposed definition, political opinion claims can only be based on “furtherance of a discrete cause related to political control of a state or a unit thereof.” The proposed rule goes on to explicitly reject the possibility that applicants’ expression of opposition to terrorist or gang organizations can qualify as a political opinion, unless the asylum seeker’s “expressive behavior” is “related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.” However, this restriction fails to recognize that many asylum seekers flee their homelands precisely because the government of their country is unable or unwilling to control non-state actors such as international criminal organizations.
This proposed re-reading of “political opinion” in the narrowest possible way contradicts existing case law, and will send many bona fide asylum seekers back to harm’s way. For example, women holding the political opinions that men do not have the right to rape them, or indigenous people who oppose international gangs taking their land would be barred from meeting the political opinion definition under this rule. Rather than following precedent that recognizes political opinion in such circumstances, the agencies seek to erase all precedent that is favorable to asylum seekers through this rule.
RILA represented a client who was granted asylum based on her imputed political opinion where the agent of persecution was not the government. The client was the victim of extortion by an international criminal gang, and she refused to comply with the gang’s demands. In response, the members of the gang raped her teenage daughter in her home and in the client’s presence. After her daughter was raped, the client and her daughter fled to the United States to seek asylum because they knew this gang would eventually kill them, as long as the client did not comply with their demands. The international criminal gang that extorted the client and raped the client’s daughter operates as a de facto government in the client’s home country, and they wield more authority and power than the official government. The client also knew that the police and government in her country were unwilling an unable and to protect her and her daughter. Serious, systemic levels of corruption in the client’s home country leave women and girls unprotected from gender-based violent crime. The client and her daughter were granted asylum in the United States, and they now have the opportunity to rebuild their lives and heal. If this proposed rule becomes final, women and girls, like this client and her daughter, would not be able to receive protection from imminent harm and death in their home countries.
Section C.3. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Persecution
The most fundamental aspect of asylum law is the obligation of countries to protect individuals with well-founded fears of persecution from being returned to harm. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428, (1987). The proposed rule would, for the first time, provide a regulatory definition of persecution—a definition that would unduly restrict what qualifies as persecution. The proposed rule emphasizes that the harm must be “extreme” and that threats must be “exigent.” However, the proposed rule fails to provide any guidance on adjudicating claims by children who may experience harm differently from adults. It also does not require adjudicators to consider cumulative harm. As a result, applicants who have suffered multiple “minor” beatings or multiple short detentions would likely be disqualified under the proposed rule.
RILA represents many children who have fled to the United States because they were persecuted in their home countries. Many of these children made the journey to the United States alone. Sometime they travel in groups, a 16-year-old, 14-year-old and 7-year-old. One of our clients traveled to the United States with an adult she barely knew, when she was 7 years old. The child’s mother and three older brothers were all murdered by an international criminal gang, and her father was living in the United States. She was orphaned in her home country, and she was in immediate danger from the gang members who killed her mother and brothers.
Another RILA client was kidnapped, along with her cousin by gang members. Her father tracked her down, located her and her brother, and rescued them. Later that day, gang members came to her house, dragged and brother outside and beat him. Her uncle and father intervened and the gang members fled. She and her cousin fled from her country that night. Even though she was not directly harmed, apart from being kidnapped, she knew her life was in immediate danger and is certain that she escaped death by leaving her country.
These are the journeys of last resort, when a child and/or a parent knows that harm and death are certain if they stay. The children that RILA represents are repeatedly threatened with harm by criminal gangs over a period of months; many are eventually beaten or raped. These children know the final outcome of these threats, which is why many of them flee before they are severely harmed. They know they will be beaten or killed if they stay because that is what happened to their friends. The stories of children’s lives cut short by criminal gangs permeate their communities and news outlets.
One RILA client had a son, and he was not able to leave in time. Her 12-year-old son was being aggressively recruited by a criminal gang, but her son refused the gang’s efforts. The client tried to protect him by keeping him in the house most of the time. However, when her son left the house one day, to buy a pair of shoes, he did not come home. His mother later found his body because the police were too afraid to help her look for him. She and her surviving three children fled to the United States to seek asylum soon after her son was murdered.
