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This rule will propose to amend Department of Homeland Security (DHS) and Department of Justice (DOJ) (collectively, "the Departments”) regulations that govern eligibility for asylum and withholding of removal. The amendments focus on the definitions making adjudications more efficient by standardizing several definitions including the definition of membership in a particular social group, the requirements of a failure of State protection, and determining whether persecution is on account of a protected ground. The rule will also propose to republish, modify or rescind portions of the Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review final rule (RINs 1125-AA94 and 1615-AC42).

This proposed rule is consistent with Executive Order 14010 of February 2, 2021, which directs the Departments 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.

Statement of Need:

This rule proposes providing 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 improve the efficiency of the adjudication of claims by creating standard definitions that have created confusion for applicants. 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, DOJ Executive Office for Immigration Review (EOIR) immigration judges, and members of the EOIR Board of Immigration Appeals.

Furthermore, on February 2, 2021, President Biden issued Executive Order 14010 that directs DOJ and DHS [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 proposed 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:

DHS and DOJ are considering any appropriate alternatives.

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 key asylum definitions will continue to be subject to judicial and agency interpretation, which may differ by circuit and create burdens for litigants and adjudicators.