INS Issues Proposed and Final Asylum Regulations

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

INS ISSUES PROPOSED AND FINAL ASYLUM REGULATIONS
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Immigration and Naturalization Service recently issued sets of proposed and final regulations relating to asylum. The proposed regulations respond to and provide guidance on issues arising in Matter of R-A-, Int. Dec. 3404 (BIA 1999), a case concerning a Guatemalan woman who was subjected to domestic violence. Among other things, the rules define "persecution" and "particular social group." The final rules concern asylum procedures and took effect on Jan. 5, 2001.

This summary highlights substantive changes contained in both the proposed and final asylum regulations. Not included in this survey are the numerous enumerations and minor language revisions provided for in the new regulations.

PROPOSED ASYLUM REGULATIONS

Burden of proof regarding past persecution. The proposed regulations modify the burden of proof standard by increasing the burden on the asylum applicant. Under current rules, applicants who establish that they have been persecuted in their country of origin are presumed to have a well-founded fear of being persecuted if they return there. The Immigration and Naturalization Service can rebut this presumption by showing, through a preponderance of the evidence, that conditions have changed in the country of origin to such a degree that the applicant no longer has a well-founded fear of being persecuted if he or she returns there. However, the proposed regulation makes it easier for the INS to rebut this presumption. The agency may do so by showing, by a preponderance of the evidence, that the applicant's circumstances have undergone a fundamental change or that it would be reasonable to expect that the applicant could relocate within the country of origin and thus avoid persecution. The proposed regulation makes similar changes to the standard for proving eligibility for withholding of removal. Thus, the applicant would not be relieved of the burden of producing testimonial or documentary evidence relating to future persecution.

In addition, the proposed regulations state that if an applicant's fear of future persecution is unrelated to the persecution he or she suffered in the past, the applicant still bears the burden of establishing that his or her fear of future persecution is well-founded.

Finally, if an immigration judge or the Board of Immigration Appeals finds that the applicant has failed to establish past persecution, questions of fundamental changed circumstances and reasonable internal relocation are reserved such that the INS is not required to present evidence to preserve the issues. If the finding is set aside, the INS and the applicant can, on remand, submit evidence and argument on the questions of fundamental changed circumstances and reasonable internal relocation before any ruling is issued. These provisions are also referenced in the final regulations discussed below.

New definition of "persecution." Until now, asylum regulations did not define "persecution"; the frequently used definition, "the infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive," was derived from case law. The proposed regulation defines persecution differently, as "the infliction of objectively serious harm or suffering that is subjectively experienced as serious harm or suffering by the applicant, regardless of whether the persecutor intends to cause harm." It is unclear whether the inclusion of the qualifier "objectively serious" imposes a higher standard that the applicant must meet.

On the other hand, the proposed regulations embrace the notion developed in Matter of Kasinga, 21 Int. Dec. 357 (BIA 1996) (en banc) and Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), both of which held that asylum applicants can establish that they were persecuted without having to show that their persecutor intended to cause them harm. In accordance with those holdings, the proposed rules clearly recognize that such intent need not be established. The rules also codify existing law by adding that the harm or suffering must be inflicted by the government or by a person or group that the government is unable or unwilling to control.

The nexus requirement. In order to obtain asylum or withholding of removal, an applicant must establish that the persecution he or she suffered was on account of one of five factors enumerated in the Immigration and Nationality Act: race, religion, national origin, political opinion, or membership in a particular social group. There must be a nexus, or connection, between the persecution suffered and one of the enumerated grounds. The interpretation of this nexus requirement has varied widely among the circuit courts. The Ninth Circuit Court of Appeals, for one, has held that the nexus requirement is satisfied where the applicant can establish one motive for persecution as falling under one of the statutorily enumerated grounds. Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995). The proposed regulations require the applicant to show that one of the enumerated grounds is central to the persecutor's motivation to act against the applicant. This requirement may impose additional hardships on applicants in an area where persecutors' motives are already difficult to demonstrate.