When a child is threatened with harm and death, repeatedly, over the course of weeks, months or even years, that child and his/her family live in a permanent state of fear and anxiety, which can have devastating and debilitating effects on a person’s mental, emotional and physical well-being. Furthermore, these threats are not empty, and at the opportune time, whether it be a matter of weeks or years, members of criminal gangs and organizations will follow through on their threats and do what they said they would do, especially when they operate with impunity and as de facto governing authorities in their respective countries.
Section C.4. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Nexus
While courts have long held that each asylum application should be adjudicated on a case-by-case basis, the proposed rule would allow blanket denials of claims that have long been found to meet the standard for asylum. This section of the proposed regulation would essentially direct adjudicators to deny most claims.
As a threshold matter, the proffering of a list of categories that cannot support a finding of nexus makes little sense, and improperly conflates nexus with the definition of the protected grounds. Nexus concerns whether a person is persecuted “on account of” their group—not the group itself. But by eliminating claims in specific “situations” under the guise of insufficient nexus, the proposed rule actually undercuts categories of protected grounds.
Moreover, the Departments’ proposal that certain types of harms be excised from the nexus analysis is confusing and divorced from the reality of persecution. For example, this section states that in general, asylum claims should be denied where there is: “(i) Interpersonal animus or retribution.” But asylum is defined as seeking to overcome a characteristic, so virtually all asylum involves “retribution,” a word that is generally synonymous with “punishment.
Also among the laundry list of harms that adjudicators generally should not consider in their nexus analysis is “criminal activity.” However, virtually all harm that rises to the level of persecution could be characterized as “criminal activity,” since in almost every country, beatings, rape, and threatened murder are considered criminalized activity. This blanket rule essentially eliminates the ability to grant asylum based on harm perpetrated by private actors.
The proposed rule would also effectively eliminate gender as a ground for asylum. Such a categorical denial of all cases where gender is part of the nexus is antithetical to the case-by-case analysis required under asylum law. Gender is similar to other protected characteristics like race and nationality, and adjudicators should determine on an individual basis whether the facts of a given case meet the standard. It is particularly important to maintain protection for gender-based asylum claims because, as is well-documented, women and girls around the world continue to be targeted, harmed, and killed precisely because they are female and there is no protection for them in their home countries. The rule contends that “pernicious cultural stereotypes — machismo as the example—have no place in the adjudication of applications for asylum and statutory withholding of removal.” But this provision conflates allegations of negative stereotypes with objective country conditions information. In doing so, it disparages the very submission of key corroborative evidence in support of gender-based claims, such as documentation of the prevalence of honor crimes, the practice of forced marriage, tolerance or encouragement within a society of punishing women through rape and violence. Indeed, it would require adjudicators to selectively ignore significant content in the very country conditions reports they are mandated to consult and apply.
Finally, the proposed rule runs contrary to INA § 208(b)(1)(B)(i), which specifically states that a protected ground must be “at least one central reason” for the harm. Federal courts have explicitly held that the “one central reason” continues to allow for a mixed motive analysis. If this rule is finalized in its current form, asylum seekers who have been harmed, or fear harm, for more than one reason— “retribution” and a protected characteristic—will not be afforded asylum protection in direct violation of the INA. Therefore, we urge the agencies not to finalize this proposed change.
RILA represents a client who hosted a radio show, in which she promoted anti-violence and anti-gang messages. She was intent on investing in her community to help make it a peaceful and a safe place, and the gang members in her community knew who she was and that she opposed them. She and her radio station received multiple threats from organized criminal groups. The police and government did nothing to protect her, even though she went to the police to ask for help. She, along with some of her colleagues were forced to flee from their home country to escape from the organized criminal groups that threatened her life.
A number of parents that RILA represents personally confronted the leaders of organized criminal groups to ask them to stop harassing, persecuting and harming their children. Parents resort to this dangerous action because the police and government refuse to help and protect them, be that because the police and government are afraid for their own safety, grossly under-resourced, or are co-conspirators with the criminal gangs and organizations.
One such client confronted the local leader of MS-13. His fourteen-year-old son was being recruited to join MS-13. His son avoided all confrontations with the gang but their attempt to recruit escalated to physical violence. To save his son’s life the father confronted the gang leader in a town square and demanded that he leave his son alone. As a result of this brazen act of desperation and defiance to gang authority the gang let the father know that his life was now in imminent danger. Without a governmental authority that can combat the gangs in his town, the father was forced to flee El Salvador with his son. The proposed rule would summarily dismiss this father’s claim because the gang threatened him as “retribution” for his act of bravery.
Section C.5. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Internal Relocation
The proposed rule lays out a standard for analyzing the reasonableness of internal relocation that almost no applicant for asylum, withholding of removal or Convention Against Torture (CAT) protection will be able to meet. Under the new rule, the adjudicator must take into consideration “the applicant’s demonstrated ability to relocate to the United States in order to apply for asylum.” 8 CFR § 208.13(3); 8 CFR § 1208.13(3). The clear implication of this language is that if an asylum seeker is able to travel to reach the U.S., any testimony about the unreasonableness of relocating within their country of origin can be discounted. However, this proposal disregards the fact that asylum seekers make the journey to the U.S. because they believe they will be safe here and do not trust their own government to protect them.
The proposed rule also implies that if an asylum seeker comes from a large country, or if the persecutor lacks “numerosity,” the applicant should be able to relocate internally. We strongly oppose this language. Asylum applications should be adjudicated on a case-by-case basis and the regulations should not suggest justifications to deny applications of bona fide asylum seekers.
Significantly, the new rule would remove important considerations that adjudicators must currently take into account. At present, adjudicators must consider numerous factors, including, “whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” Existing rule at 8 CFR § 208.13(3); 8 CFR § 1208.13(3). The new rule would force adjudicators to make decisions in a vacuum ignoring the overall context of an applicant’s plight.
If finalized, this proposal would also require the applicant to prove that they cannot reasonably relocate even if they have already suffered persecution if the persecutor is deemed “non-governmental.” 8 CFR § 208.13(3)(iv); 8 CFR § 1208.13(3)(iv). It is unfair to impose this greater evidentiary burden on asylum seekers who have already undergone persecution and proven that the government is unable or unwilling to protect them.
Section C.6. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Factors for Consideration in Discretionary Determinations
The Departments propose three specific factors that adjudicators must consider when determining whether an applicant merits the relief of asylum as a matter of discretion. In addition to meeting the legal standard, asylum seekers must merit a favorable exercise of discretion. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423, (1987). For decades, the United States has recognized the unique situation of asylum seekers and found that “the danger of persecution should generally outweigh all but the most egregious of adverse factors.” Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987). The proposed rule would turn on its head years of jurisprudence to deny most asylum applications on discretionary grounds and severely limit the actual discretion adjudicators exercise, and therefore we strongly oppose this proposal.
Under the proposed rule, any asylum seeker who enters or attempts to enter the United States without inspection could be denied asylum as a matter of discretion. Additionally, the rule would add another bar, preventing most refugees who spent 14 days in any country en route to the United States from qualifying for asylum. This change would conflict with the concept of firm resettlement, and would disqualify most asylum seekers who travel through Mexico where the administration blocks asylum seekers, forcing them to wait for months to request protection at ports of entry. These rules place asylum seekers in an impossible position where they will be denied asylum if they wait on the “metering” lists at a port of entry but will also be denied asylum if they cross the border in order to make their requests for protection.
The proposed rule would allow an immigration judge to deny asylum to a refugee who uses or attempts to use fraudulent documents to enter the United States, unless they are arriving to the United States directly from their country of origin. This punitive rule change would deny many legitimate asylum seekers the ability to seek protection. Often those fleeing harm are unable to obtain travel documents because they fear their government. In some countries, women cannot apply for passports unless a male family member signs off on the application. The safety of these asylum seekers would now depend on whether the individual was able to obtain a direct flight to the United States.
