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DOJ/EOIR RIN: 1125-AB13 Publication ID: Fall 2021 
Title: Asylum and Withholding Definitions 
Abstract:

This rule proposes to amend Department of Homeland Security (DHS) and Department of Justice (DOJ) regulations that govern eligibility for asylum and withholding of removal. The amendments focus on portions of the regulations that deal with the definitions of membership in a particular social group, the requirements for failure of State protection, and determinations about whether persecution is on account of a protected ground.

This rule is consistent with Executive Order 14010 of February 2, 2021, which directs the Departments to, within 270 days, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a particular social group.

 
Agency: Department of Justice(DOJ)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Undetermined  Unfunded Mandates: No 
CFR Citation: 8 CFR 2    8 CFR 208    8 CFR 1208   
Legal Authority: 8 U.S.C. 1101(a)(42)    8 U.S.C. 1158    8 U.S.C. 1225    8 U.S.C. 1231 and 1231 note    Executive Order 14010, 86 FR 8267 (Feb. 2, 2021)   
Legal Deadline:  None

Statement of Need:

This rule provides guidance on a number of key interpretive issues of the refugee definition used by adjudicators deciding asylum and withholding of removal (withholding) claims. The interpretive issues include whether persecution is inflicted on account of a protected ground, the requirements for establishing the failure of State protection, and the parameters for defining membership in a particular social group. This rule will aid in the adjudication of claims made by applicants whose claims fall outside of the rubric of the protected grounds of race, religion, nationality, or political opinion. One example of such claims which often fall within the particular social group ground concerns people who have suffered or fear domestic violence. This rule is expected to consolidate issues raised in a proposed rule in 2000 and to address issues that have developed since the publication of the proposed rule. This rule should provide greater stability and clarity in this important area of the law. This rule will also provide guidance to the following adjudicators: USCIS asylum officers, Department of Justice Executive Office for Immigration Review (EOIR) immigration judges, and members of the EOIR Board of Immigration Appeals (BIA).

Furthermore, on February 2, 2021, President Biden issued Executive Order 14010 that directs DOJ and DHS within 270 days of the date of this order, [to] promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a "particular social group," as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Summary of the Legal Basis:

The purpose of this rule is to provide guidance on certain issues that have arisen in the context of asylum and withholding adjudications. The 1951 Geneva Convention relating to the Status of Refugees contains the internationally accepted definition of a refugee. United States immigration law incorporates an almost identical definition of a refugee as a person outside his or her country of origin "who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 101(a)(42) of the Immigration and Nationality Act.

Alternatives:

Because this rulemaking is mandated by executive order to be completed within a short timeframe, there are no feasible alternatives at this time.

Anticipated Costs and Benefits:

DOJ and DHS are currently considering the specific cost and benefit impacts of the proposed provisions.

Risks:

Without this rulemaking, the circumstances by which a person is considered a member of a particular social group will continue to be subject to judicial and agency interpretation, which may differ by circuit and changes in administration.

Timetable:
Action Date FR Cite
NPRM  11/00/2021 
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: Undetermined 
Federalism: Undetermined 
Included in the Regulatory Plan: Yes 
International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
RIN Information URL: http://www.regulations.gov   Public Comment URL: http://www.regulations.gov  
RIN Data Printed in the FR: No 
Related RINs: Related to 1125-AA94, Related to 1615-AC65, Related to 1615-AC42  Related Agencies: Joint: DHS/USCIS; 
Agency Contact:
Lauren Alder Reid
Assistant Director, Office of Policy, Executive Office for Immigration Review
Department of Justice
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 1800,
Falls Church, VA 22041
Phone:703 305-0289
Email: pao.eoir@usdoj.gov