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The Department of Homeland Security (DHS”) and the Department of Justice (DOJ”) will jointly propose amendments to asylum procedures in response to the growing affirmative and defensive asylum backlogs. The amendments are intended to tackle frivolousness in the asylum caseload and increase processing efficiencies for both DHS and DOJ in processing asylum cases. In addition, the rule will propose amendments to the reasonable fear determination process to reflect operational realities in processing these requests.

Statement of Need:

The reforms that will be proposed by DHS aim to respond to the growing affirmative and defensive asylum backlogs which are, in part, caused by the influx of inadmissible aliens along the Southwest Border. The proposed changes seek to reduce the strain on DHS resources by deterring aliens from filing frivolous asylum applications and more efficiently resolving asylum applications for aliens who are barred from applying for asylum. Additionally, the proposed change related to reasonable fear determinations is intended to take into account the operational realities that DHS regularly faces with regard to the processing of reasonable fear cases while upholding U.S. treaty obligations and law preventing the return of aliens to a country in which they would be persecuted or tortured.

Summary of the Legal Basis:

The Attorney General and the Acting Secretary of Homeland Security will publish this joint notice of proposed rulemaking in the exercise of their respective authorities concerning asylum applications and reasonable fear determinations. The Homeland Security Act of 2002, Pub. L. 107-296, as amended (HSA), charged the Secretary of Homeland Security with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens and granted the Secretary the power to take all actions necessary for carrying out the provisions of the immigration and nationality laws. 8 U.S.C. 1103(a)(1), (a)(3). The Act also states that the Attorney General shall have such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review . . . 8 U.S.C. 1103(g)(1); see 6 U.S.C. 521. Furthermore, the Attorney General is charged with establishing such regulations, prescribe such forms of bonds, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section. 8 U.S.C. 1103(g)(2).

Furthermore, section 208 of the INA provides the authority for asylum officers and immigration judges to consider whether an alien is eligible for asylum, including whether the alien is barred from applying for asylum and whether the alien has knowingly made a frivolous application.  See INA 208(a), (b), (d)(6); 8 USC 1158(a), (b), (d)(6).  Additionally, the INA provides authority to provide notice regarding what may be a frivolous asylum application. INA 208(d)(4); 8 USC 1158(d)(4).  The Foreign Affairs Reform and Restructuring Act of 1998 authorizes the Departments to promulgate regulations related to the implementation of U.S. obligations under the Convention Against Torture, and led to the establishment of the reasonable fear determination process.  See Pub. L. 105-277, 112 Stat. 2681, 2681-822; 8 USC 1231.  Reasonable fear screening also provides regulatory authority for screening for withholding of removal pursuant to INA 241(b)(3); 8 USC 1231(b)(3); and see Regulations Concerning the Convention Against Torture, 64 FR 8493 (1999) (Similar to the credible fear screening process, 208.31 is intended to provide for the fair resolution of claims both to withholding under section 241(b)(3) of the Act, and to protection under the Convention Against Torture without unduly disrupting the operation of these special administrative removal processes).

Alternatives:

Anticipated Costs and Benefits:

DHS is still considering the exact cost and benefit impacts of the proposed provisions. In general, DHS anticipates that there may be some impacts on the processing of asylum applications and reasonable fear determinations.

Risks: