The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal

The Department of Justice and the Department of Homeland Security (collectively, the Departments) submitted to the Federal Register for publication a notice of proposed rulemaking (NPRM) that would amend multiple provisions of the Departments’ regulations to create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.  The NPRM is now available for public inspection and is expected to publish in the Federal Register in the near future.

The NPRM proposes to make the following changes to the Departments’ regulations:

• Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA);
• Permit immigration judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief;
• Clarify when an application is “frivolous”;
• Clarify standards for the adjudication of asylum and withholding claims including amendments to the definitions of the terms “particular social group,” “political opinion,” “persecution,” and “firm resettlement”;
• Outline factors for adjudicators to consider when making discretionary determinations;
• Clarify the standard for determining the acquiescence of a public official or other person acting in an official capacity under the CAT regulations;
• Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard;
• Apply bars to asylum and withholding when making credible fear determinations; and
• Clarify the requirement to protect certain information contained in asylum applications.

Overall, the NPRM, consistent with the INA, would allow the Departments to more effectively separate baseless claims from meritorious ones.  This would better ensure groundless claims do not delay or divert resources from deserving claims.  The Departments will consider written comments regarding the NPRM that are submitted per the instructions in the publication.