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]



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Rules and Regulations
Federal Register
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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]
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