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  • News: DOJ Publishes Notice On Forwarding of Asylum Applications to DOS

    Federal Register, Volume 78 Issue 61 (Friday, March 29, 2013)
    [Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
    [Rules and Regulations]
    [Pages 19077-19080]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2013-07252]
    
    
    
    ========================================================================
    Rules and Regulations
                                                    Federal Register
    ________________________________________________________________________
    
    This section of the FEDERAL REGISTER contains regulatory documents 
    having general applicability and legal effect, most of which are keyed 
    to and codified in the Code of Federal Regulations, which is published 
    under 50 titles pursuant to 44 U.S.C. 1510.
    
    The Code of Federal Regulations is sold by the Superintendent of Documents. 
    Prices of new books are listed in the first FEDERAL REGISTER issue of each 
    week.
    
    ========================================================================
    
    
    Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules 
    and Regulations
    
    [[Page 19077]]
    
    
    
    DEPARTMENT OF JUSTICE
    
    Executive Office for Immigration Review
    
    8 CFR Parts 1208 and 1240
    
    [EOIR Docket No. 173; AG Order No. 3375-2013]
    RIN 1125-AA65
    
    
    Forwarding of Asylum Applications to the Department of State
    
    AGENCY: Executive Office for Immigration Review, Department of Justice.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule adopts without substantive change the proposed 
    rule with request for comments published in the Federal Register on 
    October 31, 2011, and includes several non-substantive, technical 
    corrections. The Department of Justice (Department) is amending its 
    regulations to alter the process by which the Executive Office for 
    Immigration Review (EOIR) forwards asylum applications for 
    consideration by the Department of State (DOS), Bureau of Democracy, 
    Human Rights, and Labor. Currently, EOIR forwards to DOS all asylum 
    applications that are submitted initially in removal proceedings before 
    an immigration judge. The final rule amends the regulations to provide 
    for sending asylum applications to DOS on a discretionary basis. For 
    example, EOIR may forward an application in order to ascertain whether 
    DOS has information relevant to the applicant's eligibility for asylum. 
    This change increases the efficiency of DOS' review of asylum 
    applications and is consistent with similar changes already made by 
    U.S. Citizenship and Immigration Services (USCIS), Department of 
    Homeland Security (DHS).
    
    DATES: This rule is effective April 29, 2013.
    
    FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel, 
    Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
    2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free 
    call).
    
    SUPPLEMENTARY INFORMATION: 
    
    I. Public Participation
    
        On October 31, 2011, the Department published in the Federal 
    Register a rule proposing to amend EOIR's regulations by removing the 
    mandatory submission of all asylum applications to DOS. See 76 FR 67099 
    (Oct. 31, 2011). The comment period ended December 30, 2011. The 
    Department received three public comments. As explained below, the 
    Department is adopting all amendments in the proposed rule, as well as 
    making several non-substantive, technical corrections.
    
    II. Background
    
        The current regulations require that EOIR send a copy of all 
    defensive asylum applications to DOS.\1\ The Department is amending the 
    regulations at 8 CFR 1208.11, 1240.11, 1240.33, and 1240.49 in order to 
    remove this mandatory requirement. Under this rule, an immigration 
    court has the discretion to forward a defensively filed asylum 
    application to DOS, but is not required to do so. For example, EOIR may 
    forward an application in order to ascertain whether DOS has 
    information relevant to the adjudication of a particular case or type 
    of claims. By consolidating certain paragraphs, the final rule also 
    removes redundant references to the types of information that DOS may 
    provide to EOIR. These amendments increase the efficiency of DOS' 
    review of asylum applications and are consistent with similar changes 
    USCIS has already made. See 74 FR 15367 (Apr. 6, 2009).
    ---------------------------------------------------------------------------
    
        \1\ EOIR receives and adjudicates asylum applications submitted 
    directly to the immigration judge (known as defensive asylum 
    applications) and those that are referred for consideration in 
    proceedings before an immigration judge after initially being 
    adjudicated through DHS USCIS' affirmative asylum process (known as 
    affirmative asylum applications). We note that the regulations at 8 
    CFR 1208.1(a)(1) provide, in part, that subpart A of part 1208 
    ``shall apply to all applications for asylum under section 208 of 
    the Immigration and Nationality Act (Act) or for withholding of 
    deportation or withholding of removal under section 241(b)(3) of the 
    Act, or under the Convention Against Torture.'' Thus, the terms 
    ``asylum application'' or ``application for asylum,'' as used in the 
    current regulations and in this final rule, refer to an application 
    for: (1) Asylum under section 208 of the Act; (2) withholding of 
    removal under section 241(b)(3) of the Act; (3) withholding or 
    deferral of removal under the Convention Against Torture as provided 
    in 8 CFR 1208.16 and 1208.17; and (4) withholding of deportation 
    under former section 243(h) of the Act.
    ---------------------------------------------------------------------------
    