The proposed rules also incorporate the doctrine of imputed political opinion. The doctrine applies if the applicant can show that the persecutor was or is inclined to persecute the applicant because the persecutor perceives him or her to possess a particular political opinion, even if the applicant does not in fact hold such an opinion.

Membership in a particular social group. The proposed regulations define "particular social group" and thereby codify Matter of Acosta, 19 I. & N. Dec. 234-35. The proposed rule defines a "particular social group" as composed of members who share a common, immutable characteristic, such as sex, color, kinship ties, or past experience, that a member either cannot change or that is so fundamental to his or her identity or conscience that he or she should not be required to change it. The regulations also require that the group exist independently of the fact of persecution. That is, the persecutory experience should not be the sole common factor joining such individuals in a group.

The proposed regulations include a confusing section that attempts to describe when past experience defines a particular social group. According to the rule, the experience must have been such that, at the time it occurred, the member could not have changed it. Or, the experience must have been so fundamental to the member's identity or conscience that he or she should not be required to change it. The preamble to the proposed regulations suggests that not all experiences can qualify persons who have had them for protection as a particular social group. It uses the example of gang membership and states that such an experience would not be protected because that type of experience could have been avoided.

The proposed regulations adopt a flexible approach to defining social groups, recognizing that many factors may be relevant to (but not necessarily determinative of) whether a social group exists. The proposed regulations' supplementary information specifically contemplates that this flexibility will support domestic violence victims' ability to establish membership in a social group. The factors listed in the regulations include whether

members of the group are closely affiliated with each other;
members are driven by a common motive or interest; o a voluntary associational relationship exists among the members;
the group is a recognized segment of the population in the country in question;
members view themselves as members of the group; and
the society in which the group exists distinguishes members of the group for different treatment or status than is accorded to other members of the society.

FINAL ASYLUM REGULATIONS

Certain noncitizens not entitled to proceedings under INA section 240. The new regulations provide that if proceedings are referred to them by the INS regional director or district director, IJs have exclusive jurisdiction over persons ordered removed pursuant to section 235(c) (terrorists) or persons applying for or admitted under section 101(a)(15)(S) (criminal witnesses).

Penalties for filing false information. The new regulations provide that persons who knowingly place false information in their applications for asylum or withholding of removal may be subject to criminal penalties under 18 U.S.C. or civil and criminal penalties under the INA's document fraud provisions.

Applicant allowed to present evidence. The INA allows any person, irrespective of status, who is physically present in the U.S. to apply for asylum. This broad rule is subject to exceptions in cases where the person may be removed to another country. When any of these exceptions apply, the new regulations direct asylum officers or IJs to review the application and give the applicant an opportunity to present any relevant evidence bearing on any prohibitions on filing.

One-year deadline. All asylum applicants must present their applications within one year of entering the U.S. According to the final rules, the one-year deadline must be calculated from the date of the person's last arrival in the U.S. When the last day of the period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday.

Generally, an application is considered filed on the date it is received by the INS. The rule, however, creates a special exception solely for applications filed with the INS and strictly for purposes of meeting the one-year deadline. Individuals who can show by clear and convincing evidence that they mailed an asylum application to the agency within the one-year timeframe will be considered to have met the requirement. However, asylum applications mailed to the immigration court or the BIA must still be received by the court or BIA within the one-year deadline.

Changed circumstances. Changes in circumstances may constitute exceptions to the one-year filing deadline. The final rule provides that the list of factors currently in the regulations is not exclusive. The new rules also eliminate the term "objective," which had previously defined changed circumstances. This change was made in order to reflect subjective changes that the applicant might have made, such as undergoing a religious conversion. The final rules also eliminate the requirement that changes occur within the U.S.

The newly issued final rules also add to the list of changed circumstances the cessation of the relationship between the principal and a dependent who was a derivative in the application. Finally, the rules require the INS to take into account an applicant's delayed awareness of the change in circumstances.