The proposed rule also contradicts the plain language of INA § 208(a)(2)(d), which explicitly allows an exception to the one year filing deadline for asylum based on changed or extraordinary circumstances by barring any asylum seeker who has been in the United States for more than one year without lawful status. This rule change ignores the fact that some individuals are in the United States for many years with no need to seek asylum until there is a changed circumstance in their country of origin or personal circumstances. Likewise, many asylum seekers are prevented by extraordinary circumstances, including mental health issues such as post-traumatic stress disorder often as a result of the persecution they have fled, from filing for asylum within one year of arriving in the United States. The administration cannot eliminate these vital exceptions to the one-year-filing deadline in the guise of “discretion.”
RILA represents clients who received an exception filling deadline due to changed or extraordinary and changed circumstances. One of these clients suffered severe trauma in her home country and on her journey to the United States. Upon receiving a psychological evaluation from a licensed mental health professional, it was determined that this client exhibited symptoms consistent with post-traumatic stress disorder (PTSD), which prevented her from finding legal help and applying for asylum within one year of entering the United States. The Immigration Judge found the client’s mental health issues, which largely resulted from the persecution she suffered in her home country, to constitute extraordinary circumstances and merit an exception to the one-year filing deadline.
PTSD, along with other mental health disorders, is a serious and debilitating condition, and its effects are well-documented in the mental health field. Removing the legal exceptions to the one-year filing deadline would result in countless genuine asylum claims being rejected on a basis that the asylum-seeker could not control or change. This would be contrary to years of established legal precedent, immoral, and completely contrary to the purpose of asylum.
Another RILA client who received an exception to the one-year filing deadline due to extraordinary and changed circumstances. This client originally, legally came to the United States to receive critical medical care as a result of being wounded in a war. While he was in the United States, political power shifted in his home country, and due to his political affiliation, his life would be in danger if he were to return to his home country. This client also suffered from severe physical disabilities as a result of his injuries sustained in his home country. He is confined to a wheelchair, suffers from chronic heart problems and cognitive impairments, especially his speech and memory. This client’s physical disabilities prevented him from applying for asylum within one year of when circumstances in his country changed. The Immigration Judge found that circumstances in his country changed, which put his life in danger based on his political opinion. The Immigration Judge also found that the client’s severe physical disabilities constituted extraordinary circumstances that prevented him from timely applying for asylum.
The exception to the one-year filing deadline is precisely for cases like this one, which is to provide a legal pathway to people with clear and genuine asylum claims, but were not able to apply within one year of entering the United States because 1) he did not need to apply for asylum within one year of entering the United States as he had no fear of returning to his home country until the political power shifted in his home country, and (2) he suffered from serious physical disabilities that prevented him from finding help and applying for asylum.
The proposed rule would further generally require denial of asylum applications if an asylum seeker did not file taxes prior to applying for asylum. Payment of taxes is in no way related to whether or not a person would suffer persecution in their home country. Moreover, many asylum seekers are forced to work in the informal economy because they are not eligible for work authorization, which the administration is even now further restricting, and may be unable to file taxes until they can obtain an employment authorization document and a social security number. Through recently published regulations, the administration has imposed further limitations on asylum seekers’ ability to obtain work authorization at all, and for those who do qualify, would make them wait for at least a year after filing for asylum to qualify for “asylum pending” work authorization. See 8 CFR 208.7(a)(1)(ii).
The proposed rule would make many of these “discretionary” bars practically mandatory, allowing for the possibility of a positive exercise of discretion only in narrow circumstances for reasons of national security or foreign policy interests, or, if the asylum seeker can show by a preponderance of the evidence that they would suffer exceptional and extremely unusual hardship if denied asylum. Even this extremely limited exception only applies to some of the “discretionary” factors. The combination of the heightened evidentiary standard and the intentionally onerous legal standard will mean that virtually no asylum seeker will be able to qualify for asylum as a matter of discretion. Therefore, we strongly oppose and urge the Departments not to finalize this proposal.
