July 15, 2020

Via Federal e-Rulemaking Portal

Lauren Alder Reid, Assistant Director

Office of Policy, Executive Office for Immigration Review

5107 Leesburg Pike, Suite 1800

Falls Church, VA 22041

Office of Information and Regulatory Affairs

Office of Management and Budget

725 17th Street, NW

Washington, D.C. 20503

RE: Procedures for Asylum and Withholding of Removal;

Credible Fear and Reasonable Fear Review

85 Fed. Reg. 36264 (June 15, 2020)

EOIR Docket No. 18-0002, A.G. Order No. 4714-2020

RIN 1125-AA94

OMB Control No. 1615-0067

Dear Assistant Director Alder Reid:

Brooklyn Defender Services (“BDS”) submits these comments to the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively, the “Departments”) Notice of Proposed Rulemaking regarding “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,” published in 85 Fed. Reg. 36264 (hereinafter, the “Proposed Rule”). For the reasons set forth below, BDS strongly opposes the Proposed Rule.

BDS is a full-service public defender organization in Brooklyn, New York that provides multi-disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-immigration specialists provide support and expertise on thousands of such cases. BDS’s immigration practice represents people in applications for immigration relief, including asylum, before U.S. Citizenship and Immigration Services (“USCIS”), and in removal proceedings in New York’s immigration courts. In addition, BDS is one of three New York Immigrant Family Unity Project providers and has represented more than 1,400 people in detained deportation proceedings since the inception of the program in 2013.

On June 15, 2020, the Departments issued the Proposed Rule that contravenes the rights of asylum seekers’ and dismantles asylum law. This Proposed Rule would create a system that categorically denies legitimate asylum claims without individualized determinations, raising substantial due process concerns. As set forth below, BDS strongly opposes the imposition of these vast obstacles to asylum, which substantially curtail the protections that the United States is obligated to provide asylum seekers under international treaties and existing law. For asylum seekers, the stakes of being denied asylum despite being eligible are extremely high: being returned to their country of origin, where they will face violence, brutal persecution, and even death. By upending established law and legal precedent as to the standards of asylum under the guise of clarifying standards, the Departments eliminate broad swathes of legitimate asylum claims, particularly those made by individuals from Central America. The Proposed Ruled dismantles notions of individualized discretion, and instead individuals found eligible for asylum would be denied for minor and seemingly unrelated factors. In so doing, the Proposed Rule heightens the standard of asylum for vulnerable communities, such as those at heightened risk for arrest and policing, and those dealing with the effects of trauma.

It is already exceedingly difficult to win an asylum claim and the laws, regulations, and processes governing asylum in the United States have become increasingly harsh under this Administration. And purposefully so, the Administration seeks to prohibit individuals fleeing violence from seeking safe haven in the United States, by codifying into federal law its numerous and sprawling anti-asylum policies.

A. The 30-day Comment Period To Respond to the Proposed Rule Is Insufficient

The Proposed Rule would overhaul nearly the entirety of the asylum system, and constitute the most sweeping changes to asylum law since the 1996 amendment to the Immigration and Nationality Act (“INA”), the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA). The Rule would have a significantly detrimental impact on many individuals who have fled violence in their home country and seek protection in the United States, as well as the legal organizations who represent them. The Notice of Proposed Rulemaking is over 160 pages long with more than 60 of those pages consisting of proposed regulations. Given the breadth of the rule and the importance of the issue, the 30-day comment period was too short to allow organizations to fully digest the rule and meaningfully craft feedback. Notably, 30 days is the minimum time allotted for a comment period.1

Thus, more than 500 organizations signed on to a letter requesting that the Departments extend the comment period to a minimum of 60 days,2 as pursuant to Executive Order 13563 agencies are directed to “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days.”3 Indeed, the complexity of the Proposed Rule warrants a comment period longer than 60 days, which is contemplated by procedure: “For complex rulemakings, agencies may provide for longer time periods, such as 180 days or more.”4 The Departments did not grant the request.