Extraordinary circumstances. The one-year deadline for filing an asylum application may be exceeded if certain extraordinary circumstances obtain. The new rules modify in a number of ways how extraordinary circumstances may be taken into account in determining whether an application filed after the deadline will be accepted. The rules clarify that (1) the applicant has the burden of proving the existence of extraordinary circumstances; (2) the circumstances cannot have been intentionally caused by the person; (3) the circumstances must have been directly related to the late filing; and (4) the delay in filing the application must be reasonable in light of those circumstances. In addition, the new rules remove the requirement that any serious physical or mental disability preventing the person from timely filing be "of significant duration."

The final rule also allows persons who have obtained parole or who are in legal immigrant or nonimmigrant status to apply for asylum within a reasonable period of time after the expiration of their status. In addition, the rules add to the list of exceptional circumstances situations where the applicant's legal representative or immediate family member has suffered serious illness, is incapacitated, or has died.

Finally, the rules have been changed to authorize, in certain circumstances, the filing of an application directly with the director of the Asylum Office and the director of the Asylum Program rather than with the INS service center. The rules also permit direct filings with the Asylum Office in situations where an applicant loses derivative status and must therefore file as a principal.

Special duties toward noncitizens in custody of the INS. The final rules add new language providing that while the INS is not required to provide asylum applications to detained persons with pending credible fear or reasonable fear determinations, it may provide detainees with appropriate forms if they request them.

Past persecution. As noted above, both the proposed and final rules modify the burden of proof, even in situations where a person has established persecution in the past.

Well-founded fear of persecution. The new rules also include relocation provisions that affect a person's ability to establish a well-founded fear of persecution. According to the rules, if the applicant can avoid persecution by relocating to another part of his or her country and such relocation can be considered reasonable given the circumstances, the applicant cannot establish a well-founded fear of persecution.

For purposes of relocation, the rules direct adjudicators to consider

whether the applicant would face other serious harm in the place of suggested relocation;
any ongoing civil strife within the country;
administrative economic or judicial infrastructure;
geographic limitations; and
social and cultural constraints such as age, gender, health, and social and familial ties.

In cases in which the applicant has not established past persecution, the applicant bears the burden of establishing that it would not be reasonable for him or her to relocate unless the persecution is by a government or is government-sponsored.

In cases where the persecutor is the government and the applicant has established past persecution, it shall be presumed that internal relocation would not be reasonable. In order to rebut this presumption, the INS must establish by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.

Approval, denial, referrals, and dismissals. 8 C.F.R. section 208.4 has been substantially revised and reorganized and now outlines procedures for granting and denying asylum. It allows asylum officers to deny asylum if persons have been in a lawful status such as temporary protected status, or have been paroled. It also adds procedures for persons who have been paroled into the U.S. A new provision has been added to section 208.19 providing that a letter communicating denial or referral of the application must state the basis for the denial or referral.

Termination of asylum and withholding. The final rules also alter the preexisting section on change in country conditions. The new rule provides that a person is no longer entitled to withholding of deportation or removal when, owing to a fundamental change in circumstances relating to the original claim, the person's life or freedom no longer would be threatened on account of one of the enumerated grounds.

Credible fear determinations. Credible fear determinations are subject to a few modifications under the new rules. A new section has been added allowing dependent(s) to file for asylum along with the principal.

If the person establishes a credible fear of persecution subject to one of the mandatory bars to asylum, the rules direct the INS to place the person in proceedings under INA section 240 for full consideration of the person's claim. If the person is a stowaway, he or she must be placed in proceedings under 8 C.F.R. section 208.2(c)(3).

Two new provisions allow a person's failure or refusal to request a review to be treated as a request for review and allow the INS to reconsider a determination even after the judge has affirmed the decision.

65 Fed. Reg. 76,588-98 (Dec. 7, 2000) (proposed asylum regulations); 65 Fed. Reg. 76,121-38 (Dec. 6, 2000) (final asylum regulations).