        EOIR's changes to the regulations do not require additional 
    resources, either in the hiring of personnel at EOIR or DOS or in the 
    expenditure of material or financial resources. Amending the 
    regulations permits both EOIR and DOS to conserve resources. EOIR will 
    no longer be required to expend resources on mailing to DOS every 
    properly filed defensive asylum application it receives. Rather, an 
    immigration judge may request, in his or her discretion, specific 
    comments from DOS regarding individual cases or types of claims under 
    consideration, or other information the immigration judge deems 
    appropriate. By focusing on select cases forwarded by EOIR, DOS 
    officers can better utilize their time and resources toward 
    accomplishing their asylum responsibilities. These regulatory changes 
    will also result in resource savings for asylum applicants, as an 
    applicant will no longer be required to make an extra copy of his or 
    her application for EOIR to forward to DOS, pursuant to current 
    instructions to the Form I-589, Application for Asylum and for 
    Withholding of Removal.
        Under this rule, the types of comments that DOS may provide will 
    not change. At its option, DOS may provide detailed country conditions 
    information relevant to the applicant's eligibility for asylum and 
    withholding of removal. DOS may also provide an assessment of the 
    accuracy of the applicant's assertions about conditions in the 
    applicant's country of nationality or habitual residence and the 
    applicant's particular situation, information about whether persons who 
    are similarly situated to the applicant are persecuted or tortured in 
    the applicant's country of nationality or habitual residence and the 
    frequency of such persecution or torture, or such other information as 
    DOS deems relevant.
        Additionally, these regulatory amendments are consistent with 
    changes effected by implementation of the Homeland Security Act of 
    2002. The Homeland Security Act authorized the
    
    [[Page 19078]]
    
    creation of DHS and transferred the functions of the former Immigration 
    and Naturalization Service (INS) to DHS, while retaining EOIR under the 
    authority of the Attorney General. In order to accommodate these 
    changes, title 8 of the Code of Federal Regulations was reorganized 
    into separate chapters, chapter I for DHS and chapter V for the 
    Department of Justice. See 68 FR 9824, 9834 (Feb. 28, 2003). The 
    provisions governing procedures for asylum and withholding of removal 
    in part 208 were duplicated into a new part 1208. As a result, part 208 
    governs asylum adjudications before DHS's USCIS and part 1208 governs 
    asylum adjudications before EOIR. As this final rule only addresses 
    submissions of asylum applications from EOIR to DOS, it is limited to 
    amending 8 CFR 1208.11, 1240.11, 1240.33, and 1240.49. To be consistent 
    with changes that effected implementation of the Homeland Security Act, 
    references in EOIR's regulations to ``The Service'' and USCIS ``asylum 
    officers'' forwarding asylum applications to DOS are removed, as those 
    matters are now governed by the DHS regulations at 8 CFR 208.11.
    
