This issue brief is drawn from a comment submitted by Senior U.S. Advocate Yael Schacher to the Federal Register on July 15, 2020.
Background and Summary
On June 15, 2020, the Departments of Homeland Security and Justice issued a major proposed asylum regulation: “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” (rule). The Departments allowed for an insufficient and unjustified 30-day comment period, rather than the typical 60 days, especially given the sweeping scope of the rule; after considering submitted comments, the Departments will finalize and implement the rule. The proposed rule would dramatically curtail eligibility for asylum in the United States by barring or discrediting broad categories of claims and making it extremely difficult for asylum seekers to get a fair or full hearing. The rule would violate both the spirit and the letter of U.S. and international refugee law. It represents an abandonment and abnegation of the responsibility to protect those seeking refuge from persecution, reflected in both international and U.S. domestic law.
With the 1980 Refugee Act, Congress intended to bring United States law into conformity with the UN Convention Relating to the Status of Refugees (the Refugee Convention) and its Protocol. It did this in two ways. First, it incorporated the non-refoulement (or non-return to persecution) obligation of Article 33 of the Refugee Convention into the Immigration and Nationality Act (INA) by prohibiting expulsion to a country where the asylum seeker’s life or freedom would be threatened. Second, the Refugee Act incorporated into the INA the definition of an asylee contained in the Refugee Convention—a person who has “a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group” (referred to as the five grounds).
In creating the asylum system, Congress intended to codify humanitarian principles of protection. Congress did not characterize asylum, as the proposed Trump administration rule does, as “an assertion of a government’s right and duty to protect its own resources and citizens,” a definition that frames the entire proposed rule and is used to justify a range of proposed draconian measures.
This issue brief addresses some of the most regressive and harmful elements of this proposed rule—and ones that are in striking contrast to the intent of Congress in implementing U.S. obligations under the Refugee Convention and Protocol.
As described and explained below, the proposed rule seeks to alter the definition of “firm resettlement” in a way that would deny U.S. admissions for much if not most of the world’s refugee populations.
When the United States acceded to the Refugee Protocol in 1968, its major goal was to set a moral example, to “lend conspicuous support to the effort of the United Nations toward attaining the Protocol’s objectives everywhere” at a time when unrest and new refugee problems were emerging in more areas of the world. The United States was keen to help promote “lasting solutions to refugee problems” to ensure that the displaced did not remain reliant on international relief but found firm resettlement and had access to work and education and the other rights provided in the Convention. Indeed, in a “succession of special refugee immigration measures enacted since 1945,” such as the Displaced Persons Act and Refugee Relief Act, Congress recognized the importance of providing permanent resettlement for refugees and promoting their assimilation in the United States, so long as they were not already firmly resettled elsewhere. The goal was to ensure that displaced populations were not left in limbo and without access to livelihoods, education, and security.
Unfortunately, this is the predicament of many more refugees today than in 1968, and durable solutions are sorely needed. Yet the proposed rule suggests that this is no longer of concern to the United States given that additional countries have signed the Refugee Convention and “the increased availability of resettlement opportunities.” But the fact that a country is party to the Refugee Convention and Protocol does not mean that country provides a safe haven for a particular asylum seeker. At a time when, as the UN Refugee Agency (UNHCR) has stressed, resettlement opportunities are lacking, the rule would change the definition of firm resettlement. The proposed new definition would bar from asylum in the United States those who managed to live precariously for a year in a transit country or could have theoretically accessed even a non-permanent legal residence status there, even if they never did so. As a recent federal court has recognized, this warping of the concept of firm resettlement is contrary to what Congress meant in laws dealing with refugees passed in 1980 and 1996. And it is happening at a time when, as the UNHCR has noted, U.S. provision of refuge to the vulnerable is needed more than ever.
Definition of Persecution
With this proposed rule, the administration seeks to rewrite the law and supplant established regulations and federal court decisions that better reflect the intent of Congress. The clearest example of this is the proposed rule’s redefinition of persecution.