Although at any time, 30 days would be too short a comment period for such an extensive proposed regulation, this is especially true during the current COVID-19 pandemic, which continues to wreak havoc and cause public health and economic devastation. During the 30-day comment period, the United States saw a surge in new cases and daily infections records day after day,5 establishing itself as the global epicenter of the pandemic and exceeding every other country in the number of positive COVID-19 cases and deaths.6 As a result, across the country, the physical offices of many legal organization—including BDS—were closed, with staff working from home and having to meet with clients, collect documents, and make submission remotely. Notably, the country’s largest immigration court—26 Federal Plaza in New York—has been closed since March 18, and as of the date of this comment is still not open for hearings.7 Against this backdrop, the Departments are not only asking legal organizations to divert resources to carefully review the Proposed Rule and provide meaningful feedback, but more cruelly, during a global pandemic, is forging ahead with its plan to expose even more asylum seekers to uncertainty and potential removal.

For these procedural reasons, the Proposed Rule should be rescinded and, if the Departments seek to re-issue the rule, they should grant a minimum of a 60-day comment period. Moreover, BDS substantively objects to the entirety of the Proposed Rule, given its impact of gutting the asylum system and flouting established law, legal precedent, and international obligations and norms. However, given the limited time allowed for comments, we have not addressed every proposed regulation or provision; our silence regarding a proposed regulations or provision does not mean acquiescence. BDS requests that the Administration rescind the Proposed Rule in its entirety.

B. The Proposed Rule is Inconsistent with Governing Law and Treaties

The Departments may not impose requirements that go beyond or are in conflict with a statute’s text.8 But the Proposed Rule does just that—deviating from unambiguous provisions of governing law and imposing requirements that Congress never contemplated, much less intended.9

The United States asylum system was codified through the Refugee Act (included within the INA) to “reconcile our rhetoric with our law, our national immigration policy and our international treaty obligations so that we could maintain a consistent posture towards the world as a nation with a strong humanitarian tradition and a unique historic role as a haven for persons fleeing oppression.”10 When Congress enacted the Refugee Act, it highlighted “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.”11 The Act sets forth a systematic procedure for admitting refugees of special humanitarian concern to the United States.12 It provides those fleeing persecution and violence with physical safety, a green card and a pathway to citizenship, and the opportunity to reunite with and provide legal status to immediate family members.13

Eligible refugees include “any person who is outside of any country of such person’s nationality . . . and 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.”14 This language tracks almost verbatim the United States’ treaty obligations under the 1951 United Nations Convention Relating to the Status of Refugees (the “1951 Convention”), to which the United States acceded through the 1967 Protocol Relating to the Status of Refugees.15 Indeed, as the Supreme Court has noted, the “motivation for the enactment of the Refugee Act” was the “United Protocol Relating to the Status of Refugees.”16 The 1967 Protocol mandates the principle of non-refoulement: the commitment not to return refugees to a country where they will face persecution on protected grounds, even where potential refugees have allegedly committed criminal offenses.17 By acceding to the Protocol, the United States obligated itself to develop and interpret United States refugee law in a manner that complies with the principle of non-refoulment. The United States is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),18 under which an applicant must be granted CAT if they establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”19

Against a backdrop of a congressional scheme and background principles of international comity, the Departments’ discretion under the INA to establish “additional limitations and conditions” for asylum eligibility must stay within legislative parameters.20 Furthermore, where, as here, the United States is a party to a treaty, Congress must make a clear expression of any intent it may have to abrogate the treaty.21 The Proposed Rule goes well beyond what Congress contemplated when it enacted the current immigration laws and ratified and acceded to international treaties regarding asylum. The Proposed Rule also seeks to “supersede” numerous federal court decisions construing unambiguous provisions of the governing laws. 85 Fed. Reg. at 36265 n.1. As such, the Proposed Rule is “not in accordance with law,” and, if enacted, would be unlawful under the Administrative Procedure Act (“APA”), which provides that agency action shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”22 The Departments must execute the law as enacted by Congress, including the mandated procedures and protections for asylum seekers.

C. The Proposed Rule Would Categorically Bar Legitimate Asylum Claims

An asylum applicant is “entitled, as a matter of due process, to a full and fair hearing on his application.”23 A full and fair hearing requires a “neutral and impartial arbiter[] of the merits of his claim and a reasonable opportunity to present evidence on [his] behalf.”24 Or, as one court explained: “Judges do little to impress the world that this country is the last best hope for freedom by displaying the hard hand and closed mind of the forces asylum seekers are fleeing. Better that we hear these claims out fully and fairly and then make an informed judgment on the merits. This is consistent with our role as judges, and the values of our Constitution demand no less.”25

Under the guise of clarifying standards, the Proposed Rule, instead, would short- circuit any semblance of justice and categorically deny asylum based on broad and poorly defined topics, including domestic violence, gendered violence, and gangs. The broad categories embedded in the proposed regulations limiting the standards for persecution, particular social groups, political opinion, and nexus—discussed below—serve only to stem immigration, rather than weed out frivolous asylum claims.

1. The Proposed Rule Narrows the Definition of Persecution

As mentioned above, under both domestic asylum laws and international refugee- protection principles, asylum must be available to “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and 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.”26

Under current law, persecution means a threat to life or freedom or “the infliction of harm or suffering.”27 Moreover, as the District of Columbia federal district court has held, “the term ‘persecution’ [as used in the INA] is not ambiguous.”28 That is significant because “a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”29

Nevertheless, in disregard of the law, the Proposed Rule seeks to drastically limit the definition of persecution, by heightening the harm required to establish persecution for the purpose of asylum. In particular, the Proposed Rule states that the harm must be “extreme” and that threats must be “exigent.” 85 Fed. Reg. at 36291. Under the Proposed Rule, an applicant enduring harassment, detention, and repeated threats would be at risk of falling short of establishing persecution. Id. at 36280-81. The Proposed Rule also states that “the mere existence of potentially persecutory laws or policies is not enough to establish a well-founded fear of persecution.” Id. at 36280. Rather, according to the Proposed Rule, there must be evidence these laws or policies were widespread and systemic, or evidence that persecutory laws or policies were, or would be, applied to an applicant personally.” Id. This is contrary to current law.

The Departments have not even addressed, much less considered, the vastly different forms of harm experienced by different asylum seekers and the importance of a case-by-case analysis. For some asylum applicants, persecution may consist of constant harassment, intimidation, threats, or acts of violence, or, various such incidents that, cumulatively, constitute persecution. The United Nations High Commissioner for Refugees (“UNHCR”) has explained that whether “prejudicial actions or threats would amount to persecution will depend on the circumstances of each case,” and that, “[d]ue to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.”30

Furthermore, current law requires adjudicators to consider cumulative harm. As the Third Circuit recently recognized, “determining past persecution requires more than considering whether individual incidents are sufficiently ‘extreme’; it requires meaningful consideration of whether their aggregate effect poses a ‘severe affront[] to the [petitioner’s] life or freedom.’” 31 The UNHCR also has specifically noted that “an applicant may have been subjected to various measures not in themselves amounting to persecution” that “may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds.’”32

Contrary to existing law, the proposed regulations also would require an individual to experience severe or exigent harm before seeking asylum or avoiding removal. But such a requirement defies the very purpose of asylum law. “To expect Petitioner to remain idle in that situation—waiting to see if his would-be executioners would go through with their threats—before he could qualify as a refugee would upend the ‘fundamental humanitarian concerns of asylum law.’”33

Finally, limiting what qualifies as persecution puts asylum seekers at risk of being returned to dangerous situations. That abrogates the United States’ obligations under international law. The 1967 Protocol Relating to the Status of Refugees, which binds parties to the 1951 Convention, including the United States,34 mandates the principle of non-refoulement: the commitment not to return refugees to a country where they will face persecution on protected grounds. For all these reasons, the Departments should withdraw their proposed narrowing of the definition of persecution.

2. The Proposed Rule Creates Categorical Bars to a Cognizable Particular Social Group

Applicants for asylum and withholding of removal are required to demonstrate that the persecution they fear is on account of a protected characteristic: race, religion, nationality, political opinion, or membership in a particular social group (“PSG”). 35 Membership in a particular social group was included in the list of protected characteristics to allow the term refugee to capture those who do not fall within the other listed characteristics, but are in need of protection.36 In fact, the UNHCR specifically stated that “[t]here is no “closed list” of what groups may constitute a “particular social group” within the meaning of Article 1A(2)” of the 1951 Refugee Convention, because the term must be read in “in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.”37