    III. Technical Corrections
    
        This rule also includes several technical corrections. The 
    regulations currently refer to 8 U.S.C. 1101 and Title VII of Public 
    Law 110-229 as authority for 8 CFR part 1208. The proposed rule that 
    was published on October 31, 2011, inadvertently omitted citations to 8 
    U.S.C. 1101 and Title VII of Public Law 110-229 in the authority 
    section of 8 CFR part 1208. The proposed rule did not intend to remove 
    those references. This final rule corrects these typographical 
    omissions and includes citations to 8 U.S.C. 1101 and Title VII of 
    Public Law 110-229 in the authority section of 8 CFR part 1208. The 
    regulations currently refer to 8 U.S.C. 1224, 1251, 1252a, 1228 as 
    authority for 8 CFR part 1240, but 8 U.S.C. 1224 is no longer directly 
    applicable to part 1240 following the creation of DHS and related 
    changes in the regulations. Sections 1251 and 1252a have been 
    transferred to 8 U.S.C. 1227 and 1228, respectively, and 8 U.S.C. 1252b 
    has been repealed. Additionally, the regulations currently do not 
    include the following authorities, which are applicable to part 1240: 8 
    U.S.C. 1158, 1186b, 1229a, 1229b, 1229c, and 1361. This final rule 
    updates the authority for 8 CFR part 1240 to reflect these changes. 
    This final rule also includes two minor, non-substantive changes to 8 
    CFR 1208.11(a): Deleting the words ``such'' and ``as an'' and inserting 
    the word ``the'' before ``immigration judge.'' Additionally, 8 CFR 
    1208.11(b)(3) is revised to duplicate 8 CFR 208.11(b)(3) by deleting 
    the words ``their respective'' and inserting the words ``the 
    applicant's.'' 8 CFR 1208.11(c) is also revised to change the word 
    ``the'' to the word ``an'' before ``applicable Executive Order.'' The 
    regulations at 8 CFR 1240.11(c)(2), 1240.33(b), and 1240.49(c)(3) are 
    also revised to change the word ``the'' to the word ``an'' before 
    ``applicable Executive Order.'' As announced in the proposed rule, the 
    Department is also amending part 1240 to cite to the correct regulatory 
    provision regarding filing of an asylum application as provided in 8 
    CFR 1208.4(b). The regulations at 8 CFR 1240.11(c)(2) and 8 CFR 
    1240.33(b) are corrected to cite to 8 CFR 1208.4(b). This change is 
    consistent with 8 CFR 1240.49(c)(3). These amendments are technical 
    corrections and do not make any substantive changes to parts 1208 and 
    1240.
    
    IV. Responses to Comments
    
        The Department of Justice provided an opportunity for comment, 
    which ended on December 30, 2011. The Department received three 
    comments: One from an anonymous individual; one from a candidate for a 
    Master of Social Work degree; and one from a candidate for a juris 
    doctor degree. The Department considered these comments in preparing 
    this final rule. The comments are numbered one through three in order 
    of receipt. All comments and other docket materials are available for 
    viewing by making arrangements with the EOIR Office of the General 
    Counsel as discussed above.
        The first comment is general in nature and expresses the view that 
    the United States should withdraw from its international protection 
    obligations towards applicants for asylum and withholding of removal 
    and should, instead, impose a general immigration moratorium. As this 
    comment does not address the changes set forth in the proposed rule, 
    the comment does not require a response.
        The second commenter supports this rulemaking initiative. The 
    commenter notes that while the DOS serves as an informational resource 
    tool for immigration judges, the information provided by DOS is not 
    normally dispositive of the outcome of a given case. This commenter 
    recognizes EOIR's proposed regulatory changes will allow both the 
    Department and the DOS to utilize DOS as an information resource and 
    ``not as a storage locker for thousands of filed defensive 
    applications; many of which they are unable to review in a reasonably 
    timely manner.'' The commenter also expresses concern that the existing 
    regulatory construct requiring DOS mandatory review of all defensive 
    asylum and withholding applications filed with EOIR creates system 
    inefficiencies, duplication of effort, and delays that may 
    inadvertently extend the time an asylum applicant must remain in 
    immigration detention during his or her immigration proceedings before 
    EOIR. The commenter notes that the efficiencies to be gained by these 
    regulatory changes outweigh possible negative considerations. Finally, 
    the commenter notes that the direct and indirect cost savings to the 
    government agencies directly affected by the regulation, as well as the 
    cost savings to the public, allow for ``a redirecting of tax dollars to 
    other areas in need.'' The Department agrees with this commenter that 
    the proposed regulatory changes will make the DOS asylum application 
    review process more economical and efficient.
        The third commenter opposes this rulemaking initiative. The 
    commenter asserts that the proposed cost savings do not outweigh the 
    possible harm to defensive asylum and withholding applicants. This 
    commenter views the mandatory submission to DOS of all defensively 
    received applications for asylum and withholding of removal as a 
    safeguard against possible abuses of discretion by immigration judges 
    making credibility determinations on asylum applicants' protection 
    claims. The commenter notes that asylum applicants often suffer from 
    some form of post-traumatic stress or depression that affects long-term 
    memory, making credibility determinations very difficult and prone to 
    error. The commenter further notes that DOS' cultural and country 
    condition information may safeguard against immigration judges making 
    incorrect adverse credibility determinations based upon asylum 
    applicants' behavior and information that does not easily transfer 
    across cultures.
        The Department appreciates this commenter's concerns. However, EOIR 
    provides training to its adjudicators on cultural sensitivity and makes 
    available numerous resources on country condition information, which 
    more directly address the commenter's concerns. Moreover, continuing 
    the current mandatory submission of all defensively filed asylum and 
    withholding applications is not sustainable. DOS is tasked with 
    numerous reporting and country condition responsibilities. DOS' review 
    and comment on defensive asylum and
    