Over the course of thirty years, beginning in 1950, Congress steadily broadened its interpretation of persecution from “physical persecution” to “persecution on account of race, religion, or political opinion,” to “a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.” In the Refugee Act of 1980, members of Congress intended that latter definition to be in accord with the UN Handbook on Procedures and Criteria for Determining Refugee Status (1979, revised 2019). This handbook discusses the importance of considering the “subjective” and “cumulative” effects of measures not in themselves amounting to persecution on their own, a definition upheld by numerous U.S. courts. The proposed rule, in contrast, regresses toward the long surpassed definition of physical persecution, requiring that the asylum seeker be a victim of persecution “so severe” as to “constitute an exigent threat”; contrary to decisions in numerous federal courts, the rule dismisses consideration of the cumulative effect of repeated death threats and detentions. The definition of persecution in the rule could also lead to the denial of asylum to refuge-seeking children, whose persecution claims the agencies and the courts have recognized as needing “special” and “liberal” consideration because they experience harm and recount it differently than adults.
The definition of persecution on account of “political opinion” and “particular social group” in the 1980 Refugee Act, based upon the UN Convention definition, was meant to be interpreted flexibly, such that it would encompass persecution as it actually existed at the time as well as new and varied forms of persecution that Congress could not fully anticipate. In 1996, Congress clarified that this should cover “persons who have been submitted to undeniable and grotesque violations of fundamental human rights.”
Instead, the proposed rule would disqualify political opinion that does not go so far as to advocate regime change or is associated with a formal political ideology, party, or state actors, a position that has no basis in law or policy, and is belied by common sense. This narrow definition ignores the reality of political control and persecution by terrorists and gangs in many countries. The rule also provides a “non-exhaustive” list of general categories of persecution claims that would not qualify, such as those related to attempted recruitment by gangs and “gender” related claims. The latter completely ignores the UNHCR’s recognition of the particular vulnerabilities of women refugees and the guidance for the handling of gender-related persecution claims developed by the U.S. Immigration and Naturalization Service in 1995 and in a proposed regulation in 2000—a regulation that Congress urged the agency to finalize.
The proposed rule would thus disqualify from asylum those targeted for persecution for their activism on behalf of women’s rights or those fleeing brutal gender-based violence from which their governments would not protect them—severe harm that has long been considered persecution under the Refugee Act. Congress, when it passed the Refugee Act, clearly delineated the groups of individuals barred from asylum. By adding additional groups not delineated in the statute— categories that Congress chose not to bar—the proposed rule would re-write the law and unlawfully restrict asylum to those who should be accorded refuge.
Moreover, the proposed rule violates the Real ID Act of 2005, in which Congress specified that persecution is “on account of” one of the five grounds, including particular social groups, whenever the ground is “one central reason” for the persecution. This is a factual question and categorically denying all cases where gender is raised is antithetical to the analysis required in asylum cases. The proposed rule also seeks to prohibit “consideration of evidence promoting cultural stereotypes of countries or individuals, including stereotypes related to race, religion, nationality, and gender.” By effectively limiting information on country conditions, this provision would severely restrict submission of key evidence needed to support gender-based claims, including documentation that violence against women in a particular society is committed with impunity and that gender is “at least one central” reason for their harm.
Denying a Semblance of Fair Adjudication
Indeed, the approach of the proposed regulation seeks to obviate one of the most universal precepts in asylum adjudication, which is that eligibility for protection is to be demonstrated through a case-by-case evaluation that accords asylum seekers due process and a chance to fully explain the basis of their claim and present evidence to support it.
The proposed rule allows immigration judges to “pretermit and deny” asylum applications that do not appear to meet these newly devised legal qualifications without even according the asylum seeker a hearing. This would have devastating consequences for the vast majority of asylum seekers who lack counsel (and especially those in the administration’s Remain in Mexico program).
The proposed rule also subverts the screening interview process established by Congress for asylum seekers in 1996. When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act establishing expedited removal for those arriving at the border without documents, it created a process to ensure that asylum seekers would not be summarily removed in violation of the non-refoulement obligation. The law requires that those who express fear of persecution be given a “credible fear” interview with a specially trained asylum officer. Recognizing that just-arrived asylum seekers generally were traumatized, did not speak English, were detained, and were unrepresented by counsel, “credible fear” was a deliberately relaxed standard, and those who met the standard were to be provided the chance to tell their full story to an immigration judge. The proposed rule subverts this process. It turns the credible fear interview into an interrogation. Asylum seekers must prove several complex negatives, including that they could not have internally relocated within their own country, while asylum officers are instructed to assume that, since the asylum seekers made it to the United States, they could have relocated.
