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On December 16, 2020, by the rule titled Procedures for Asylum and Withholding of Removal (RIN 1125-AA93) the Department of Justice (Department) amended the regulations governing asylum and withholding of removal, including changes to what must be included with an application for it to be considered complete and the consequences of filing an incomplete application, and changes related to the 180-day asylum adjudications clock. To revise the regulations related to adjudicatory procedures for asylum and withholding of removal, the Department is planning to rescind or modify the regulatory revisions made by that rule under this RIN.

Statement of Need:

This proposed rule will revise the regulations related to adjudicatory procedures for asylum and withholding of removal. On December 16, 2020, the Department of Justice (Department) amended the regulations governing asylum and withholding of removal, including changes to what must be included with an application for it to be considered complete and the consequences of filing an incomplete application, and changes related to the 180-day asylum adjudications clock. Procedures for Asylum and Withholding of Removal, 85 FR 81698 (RIN 1125-AA93). In light of Executive Orders 14010 and 14012, 86 FR 8267 (Feb. 2, 2021) and 86 FR 8277 (Feb. 2, 2021), the Department reconsidered its position on those matters and now issues this proposed rule to revise the regulations accordingly. 

Summary of the Legal Basis:

The Attorney General has general authority under 8 U.S.C. 1103(g) to establish regulations related to the immigration and naturalization of noncitizens. More specifically, under 8 U.S.C. 1158(d)(5)(B), the Attorney General has authority to provide by regulation additional conditions and limitations consistent with the INA for the consideration of asylum applications. Thus, this proposed rule utilizes such authority to propose revisions to the regulations related to adjudicatory procedures for asylum and withholding of removal pursuant, in part, to 8 U.S.C. 1229a(c)(4)(B). 

Alternatives:

Unless the Department relies on litigation to permanently enjoin the December 2020 rule, 85 FR 81698 (Dec. 16, 2020), there are no other alternatives to revise the regulations. Relying on litigation could be extremely time-burdensome and may introduce confusion as to effectiveness of the regulations. Thus, the Department considers this alternative to be an inadequate and inadvisable course of action.

Anticipated Costs and Benefits:

The Department believes this proposed rule will not be economically significant. The Department believes the costs to the public will be negligible, if any, given that costs will revert to those established prior to the December 2020 rule. This proposed rule imposes no new additional costs to the Department or to respondents: respondents have always been required to submit complete asylum applications in order to have them adjudicated, and immigration judges have always maintained the authority to set deadlines. In addition, this proposed rule proposes no new fees. The Department believes that this proposed rule would impose only minimal, if any, direct costs on the public. Any new minimal cost would be limited to the cost of the public familiarizing itself with proposed rule, although, as previously stated, the proposed rule reinstates most of the regulatory language to that which was in effect before the December 2020 rule. Further, an immigration judge's ability to set filing deadlines is already established by regulation, and filing deadlines for both applications and supporting documents are already well-established aspects of immigration court proceedings guided by regulations and the OCIJ Practice Manual. Thus, the Department expects little in the proposed rule to require extensive familiarization.

Risks:

Without this rulemaking, the regulations will remain enjoined pending litigation (as described in the Alternatives section). This is inadvisable, as litigation typically takes an inordinate time to resolve. The Department highly prefers proactively addressing the regulations through this proposed rule.