View Rule

In 2020, the Department of Homeland Security and Department of Justice (collectively, "the Departments") published final rules amending their respective regulations governing bars to asylum eligibility and procedures, including the Procedures for Asylum and Bars to Asylum Eligibility (RINs 1125-AA87 and 1615-AC41), 85 FR 67202 (Oct. 21, 2020), and Asylum Eligibility and Procedural Modifications (RINs 1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17, 2020), final rules. The Departments propose to modify or rescind the regulatory changes promulgated in these two final rules, consistent with Executive Order 14010 (Feb. 2, 2021).

Statement of Need:

The Departments are reviewing these regulations in light of the issuance of Executive Order 14010 and Executive Order 14012. This rule is needed to restore and strengthen the asylum system and to address inconsistencies with the goals and principles outlined in the Executive Order 14010 and Executive Order 14012.

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(b)(2)(C) and (d)(5)(B), the Attorney General has authority to provide by regulation additional conditions and limitations consistent with the INA for asylum eligibility. Thus, this proposed rule utilizes such authority to propose revisions to the regulations related to processing procedures for asylum and withholding of removal claims. 

Alternatives:

Unless the Departments rely on the pending litigation to enjoin Asylum and Bars to Asylum Eligibility, 85 FR 67202, and Asylum Eligibility and Procedural Modifications, 85 FR 82260, there are no feasible alternatives to revising those two rules. Relying on litigation to address these rules could be extremely time-consuming and may introduce confusion as to whether the regulations remain in effect. Thus, the Departments consider this alternative to be a burdensome and inadvisable course of action and, therefore, not feasible.

Anticipated Costs and Benefits:

The Departments are currently considering the specific cost and benefit impacts of the proposed provisions.

Risks:

Without this rulemaking, regulations related to Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202, and Asylum Eligibility and Procedural Modifications, 85 FR 82260, will remain enjoined pending litigation. This is inadvisable, as litigation typically takes much time to conclude. Thus, the Department strongly prefers proactively addressing the regulations through this proposed rule.