[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Rules and Regulations]
[Pages 19077-19080]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07252]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules 
and Regulations

[[Page 19077]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1208 and 1240

[EOIR Docket No. 173; AG Order No. 3375-2013]
RIN 1125-AA65


Forwarding of Asylum Applications to the Department of State

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule adopts without substantive change the proposed 
rule with request for comments published in the Federal Register on 
October 31, 2011, and includes several non-substantive, technical 
corrections. The Department of Justice (Department) is amending its 
regulations to alter the process by which the Executive Office for 
Immigration Review (EOIR) forwards asylum applications for 
consideration by the Department of State (DOS), Bureau of Democracy, 
Human Rights, and Labor. Currently, EOIR forwards to DOS all asylum 
applications that are submitted initially in removal proceedings before 
an immigration judge. The final rule amends the regulations to provide 
for sending asylum applications to DOS on a discretionary basis. For 
example, EOIR may forward an application in order to ascertain whether 
DOS has information relevant to the applicant's eligibility for asylum. 
This change increases the efficiency of DOS' review of asylum 
applications and is consistent with similar changes already made by 
U.S. Citizenship and Immigration Services (USCIS), Department of 
Homeland Security (DHS).

DATES: This rule is effective April 29, 2013.

FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free 
call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    On October 31, 2011, the Department published in the Federal 
Register a rule proposing to amend EOIR's regulations by removing the 
mandatory submission of all asylum applications to DOS. See 76 FR 67099 
(Oct. 31, 2011). The comment period ended December 30, 2011. The 
Department received three public comments. As explained below, the 
Department is adopting all amendments in the proposed rule, as well as 
making several non-substantive, technical corrections.

II. Background

    The current regulations require that EOIR send a copy of all 
defensive asylum applications to DOS.\1\ The Department is amending the 
regulations at 8 CFR 1208.11, 1240.11, 1240.33, and 1240.49 in order to 
remove this mandatory requirement. Under this rule, an immigration 
court has the discretion to forward a defensively filed asylum 
application to DOS, but is not required to do so. For example, EOIR may 
forward an application in order to ascertain whether DOS has 
information relevant to the adjudication of a particular case or type 
of claims. By consolidating certain paragraphs, the final rule also 
removes redundant references to the types of information that DOS may 
provide to EOIR. These amendments increase the efficiency of DOS' 
review of asylum applications and are consistent with similar changes 
USCIS has already made. See 74 FR 15367 (Apr. 6, 2009).
---------------------------------------------------------------------------

    \1\ EOIR receives and adjudicates asylum applications submitted 
directly to the immigration judge (known as defensive asylum 
applications) and those that are referred for consideration in 
proceedings before an immigration judge after initially being 
adjudicated through DHS USCIS' affirmative asylum process (known as 
affirmative asylum applications). We note that the regulations at 8 
CFR 1208.1(a)(1) provide, in part, that subpart A of part 1208 
``shall apply to all applications for asylum under section 208 of 
the Immigration and Nationality Act (Act) or for withholding of 
deportation or withholding of removal under section 241(b)(3) of the 
Act, or under the Convention Against Torture.'' Thus, the terms 
``asylum application'' or ``application for asylum,'' as used in the 
current regulations and in this final rule, refer to an application 
for: (1) Asylum under section 208 of the Act; (2) withholding of 
removal under section 241(b)(3) of the Act; (3) withholding or 
deferral of removal under the Convention Against Torture as provided 
in 8 CFR 1208.16 and 1208.17; and (4) withholding of deportation 
under former section 243(h) of the Act.
---------------------------------------------------------------------------