    [[Page 19079]]
    
    withholding applications is a small part of its overall mission. 
    Revising the regulations to allow for immigration judges to exercise 
    their discretion to request DOS review and comment on specific 
    protection claims will allow DOS to better focus its limited resources. 
    The existing process is neither efficient nor efficacious in producing 
    the results originally contemplated by the regulation. In a time of 
    dwindling resources, both human and monetary, the Department has 
    determined that it is best to amend the regulations to provide 
    immigration judges with the discretion to determine when and for which 
    cases to seek DOS review. The final rule also provides DOS with the 
    ability to focus its resources on providing review and comment for the 
    cases that immigration judges have identified as most in need of DOS' 
    expertise. Additionally, DOS is required to provide to Congress 
    annually Country Reports on Human Rights Practices and International 
    Religious Freedom Reports, which provide world-wide country conditions 
    information that continue to be useful to the adjudication of asylum 
    applications. This rule does not alter these DOS responsibilities, nor 
    affect how immigration judges utilize these DOS country condition 
    resources.
        Accordingly, the Department is adopting as a final rule the 
    proposed rule amending 8 CFR parts 1208 and 1240 that was published on 
    October 31, 2011, including the non-substantive, technical corrections 
    discussed in this rule.
    
    V. Regulatory Requirements
    
    A. Regulatory Flexibility Act
    
        The Department has reviewed this regulation in accordance with the 
    Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
    this rule will not have a significant economic impact on a substantial 
    number of small entities for the following reason: This rule affects 
    only the process by which EOIR forwards and DOS receives asylum 
    applications. The rule will not regulate ``small entities'' as that 
    term is defined in 5 U.S.C. 601(6).
    
    B. Unfunded Mandates Reform Act of 1995
    
        This rule will not result in the expenditure by state, local and 
    tribal governments, in the aggregate, or by the private sector, of $100 
    million or more in any one year, and it will not significantly or 
    uniquely affect small governments. Therefore, no actions were deemed 
    necessary under the provisions of the Unfunded Mandates Reform Act of 
    1995.
    
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined by section 251 of the 
    Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
    804. 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 the United States-based 
    companies to compete with foreign-based companies in domestic and 
    export markets.
    
    D. Executive Orders 12866 and 13563
    
        The Department has determined that this rule is not a ``significant 
    regulatory action'' under Executive Order 12866, section 3(f), 
    Regulatory Planning and Review, and Executive Order 13563. Accordingly, 
    this rule has not been submitted to the Office of Management and Budget 
    for review. Nevertheless, the Department certifies that this regulation 
    has been drafted in accordance with the principles of Executive Order 
    12866, section 1(b), and Executive Order 13563.
    
    E. Executive Order 13132: Federalism
    
        This rule will not have substantial direct effects on the States, 
    on the relationship between the National Government and the States, or 
    on the distribution of power and responsibilities among the various 
    levels of government. Therefore, in accordance with section 6 of 
    Executive Order 13132, it is determined that this rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
    F. Executive Order 12988: Civil Justice Reform
    
        This rule meets the applicable standards set forth in sections 3(a) 
    and 3(b)(2) of Executive Order 12988.
    
    G. Paperwork Reduction Act
    
        The provisions of the Paperwork Reduction Act of 1995, Public Law 
    104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
    part 1320, apply to this rule. The information collection requirement 
    (Form I-589, Application for Asylum and for Withholding of Removal) 
    discussed in this rule has been previously approved by the Office of 
    Management and Budget (OMB. No. 1615-0067) as provided by the Paperwork 
    Reduction Act. This rule will require revisions to the existing 
    information collection. The Form I-589 instructions will be revised to 
    reduce the number of form copies that must be submitted by applicants 
    on and after the effective date of these regulations. Once a final rule 
    is issued, EOIR and USCIS will work to modify the instructions to the 
    Form I-589 to reflect the changes.
    