Eliminating Critical Forms of Protection
The rule places those who are deemed to have a credible fear of persecution into “asylum-only” rather than full removal proceedings. This means they would be unable to apply for other forms of relief for which Congress intended them to be eligible, such as visas under the Trafficking Victims Protection Act. Congress did not intend, as the rule suggests, to rush or limit the hearings of those who passed credible fear screenings (and explicitly specified that only very narrow categories of entrants be placed in “asylum only” hearings).
In late 2019 and early 2020, Refugees International witnessed two immigration court proceedings of Venezuelan asylum applicants who entered the United States after transiting through several countries and waiting in Mexico. Both were granted asylum and relief under the Convention Against Torture after testifying that they had been brutally beaten by armed, un-uniformed colectivos on motorcycles for reporting political corruption and demanding political reform. If the proposed rule had been in effect, the two Venezuelans would likely have been denied asylum because they they “spent more than 14 days” in Mexico and “transited through more than one country [before] arriving in the United States,” two of nine adverse discretionary factors the rule mandates for consideration by adjudicators of asylum claims. (If the rule had been in place, they also would likely not have qualified for relief under the Convention Against Torture. This is because unreasonable standards in the rule make it unlikely that they could have proven the colectivos were government officials or acting on their behalf or with their acquiescence—rather than just “rogue officials” engaging in private criminal acts.)
Entry of Asylum Seekers Who Have Crossed the Border without Authorization
The proposed rule also makes “unlawful entry or unlawful attempted entry” and the use of fraudulent documents to be a significant adverse discretionary factor in the assessment of asylum claims by adjudicators. There is no basis in law, legislative history, or common sense to justify such a position. In most cases, individuals who are fleeing persecution cannot procure the kind of documentation that would permit legal entry. Congress recognized this obvious fact when, in the 1980 Refugee Act, it directed the attorney general “to establish a new uniform asylum procedure,” that would apply to “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status.” [Italics added]. The plain language of the statute demonstrates Congress’ clear intent that a person’s ability to seek refuge in the United States should not be undermined by his or her manner of entry. Congress intended for danger of persecution to outweigh all other factors weighed by adjudicators. Procedures established in asylum regulations should be in accord with the statute and not discriminate against asylum seekers based upon their mode of entry. Penalizing refugees for irregular manner of entry is also inconsistent with Article 31 of the Refugee Convention.
Particular Impacts on Central American Asylum-Seekers
As with many of the administration’s previous policies and decisions, the general bars in the rule particularly impact Central Americans fleeing domestic violence and gangs, making it impossible for them to gain asylum. For example, the rule states that an adjudicator would generally not favorably adjudicate claims of those who claim membership in a particular social group defined partly by “presence in a country with generalized violence or a high crime rate.” The rule also says that adjudicators cannot consider as persecution “instance[s] of harm that arise generally out of civil, criminal, or military strife in a country.” Although it has long been held that generalized claims of civil unrest or political instability are insufficient to support an asylum claim, it is also well-established that fear based on a specific ground is not negated because of such unrest or instability.
The rule unfairly singles out those fleeing violent places and, in effect, categorically bars them from protection. The rule also follows a disturbing pattern established by the administration of justifying this in the name of “maintaining international relations” and “defending the country against foreign…dangers.” There is little evidence that these regressive measures will serve those purported objectives. However, as Refugees International found investigating the Guatemala-U.S. Asylum Cooperative Agreement, there is considerable evidence that the dramatic curbing of asylum protections only further endangers those fleeing harm in other countries.
Asylum is intended to restore human dignity to those fleeing persecution based upon fundamental aspects of personhood that they cannot, or should not be forced, to change. The proposed rule subverts this goal by illegally restricting eligibility and denying due process to those seeking refuge in the United States. Refugees International urges the administration to immediately withdraw the joint notice of proposed rulemaking.
 Under most circumstances, agencies must provide public comment periods of at least 60 days in length. (Exec. Order 12866, 58 Fed. Reg. 51735 (Oct. 4, 1993); Exec. Order 13563, 76 Fed. Reg. 3821 (Jan. 21, 2011)
 See, in general, INS v. Cardoza Fonseca 40 U.S. 421 (1987) As a legal matter, the United States acceded only to the Refugee Protocol, but that Protocol incorporated the provisions of the Refugee Convention and expanded its territorial applicability.
 See House Report 96-608, 96th Congress, 1st Session, page 18.