    EOIR's changes to the regulations do not require additional 
resources, either in the hiring of personnel at EOIR or DOS or in the 
expenditure of material or financial resources. Amending the 
regulations permits both EOIR and DOS to conserve resources. EOIR will 
no longer be required to expend resources on mailing to DOS every 
properly filed defensive asylum application it receives. Rather, an 
immigration judge may request, in his or her discretion, specific 
comments from DOS regarding individual cases or types of claims under 
consideration, or other information the immigration judge deems 
appropriate. By focusing on select cases forwarded by EOIR, DOS 
officers can better utilize their time and resources toward 
accomplishing their asylum responsibilities. These regulatory changes 
will also result in resource savings for asylum applicants, as an 
applicant will no longer be required to make an extra copy of his or 
her application for EOIR to forward to DOS, pursuant to current 
instructions to the Form I-589, Application for Asylum and for 
Withholding of Removal.
    Under this rule, the types of comments that DOS may provide will 
not change. At its option, DOS may provide detailed country conditions 
information relevant to the applicant's eligibility for asylum and 
withholding of removal. DOS may also provide an assessment of the 
accuracy of the applicant's assertions about conditions in the 
applicant's country of nationality or habitual residence and the 
applicant's particular situation, information about whether persons who 
are similarly situated to the applicant are persecuted or tortured in 
the applicant's country of nationality or habitual residence and the 
frequency of such persecution or torture, or such other information as 
DOS deems relevant.
    Additionally, these regulatory amendments are consistent with 
changes effected by implementation of the Homeland Security Act of 
2002. The Homeland Security Act authorized the

[[Page 19078]]

creation of DHS and transferred the functions of the former Immigration 
and Naturalization Service (INS) to DHS, while retaining EOIR under the 
authority of the Attorney General. In order to accommodate these 
changes, title 8 of the Code of Federal Regulations was reorganized 
into separate chapters, chapter I for DHS and chapter V for the 
Department of Justice. See 68 FR 9824, 9834 (Feb. 28, 2003). The 
provisions governing procedures for asylum and withholding of removal 
in part 208 were duplicated into a new part 1208. As a result, part 208 
governs asylum adjudications before DHS's USCIS and part 1208 governs 
asylum adjudications before EOIR. As this final rule only addresses 
submissions of asylum applications from EOIR to DOS, it is limited to 
amending 8 CFR 1208.11, 1240.11, 1240.33, and 1240.49. To be consistent 
with changes that effected implementation of the Homeland Security Act, 
references in EOIR's regulations to ``The Service'' and USCIS ``asylum 
officers'' forwarding asylum applications to DOS are removed, as those 
matters are now governed by the DHS regulations at 8 CFR 208.11.

III. Technical Corrections

    This rule also includes several technical corrections. The 
regulations currently refer to 8 U.S.C. 1101 and Title VII of Public 
Law 110-229 as authority for 8 CFR part 1208. The proposed rule that 
was published on October 31, 2011, inadvertently omitted citations to 8 
U.S.C. 1101 and Title VII of Public Law 110-229 in the authority 
section of 8 CFR part 1208. The proposed rule did not intend to remove 
those references. This final rule corrects these typographical 
omissions and includes citations to 8 U.S.C. 1101 and Title VII of 
Public Law 110-229 in the authority section of 8 CFR part 1208. The 
regulations currently refer to 8 U.S.C. 1224, 1251, 1252a, 1228 as 
authority for 8 CFR part 1240, but 8 U.S.C. 1224 is no longer directly 
applicable to part 1240 following the creation of DHS and related 
changes in the regulations. Sections 1251 and 1252a have been 
transferred to 8 U.S.C. 1227 and 1228, respectively, and 8 U.S.C. 1252b 
has been repealed. Additionally, the regulations currently do not 
include the following authorities, which are applicable to part 1240: 8 
U.S.C. 1158, 1186b, 1229a, 1229b, 1229c, and 1361. This final rule 
updates the authority for 8 CFR part 1240 to reflect these changes. 
This final rule also includes two minor, non-substantive changes to 8 
CFR 1208.11(a): Deleting the words ``such'' and ``as an'' and inserting 
the word ``the'' before ``immigration judge.'' Additionally, 8 CFR 
1208.11(b)(3) is revised to duplicate 8 CFR 208.11(b)(3) by deleting 
the words ``their respective'' and inserting the words ``the 
applicant's.'' 8 CFR 1208.11(c) is also revised to change the word 
``the'' to the word ``an'' before ``applicable Executive Order.'' The 
regulations at 8 CFR 1240.11(c)(2), 1240.33(b), and 1240.49(c)(3) are 
also revised to change the word ``the'' to the word ``an'' before 
``applicable Executive Order.'' As announced in the proposed rule, the 
Department is also amending part 1240 to cite to the correct regulatory 
provision regarding filing of an asylum application as provided in 8 
CFR 1208.4(b). The regulations at 8 CFR 1240.11(c)(2) and 8 CFR 
1240.33(b) are corrected to cite to 8 CFR 1208.4(b). This change is 
consistent with 8 CFR 1240.49(c)(3). These amendments are technical 
corrections and do not make any substantive changes to parts 1208 and 
1240.