    List of Subjects
    
    8 CFR Part 1208
    
        Administrative practice and procedure, Aliens, Immigration, 
    Reporting and recordkeeping requirements.
    
    8 CFR Part 1240
    
        Administrative practice and procedure, Aliens.
    
        Accordingly, for the reasons set forth in the preamble, part 1208 
    and part 1240 of chapter V of title 8 of the Code of Federal 
    Regulations are amended as follows:
    
    PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
    
    0
    1. The authority citation for part 1208 continues to read as follows:
    
        Authority:  8 U.S.C. 1101, 1103, 1158, 1225, 1231, 1282; Title 
    VII of Public Law 110-229.
    
    0
    2. Revise Sec.  1208.11 to read as follows:
    
    
    Sec.  1208.11  Comments from the Department of State.
    
        (a) The immigration judge may request, in his or her discretion, 
    specific comments from the Department of State regarding individual 
    cases or types of claims under consideration, or other information the 
    immigration judge deems appropriate.
        (b) With respect to any asylum application, the Department of State 
    may provide, at its discretion, to the Immigration Court:
        (1) Detailed country conditions information relevant to eligibility 
    for asylum, withholding of removal under section 241(b)(3) of the Act, 
    and withholding of removal under the Convention Against Torture;
        (2) An assessment of the accuracy of the applicant's assertions 
    about conditions in the applicant's country of nationality or habitual 
    residence and the applicant's particular situation;
        (3) Information about whether persons who are similarly situated to 
    the applicant are persecuted or tortured in the applicant's country of 
    nationality or habitual residence and the frequency of such persecution 
    or torture; or
        (4) Such other information as it deems relevant.
    
    [[Page 19080]]
    
        (c) Any comments received pursuant to paragraph (b) of this section 
    shall be made part of the record. Unless the comments are classified 
    under an applicable Executive Order, the applicant shall be provided an 
    opportunity to review and respond to such comments prior to the 
    issuance of any decision to deny the application.
    
    PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
    UNITED STATES
    
    0
    3. The authority citation for part 1240 is revised to read as follows:
    
        Authority:  8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 
    1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 
    and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 
    105-277 (112 Stat. 2681).
    
    0
    4. Amend Sec.  1240.11 by revising paragraph (c)(2) to read as follows:
    
    
    Sec.  1240.11  Ancillary matters, applications.
    
    * * * * *
        (c) * * *
        (2) An application for asylum or withholding of removal must be 
    filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
    chapter. Upon receipt of an application, the Immigration Court may 
    forward a copy to the Department of State pursuant to Sec.  1208.11 of 
    this chapter and shall calendar the case for a hearing. The reply, if 
    any, from the Department of State, unless classified under an 
    applicable Executive Order, shall be given to both the alien and to DHS 
    counsel and shall be included in the record.
    * * * * *
    
    0
    5. Amend Sec.  1240.33 by revising paragraph (b) to read as follows:
    
    
    Sec.  1240.33  Applications for asylum or withholding of deportation.
    
    * * * * *
        (b) An application for asylum or withholding of deportation must be 
    filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
    chapter. Upon receipt of an application, the Immigration Court may 
    forward a copy to the Department of State pursuant to Sec.  1208.11 of 
    this chapter and shall calendar the case for a hearing. The reply, if 
    any, from the Department of State, unless classified under an 
    applicable Executive Order, shall be given to both the applicant and to 
    DHS counsel and shall be included in the record.
    * * * * *
    
    0
    6. Amend Sec.  1240.49 by revising paragraph (c)(3) to read as follows:
    
    
    Sec.  1240.49  Ancillary matters, applications.
    
    * * * * *
        (c) * * *
        (3) An application for asylum or withholding of deportation must be 
    filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
    chapter. Upon receipt of an application, the Immigration Court may 
    forward a copy to the Department of State pursuant to Sec.  1208.11 of 
    this chapter and shall calendar the case for a hearing. The reply, if 
    any, of the Department of State, unless classified under an applicable 
    Executive Order, shall be given to both the applicant and to DHS 
    counsel and shall be included in the record.
    * * * * *
    
        Dated: March 22, 2013.
    Eric H. Holder, Jr.,
    Attorney General.
    [FR Doc. 2013-07252 Filed 3-28-13; 8:45 am]
    BILLING CODE 4410-30-P
    
    
    
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