Section C.7. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Firm Resettlement
The Departments propose to redefine the definition of firm resettlement by specifying three circumstances under which an alien would be considered firmly resettled. Under the proposal, if the asylum seeker has resided in another country for a year or more, even if there is no offer or pathway to permanent status, the asylum seeker would be considered firmly resettled and barred from asylum. There is no exception based on the asylum seeker’s inability to leave the third country based on being trafficked, based on being unable to leave for financial reasons, or based on fear of remaining in the third country. Therefore, we oppose the revised definition and urge that it not be finalized.
Section C.8. Standards for Consideration During Review of an Application for Asylum or for Statutory Withholding of Removal; Rogue Officials
The proposed revisions to 8 CFR 208.18(a)(1), (7), would put protection under the CAT out of reach for the vast majority of individuals fleeing torture or the threat of torture. Under the proposed rule, an applicant would have to prove that a government official who has inflicted torture has done so “under color of law” and is not a “rogue official.” The regulation ignores the actual circumstances under which people flee for their lives. If an official claims to be acting in an official capacity, is wearing an official uniform, or otherwise makes it known to the applicant that they are a government official, a CAT applicant would have no reason to know whether the official is acting lawfully or as a “rogue” official. Requiring an applicant for protection to obtain this kind of detailed information from a government official who has tortured or threatened the applicant with torture is unreasonable and, in most cases, impossible.
RILA represents a young family that fled their home country because they were threatened by people whose government affiliation was ambiguous. The clients participated in protesting against the government, and, in response, the government violently cracked down on the protesters. In addition, the government began to use drones to surveil the neighborhood where the clients lived. One day, men in an unmarked car, who did not identify themselves as government or police followed them in their car to their home. The men came into their home and told them to stop opposing the government via social media, or they would face arrest, torture and death. These men did not identify as government officials, but they clearly were either acting on behalf of the government.
This proposed rule would deny justice and protection to families like this, who were clearly persecuted by their government on account of their political opinion, simply because their persecutors did not explicitly identify themselves as government officials. Genuine asylum seekers like this family, fleeing imminent harm and death at the hands of their governments, would be denied asylum because of this arbitrary proposed rule. This proposed rule is antithetical to justice.
Section A.1. Expedited Removal and Screenings in the Credible Fear Process; Asylum-and-Withholding-Only Proceedings 2 for Aliens With Credible Fear
Finally, the proposed rule would make it significantly more difficult for asylum seekers subject to expedited removal to have their request for asylum fully considered by an immigration judge. When Congress added expedited removal to the INA, it intentionally set the standard for the credible fear interview—significant possibility—low so that genuine refugees are not deported to persecution. Under this proposal, the government redefines the broad “significant possibility” standard to mean “a substantial and realistic possibility of succeeding.” This language contradicts the clear language of “significant possibility” that Congress set forth at INA § 235(b)(1)(B)(v) and is therefore ultra vires.
The proposed rule would also greatly increase the burden on those who would be eligible for only withholding of removal or protection under CAT to pass an initial interview and pursue their claim before an immigration judge. Under this proposal, asylum seekers who would be subject to a bar on asylum, presumably including those recently promulgated by the administration such as the “transit ban” found at 8 CFR § 208.13(c)(4)(ii) that bar the vast majority of asylum seekers arriving at the southern border, and would have to meet this significantly heightened requirement to even be permitted to have their case heard before an immigration judge. If finalized, the Departments would essentially eliminate the “significant possibility” legal standard adopted by Congress in the INA and replace it with a higher “reasonable possibility” standard, which is far more difficult for asylum seekers to meet.
We appreciate the opportunity to provide comments on the proposed rule and we respectfully request that the agencies withdraw these proposed rules and not finalize the proposals. Please contact Natalie Foote, RILA Executive Director if we can provide additional information or clarification on RILA’s comments.
Sincerely,
/s/ Natalie Foote, LCSW
President/CEO
Restoration Immigration Legal Aid
1815 North Quincy Street
Arlington, Virginia 22207