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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 the adjudication of applications for asylum and related protection before EOIR, including requirements for filing a complete application and consequences for filing an incomplete application, filing and adjudication timelines for asylum and related protection in certain proceedings before EOIR, and amendments related to the information an immigration judge may consider when adjudicating applications for asylum and related protection. To revise the regulations related to EOIR adjudicatory procedures for asylum and related protection, the Department initially considered two separate rulemakings to generally require immigration judges to hold evidentiary hearings for asylum and related protection before adjudicating such applications (RIN 1125-AB22) and to reconsider the provisions that focus on the filing and adjudication of such applications (RIN 1125-AB15). After determining that these regulatory actions both relate to the procedures for adjudicating applications for asylum and related protection, the Department has decided to combine the two regulatory actions into a single rulemaking under RIN 1125-AB22 to rescind or modify the regulatory revisions made by Procedures for Asylum and Withholding of Removal (RIN 1125-AA93) and clarify that immigration judges must generally conduct an evidentiary hearing prior to adjudicating an application for asylum or related protection, consistent with Matter of E-F-H-L- , 26 I&N Dec. 319 (BIA 2014).

Statement of Need:

This proposed rule will revise the regulations related to adjudicatory procedures for asylum and withholding of removal, including changes to asylum evidentiary hearings and pretermission of such applications. On December 16, 2020, the 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 EOIR adjudicatory procedures for asylum and withholding of removal pursuant, in part, to 8 U.S.C. 1229a(c)(4)(B).

Alternatives:

The December 2020 rule, 85 FR 81698 (Dec. 16, 2020), was enjoined nationwide in January 2021. See Nat’l Immigrant Just. Ctr. et al., v. EOIR et al., 21-CV-0056 (D.D.C. Jan 14, 2021).  Unless the Department relies on litigation, there are no feasible alternatives to revising the regulations. Relying on litigation could be extremely time consuming and may introduce confusion as to whether the regulation is in effect. Additionally, without this proposed rule, the Department would have to rely on an uncertain legal and procedural landscape related to evidentiary hearings and pretermission. 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. 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. Additionally, evidentiary hearings for asylum and related protection are generally standard practice. Thus, the Department believes that the costs to the public will be negligible. Any new minimal cost would be limited to the cost of the public familiarizing itself with the proposed rule, although, as previously stated, the proposed rule restores 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 Office of the Chief Immigration Judge 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 is unpredictable and often takes a long time to conclude. The Department strongly prefers proactively addressing the regulations through this proposed rule. Additionally, without this rulemaking, there will be a lack of clarity as to whether asylum hearings on the merits are a general practice or whether asylum applicants are generally entitled to such hearings.