 85 Fed. Reg. 36265. The rule gets this definition from Kleindienst v. Mandel, 408 U.S. 753, 765 (1972), a Supreme Court decision that did not involve asylum.
 Letters of President Johnson and the Secretary of State Rusk to the Senate when transmitting the Protocol, reprinted in Senate Executive Report K, 90th Congress, 2nd Session, August 1, 1968.
 “Numerous Executive Committee Conclusions affirm that the 1951 Convention and principles of refugee protection look to durable solutions for refugees. Accordingly, cessation practices should be developed in a manner consistent with the goal of durable solutions.” UNHCR Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses), HCR/GIP/03/03, February 10, 2003, https://www.unhcr.org/3e637a202.pdf.
 85 Fed. Reg. at 36285.
 85 Fed. Reg. at 36286.
 Section 23 of Internal Security Act of 1950; Provision 243(h) of the Immigration and Nationality Act of 1952
 In 1965, Section 11f of Public Law 89-236 (79 Stat. 911).
 Page 21 of UN Handbook, https://www.unhcr.org/en-us/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html
See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-1 (1987)(finding that an individual who premises an asylum claim on a well-founded fear of future persecution must demonstrate both a subjectively genuine and an objectively reasonable fear and that a well-founded fear may exist even when there is as little as a one-in-ten chance of future persecution); see also Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998)(the cumulative effect of incidents suffered may rise to the level of persecution).
 85 Fed. Reg. at 36280.
Decisions that indicate that death threats are persecution: Hernandez-Abalos v. Lynch, 784 F.3d 944, 949 (4th Circuit, 2015); Kipkemboi v. Holder 587 F 3d 885, 888 (8th Circuit, 2009); Canales-Vargas v. Gonzales, 441 F.3d 739, 744–46 (9th Cir. 2006. Implicit death threats are also persecution: Un v. Gonzales, 415 F.3d 205, 209–10 (1st Cir.2005)
The 2015 asylum office training course explained that “receipt of threats over a prolonged period of time, causing the applicant to live in a state of constant fear” can rise to the level of persecutory harm (Deborah Anker, Law of Asylum in the U.S. (Thomson Reuters, 2019) 209).
 Office of International Affairs, INS, Immigration and Naturalization Service Guidelines for Children’s Asylum Claims, Dec. 10, 1998, page 17 and 20 https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/childrensguidelines121098.pdf
Ordonez-Quino v. Holder 760 F.3d 80 (1st Circ. 2014); Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Circuit 2012); Kholyavskiy v. Mukasey, 540 F 3d 555, 571-72 (7th Circ, 2008); Hernandez-Ortiz v. Gonzalez 496 F.3d 1042 1045-46 (9th Circuit 2007); Jorge-Tzoc v. Gonzalez, 435 F.3d 146, 150 (2nd Cir. 2006); Abay v. Ashcroft 368 F. 3d 634, 640 (6th Cir. 2004); Liu v. Ashcroft 380 F.3d 307, 314 (7th Circuit 2004).
 Andrew I. Schoenholtz, “The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century,” Chicago Journal of International Law 16, no. 1 (Summer 2015): 81-126; Deborah Anker, Law of Asylum in the U.S. (Thomson Reuters, 2019), 226.
According to UNHCR, “the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.” U.N. High Comm’r for Refugees, Guidelines On International Protection: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, 3 (May 7, 2002), https://www.unhcr.org/en-us/publications/legal/3d58de2da/guidelines-international-protection-2-membership-particular-social-group.html.
 H.R. Rep. No. 104-469, pt. 1, at 174 (1996).
 The proposed rule states that political opinion claims can only be based on “furtherance of a discrete cause related to political control of a state or a unit thereof.” The proposed rule goes on to explicitly reject the possibility that applicants’ expression of opposition to terrorist or gang organizations can qualify as a political opinion, unless the asylum seeker’s “expressive behavior” is “related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.”
85 Fed. Reg. 36280.
 Decades of precedent establish that political opinion should be interpreted much more broadly and should include imputed political opinion, that is, by definition, not expressed as required by the rule (see INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005); Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017 (9th Cir. 2011)).
 85 Fed. Reg. 36279
 85 Fed. Reg. 36381
 “Immigration and Naturalization Service Gender Guidelines,”Int. Journal of Refugee Law,7.4 (1995) 700-719.
 Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060 (9th Circuit 2017, en banc) explains that “the concept of persecution by non-state actors in ‘inherent’ in the Refugee Act”; to obtain asylum based on persecution by non-state actors, the court writes, applicants must show that their governments were unable or unwilling to control the persecutors, citing many cases (pages 1062-68) that attest to this standard.
 These individuals include those who ordered, incited, assisted, or participated in the persecution of others; have been convicted of particularly serious crimes; have committed serious non-political crimes outside the United States; are a danger to the security of the United States; or were firmly resettled in another country. Congress also excluded individuals who have engaged in the persecution of others from the INA’s definition of “refugee.”
 8 U.S.C. § 1158(b)(1)(B)(i).
 85 Fed. Reg. at 36282.
Section 208(b)(1)(B)(ii) of the INA sets forth ways in which an applicant can sustain the burden of proving eligibility for asylum, including through credible testimony and “other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii).
 85 Fed. Reg. 36277. An applicant’s legal eligibility for asylum is intertwined with the applicant’s factual account of persecution, which many applicants will be unable to articulate fully in writing.
 TRAC Immigration, “Record Number of Asylum Cases in FY2019,” Jan. 8, 2020, https://trac.syr.edu/immigration/reports/588/.
See TRAC Immigration, “Details on MPP (Remain in Mexico) Deportation Proceedings,” https://trac.syr.edu/phptools/immigration/mpp/ (last accessed July 15, 2020).
Another problematic section of the Rule (85 Fed. Reg. 36273-77) would allow an application to be deemed frivolous where it is “clearly foreclosed by applicable law.” This would have an effect on represented asylum seekers – those who have novel claims and attorneys who can present cutting edge legal arguments winnable on appeal.
 The drafters of the 1996 legislation made clear their intent to provide full due process protections to asylum seekers with viable claims. For example, Senator Hatch stated that “the [credible fear] standard adopted in the conference report is intended to be a low screening standard for admission into the usual full asylum process.” 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996). The Conference Report accompanying IIRIRA notes, “[i]f the officer finds that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum under normal non-expedited removal proceedings.” H.R. Rep. No. 104-828, at 209 (1996)
 85 FR 36272. The Rule’s proposed revision of assessment of the feasibility of relocation contradicts UNHCR guidelines that require taking into account the quality of a person’s life if he or she were to internally relocate and make clear that the distance a person has traveled to seek refuge is wholly irrelevant. United Nations High Commissioner for Refugees, Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees. HCR/GIP/03/04 (23 July 2003), available at: https://www.refworld.org/pdfid/3f2791a44.pdf
 According to INA section 235(a)(1)(2), stowaways who pass a credible fear screening are ineligible for a “hearing under section 240” and must instead pursue their claims in asylum- and withholding-only proceedings. INA § 217(b)(2) requires Visa Waiver Program entrants to waive their right to a hearing under section 240, except “on the basis of an application for asylum” and INA § 212(l)(2) says the same for the Guam and Northern Mariana Islands Visa Waiver Program.
 85 Fed. Reg. 36284.
 85 Fed. Reg. 36286-7.
 85 Fed. Reg. 115, 36282-3.
 Refugee Act of 1980, House Report 96-781, 96th Congress, 2nd session, Feb. 22, 1980.
 Matter of A-B-, which was rebuked by Grace v. Barr, https://www.aclu.org/legal-document/grace-v-barr-court-appeals-opinion
 85 Fed. Reg. 36279.
 85 Fed. Reg. 36280.
 Juan-Pedro v. Sessions, 740 F. App’x 467 (6th Circuit, 2018); Ordonez-Quino v. Holder, 760 F.3d 80 (1st Cir. 2014); Mengstu v. Holder, 560 F. 3d 80 (9th Cir. 2009); Sinha v. Holder, 564 F.3d 1015, 1023–25 (9th Cir. 2009); Konan v. U.S. Att’y Gen., 432 F.3d 497, 503–06 (3d Cir. 2005)
 85 Fed. Reg. 36265 (quoting Kleindienst v. Mandel, 408 U.S. 753, 765 (1972), which was not a case about an asylum seeker).
Cover Photo: A small group of activists from BAMN (Coalition to Defend Affirmative Action, Integration & Immigrant Rights, and Fight for Equality By Any Means Necessary) protest outside the U.S. Supreme Court on March 2, 2020 in Washington, DC. (Photo by Drew Angerer/Getty Images)