IV. Responses to Comments

    The Department of Justice provided an opportunity for comment, 
which ended on December 30, 2011. The Department received three 
comments: One from an anonymous individual; one from a candidate for a 
Master of Social Work degree; and one from a candidate for a juris 
doctor degree. The Department considered these comments in preparing 
this final rule. The comments are numbered one through three in order 
of receipt. All comments and other docket materials are available for 
viewing by making arrangements with the EOIR Office of the General 
Counsel as discussed above.
    The first comment is general in nature and expresses the view that 
the United States should withdraw from its international protection 
obligations towards applicants for asylum and withholding of removal 
and should, instead, impose a general immigration moratorium. As this 
comment does not address the changes set forth in the proposed rule, 
the comment does not require a response.
    The second commenter supports this rulemaking initiative. The 
commenter notes that while the DOS serves as an informational resource 
tool for immigration judges, the information provided by DOS is not 
normally dispositive of the outcome of a given case. This commenter 
recognizes EOIR's proposed regulatory changes will allow both the 
Department and the DOS to utilize DOS as an information resource and 
``not as a storage locker for thousands of filed defensive 
applications; many of which they are unable to review in a reasonably 
timely manner.'' The commenter also expresses concern that the existing 
regulatory construct requiring DOS mandatory review of all defensive 
asylum and withholding applications filed with EOIR creates system 
inefficiencies, duplication of effort, and delays that may 
inadvertently extend the time an asylum applicant must remain in 
immigration detention during his or her immigration proceedings before 
EOIR. The commenter notes that the efficiencies to be gained by these 
regulatory changes outweigh possible negative considerations. Finally, 
the commenter notes that the direct and indirect cost savings to the 
government agencies directly affected by the regulation, as well as the 
cost savings to the public, allow for ``a redirecting of tax dollars to 
other areas in need.'' The Department agrees with this commenter that 
the proposed regulatory changes will make the DOS asylum application 
review process more economical and efficient.
    The third commenter opposes this rulemaking initiative. The 
commenter asserts that the proposed cost savings do not outweigh the 
possible harm to defensive asylum and withholding applicants. This 
commenter views the mandatory submission to DOS of all defensively 
received applications for asylum and withholding of removal as a 
safeguard against possible abuses of discretion by immigration judges 
making credibility determinations on asylum applicants' protection 
claims. The commenter notes that asylum applicants often suffer from 
some form of post-traumatic stress or depression that affects long-term 
memory, making credibility determinations very difficult and prone to 
error. The commenter further notes that DOS' cultural and country 
condition information may safeguard against immigration judges making 
incorrect adverse credibility determinations based upon asylum 
applicants' behavior and information that does not easily transfer 
across cultures.
    The Department appreciates this commenter's concerns. However, EOIR 
provides training to its adjudicators on cultural sensitivity and makes 
available numerous resources on country condition information, which 
more directly address the commenter's concerns. Moreover, continuing 
the current mandatory submission of all defensively filed asylum and 
withholding applications is not sustainable. DOS is tasked with 
numerous reporting and country condition responsibilities. DOS' review 
and comment on defensive asylum and

[[Page 19079]]

withholding applications is a small part of its overall mission. 
Revising the regulations to allow for immigration judges to exercise 
their discretion to request DOS review and comment on specific 
protection claims will allow DOS to better focus its limited resources. 
The existing process is neither efficient nor efficacious in producing 
the results originally contemplated by the regulation. In a time of 
dwindling resources, both human and monetary, the Department has 
determined that it is best to amend the regulations to provide 
immigration judges with the discretion to determine when and for which 
cases to seek DOS review. The final rule also provides DOS with the 
ability to focus its resources on providing review and comment for the 
cases that immigration judges have identified as most in need of DOS' 
expertise. Additionally, DOS is required to provide to Congress 
annually Country Reports on Human Rights Practices and International 
Religious Freedom Reports, which provide world-wide country conditions 
information that continue to be useful to the adjudication of asylum 
applications. This rule does not alter these DOS responsibilities, nor 
affect how immigration judges utilize these DOS country condition 
resources.
    Accordingly, the Department is adopting as a final rule the 
proposed rule amending 8 CFR parts 1208 and 1240 that was published on 
October 31, 2011, including the non-substantive, technical corrections 
discussed in this rule.

V. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities for the following reason: This rule affects 
only the process by which EOIR forwards and DOS receives asylum 
applications. The rule will not regulate ``small entities'' as that 
term is defined in 5 U.S.C. 601(6).

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

D. Executive Orders 12866 and 13563

    The Department has determined that this rule is not a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and Executive Order 13563. Accordingly, 
this rule has not been submitted to the Office of Management and Budget 
for review. Nevertheless, the Department certifies that this regulation 
has been drafted in accordance with the principles of Executive Order 
12866, section 1(b), and Executive Order 13563.

E. Executive Order 13132: Federalism

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, apply to this rule. The information collection requirement 
(Form I-589, Application for Asylum and for Withholding of Removal) 
discussed in this rule has been previously approved by the Office of 
Management and Budget (OMB. No. 1615-0067) as provided by the Paperwork 
Reduction Act. This rule will require revisions to the existing 
information collection. The Form I-589 instructions will be revised to 
reduce the number of form copies that must be submitted by applicants 
on and after the effective date of these regulations. Once a final rule 
is issued, EOIR and USCIS will work to modify the instructions to the 
Form I-589 to reflect the changes.

List of Subjects

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

    Accordingly, for the reasons set forth in the preamble, part 1208 
and part 1240 of chapter V of title 8 of the Code of Federal 
Regulations are amended as follows:

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 1208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1225, 1231, 1282; Title 
VII of Public Law 110-229.

0
2. Revise Sec.  1208.11 to read as follows:


Sec.  1208.11  Comments from the Department of State.

    (a) The immigration judge may request, in his or her discretion, 
specific comments from the Department of State regarding individual 
cases or types of claims under consideration, or other information the 
immigration judge deems appropriate.
    (b) With respect to any asylum application, the Department of State 
may provide, at its discretion, to the Immigration Court:
    (1) Detailed country conditions information relevant to eligibility 
for asylum, withholding of removal under section 241(b)(3) of the Act, 
and withholding of removal under the Convention Against Torture;
    (2) An assessment of the accuracy of the applicant's assertions 
about conditions in the applicant's country of nationality or habitual 
residence and the applicant's particular situation;
    (3) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in the applicant's country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
    (4) Such other information as it deems relevant.

[[Page 19080]]

    (c) Any comments received pursuant to paragraph (b) of this section 
shall be made part of the record. Unless the comments are classified 
under an applicable Executive Order, the applicant shall be provided an 
opportunity to review and respond to such comments prior to the 
issuance of any decision to deny the application.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
3. The authority citation for part 1240 is revised to read as follows:

    Authority:  8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 
105-277 (112 Stat. 2681).

0
4. Amend Sec.  1240.11 by revising paragraph (c)(2) to read as follows:


Sec.  1240.11  Ancillary matters, applications.

* * * * *
    (c) * * *
    (2) An application for asylum or withholding of removal must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, from the Department of State, unless classified under an 
applicable Executive Order, shall be given to both the alien and to DHS 
counsel and shall be included in the record.
* * * * *

0
5. Amend Sec.  1240.33 by revising paragraph (b) to read as follows:


Sec.  1240.33  Applications for asylum or withholding of deportation.

* * * * *
    (b) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, from the Department of State, unless classified under an 
applicable Executive Order, shall be given to both the applicant and to 
DHS counsel and shall be included in the record.
* * * * *

0
6. Amend Sec.  1240.49 by revising paragraph (c)(3) to read as follows:


Sec.  1240.49  Ancillary matters, applications.

* * * * *
    (c) * * *
    (3) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, of the Department of State, unless classified under an applicable 
Executive Order, shall be given to both the applicant and to DHS 
counsel and shall be included in the record.
* * * * *

    Dated: March 22, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-07252 Filed 3-28-13; 8:45 am]
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