A particular social group is one that is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”38 An immutable characteristic is one that cannot be changed or should not be changed, such as gender, sexuality, kinship ties, or a shared past experience. 39 Particularity means that the group is “discrete and [has] definable boundaries—it must not be amorphous, overbroad, diffuse, or subjective.” 40 Social distinction means a group “must be perceived as a group by society. . . . Society can consider persons to comprise a group without being able to identify the group's members on sight.”41

The Proposed Rule creates a categorical list of foreclosed particular social groups. In doing so, the Departments ignore and mischaracterize case law from the BIA and circuit courts, and incorrectly posit that a uniform application of the law is compatible with the case-by-case analysis required by asylum law and the United States’ human rights obligations under international treaties. These categories are unduly broad and lack specificity such that they fail in providing the “guidance” that the Departments purport to intend as the rationale. 85 Fed. R. at 36278. Further, whether an individual asylum seeker is a member of a cognizable PSG is an inherently individualized and fact- specific inquiry.42 The BIA’s precedential decisions require the agency and immigration judges “to determine on a case-by-case basis whether a group is a particular social group for the purposes of an asylum claim. This involves a fact-intensive inquiry as to whether the group is recognized by the particular society in question.”43 It is a violation of due process to categorically foreclose certain groups of people as not constituting particular social groups under asylum law. For example, the Ninth Circuit recently held that the Attorney General “may not reject a proposed social group without considering the evidence in the record that a specific society recognizes the group.”44

Additionally, the Departments argue that many of the barred groups listed are too often defined by the harm they suffer. 85 Fed. Reg. at 36278, n.28. Adjudicators must assess the facts of each individual case to determine whether a proposed group is in fact a cognizable PSG in the applicant’s circumstances. While the persecution at issue in the case cannot be the harm that defines a group, a group can be defined by a past harm. A particular social group can be defined by a harm they endure if “[the group] is singled out for worse treatment than other groups.”45 A particular social group can also be defined by past harm, despite being unable to be defined by present harm. “Upon their maltreatment, it is possible that these people would experience a sense of ‘group,’ and society would discern that this group of individuals, who share a common immutable characteristic, is distinct in some significant way.”46 No group can be disqualified based on one factor, such as harm they suffered. Categorically foreclosing groups from qualifying as particular social groups prevents adjudicators from assessing the individual circumstances of each applicant, and contravenes the stated intentions of the 1951 Refugee Convention. Finally, “even if the group were defined in part by the fact of persecution . . . that factor would not defeat recognition of the social group under the Act. . . We cannot tease out one component of a group's characteristics to defeat the definition of social group” as the Departments attempt to do in the proposed rule.47

a. Presence in a country with generalized violence or a high crime rate

These proposed regulations seem particularly targeted to deny the asylum claims of applicants from Central American and Mexico countries, as the provisions would significantly curtail the ability of those asylum seekers to win protection based on particular social group membership given the conditions in those countries. For example, the Proposed Rule prohibits a favorable adjudication of a PSG claim based on issues unrelated to a particular social group’s cognizability, such as “presence in a country with generalized violence or a high crime rate”—restrictions that appear calculated to target individuals from Central America. 85 Fed. Reg. at 36279. This restriction goes against established caselaw that recognizes presence in a country with generalized violence or a high crime rate is irrelevant to evaluating an asylum seeker’s claim. The Fourth Circuit has explained in at least three opinions that criminal activities of a gang that affect the population as a whole are simply “beside the point” in evaluating an asylum applicant's particular claim.48

b. Past criminal, terrorist, or persecutory activity or associations

Additionally, the Departments propose to foreclose particular social groups based on “past criminal, terrorist, or persecutory activity or associations.” 85 Fed. Reg. at 36279. The Departments attempt to impose “a general rule, untied to any specific country or society, that groups consisting of “former gang members” are insufficiently particularized.” 49 In doing so, the Departments fail to adhere to BIA precedents “disclaiming per se rules and requiring a fact-based inquiry into the views of the relevant society.”50 However, social groups formed on these bases are immutable, socially distinct, and particular, and the Departments offer no support to the contrary, and persecution due to membership in these particular social groups has led to asylum protection.

Moreover, the Departments do not account for their own efforts to maliciously stereotype and falsely label large swaths of people from Central America as “gang members.”51 Immigration judges have found that “US law enforcement labeled gang members” is a cognizable particular social group in some societies as, for example, members of this group “share an immutable characteristic that is socially distinct within Salvadoran society, and defined with sufficient particularity.”52

c. Attempted recruitment by criminal, terrorist, or persecutory groups

The Departments further propose to foreclose particular social groups based on “the attempted recruitment of the applicant by criminal, terrorist, or persecutory groups.” 53 Criminal, terrorist, or persecutory organizations often attempt to recruit members of distinct groups that society perceives as vulnerable.54 These groups include, but are not limited to, unmarried mothers, impoverished boys or young men, teenage girls, and young women.55 These groups of people can be forcibly conscripted into gang membership, drug trafficking, and human trafficking. These groups share immutable, particular, and socially distinct characteristics, such as age, gender, marital status, or skill sets which make members vulnerable to harm.56 These characteristics are the motivating factors, “if not a but-for cause-of the persecution.”57 Social stigma or assumptions are assigned to people with immutable, particular, and distinct characteristics, and it is this stigma that “causes the violence” many asylum seekers flee.58 The above groups are not defined by the harm they suffer, but are defined independently by other existing characteristics that, precisely, make them vulnerable to harm and persecution.

For example, a man BDS represented was granted asylum after he fled a gang trying to forcibly conscript him. He refused to join the gang and, because he resisted recruitment, the gang punished him severely, and almost killed him. After fleeing, he was granted asylum in the United States. He received a work permit, and now works to support himself so that he can study and use his experience to help other vulnerable people. Since receiving asylum, he has connected with community and religious leaders and shares his story with other refugees and asylees to provide emotional support. Despite the severe persecution he suffered and the grave danger he would face if deported, the Departments seek to foreclose claims like his under the Proposed Rule.

d. Private criminal acts of which governmental authorities were unaware or uninvolved

The Departments also propose to foreclose particular social groups based on “interpersonal disputes” and “private criminal acts” of which governmental authorities were “unaware or uninvolved.” 85 Fed Reg. at 36279. When the persecutor is not the government, the government must be deemed “unable or unwilling” to control the persecutor.59 However, this proposed particular social group implies that the standard is now changed from “unable or unwilling” to “unaware or uninvolved.” 85 Fed Reg. at 36279. This is a sudden departure from decades of precedent without any explanation, justification, or acknowledgement of the change.60

Further, case-by-case analysis is necessary to reveal which circumstances are inaccurately characterized as interpersonal disputes. There are many circumstances that, upon case-by-case examination, are not what the Departments claim are “interpersonal disputes.” These circumstances include domestic violence, and violence and threats against members of a family. Lack of reporting to authorities does not diminish an asylum seeker’s claim, but usually reflects fear of retaliation. 61 Adjudicators must have the opportunity to assess these individual claims on a case-by-case basis. Otherwise, those who merit the protections of asylum will be wrongly denied.

Families who face violence or threats at the hands of persecutory groups are also entitled to a case-by-case analysis. Legal precedent has established that a family can be a particular social group:62 “[E]very circuit to have considered the question has held that family ties can provide a basis for asylum We agree; the family provides ‘a prototypical example of a particular social group.’”63 Adjudicators must examine these claims, rather than categorically preclude groups of people in need of protection. For example, a young man BDS represented was granted asylum after his father filed a police report, in part, because of kinship ties, as the son of a man who filed a police report in a country where this was viewed as an act opposing gang rule.

A fact-specific, case-by-case inquiry of individual asylum claims is essential to protecting people seeking refuge in the United States and upholding the United States’ human rights obligations. A list of foreclosed particular social groups, specifically targeting groups of asylum seekers from certain countries, contravenes the stated purpose of the 1951 Refugee Convention.

3. The Proposed Rule Creates Categorical Bars to Political Opinion Claims

Over the last several decades, political asylum has protected people of a variety of political opinions and persuasions, who may or may not have been able to express their opinions and beliefs in their country of origin. A consistently broad understanding of what is “political” in U.S. asylum law has granted protection to many refugees persecuted for their beliefs. As with the Departments’ redefinition of particular social group, the redefinition of “political opinion” is at odds with the INA and repudiates the United States’ longstanding commitment to providing safety to people fleeing persecution and to treating their claims with respect and necessary due process. Moreover, USCIS and federal courts have regularly recognized that “opposition to institutionalized discrimination of women, expressions of independence from male social and cultural dominance in society, and refusal to comply with traditional expectations of behavior associated with gender . . . may all be expressions of political opinion.”64 Federal courts have also recognized that opposition to non-state organizations can constitute political opinion and form the basis for asylum.65

The Departments seek to categorically ban claims of persecution based on “generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations” without additional, stereotypically political, behavior, such as “attending rallies . . . . speaking at public meetings, printing or distributing political materials, [or] putting up political signs,” that could not only put lives at risk, but may also not be accessible to certain vulnerable groups. 85 Fed. Reg. at 36280, n.30. This restriction of political opinion in asylum law departs from a deep-rooted understanding that political resistance is unique to each asylum seeker’s individual circumstances, and the acknowledgement that small acts of resistance can be political and even put an individual in grave danger.66 Circuit courts have recognized that behavior such as resisting sexual assault in a “culture of male-domination” is expressive of a political opinion, and that filing a police report in gang-controlled territories can be expressive of a political opinion.67

For example, a young man BDS represented won an imputed political asylum claim after his father filed a police report in a Central American country, and his entire family was then stalked, threatened, and attacked by gang members. The Departments attempt to foreclose political opinion claims like this one, robbing those in dire need of protection and the chance at asylum in the United States. This young man now lives in safety in the United States, received his work permit, and works to support himself and his family. In this young man’s case, his father filing a police report was not necessarily “in support of the furtherance of a discrete cause related to political control of a state or a unit thereof,” as the Departments propose is necessary for a political opinion asylum claim. 85 Fed. Reg. at 36280. Instead, the father was reporting the murder of his other son. The Departments characterize brave actions like this father took as merely performing a “civic duty” in “reporting crime,” rather than acknowledging that filing a police report can be a political act in opposition to gangs. Id., at 36280, n.30. The immigration judge acknowledged this, and found that this young man and his family were persecuted because of the political opinion that the gangs imputed to the whole family. The Departments seek to foreclose claims such as this one, in which a judge decided this young man was deserving of an asylum grant.

Additionally, the immigration judge in this young man’s case understood that behavior in opposition to gangs can be political, where gangs operate as the de facto government. The Departments seek to foreclose political opinion claims that do not oppose “the ruling legal entity of the state or a legal sub-unit of the state.” Id. at 36280. With this new definition of political opinion, the Departments target asylum seekers fleeing countries where non-state actors operate as the de facto government and foreclose their claims and pleas for protection. For example, in much of Central America and elsewhere, gangs act as the government, and any refusal to cooperate with or accede to the demands of the gang is understood as an expression of opposition to the gang’s controlling authority. In many parts of Central America, governments admit they have lost control of gangs and areas controlled by gangs, and are “unable to provide protection to inhabitants.”68 In areas controlled by gangs, the gangs exercise extraordinary levels of social control, including over who inhabitants may speak with and what about and what they can wear.69 Like a government, the gangs levy taxes on local communities in many areas. 70 In areas controlled by gangs, it is forbidden to dissent against the gangs, including arguing with a gang member, refusing a request to join the gang, or rejecting their sexual advances.71 Resistance to the demands of the gangs is often understood by the gangs as a political act against the them, where refusing to pay extortion, joining religious groups, maintaining neutrality, and refusing to participate in violence are all viewed as expressing a political opinion, for which many asylum seekers are targeted.72 Through the proposed rule, it appears that the Departments are trying to foreclose political asylum claims in opposition to gangs and other non-state actors, targeting and disproportionality impacting Central American asylum seekers.

4. The Proposed Rule Narrows the Definition of Nexus

The INA requires that one of five protected grounds “was or will be at least one central reason for persecuting the applicant.”73 However, by imposing a categorical ban on certain bases of nexus for an asylum claim, the Departments ignore that, under asylum law, these bases for nexus can be “one central reason” among multiple mixed motives for the persecution of an asylum seeker.74 The Departments propose categorical nexus bans under the guise of making nexus determinations clearer. However, asylum should be an inherently fact-specific, case-by-case inquiry, and categorical bans are at odds with the inquiry necessary in asylum cases.

The Departments give insufficient justification or explanation for why the circumstances listed do not meet the nexus requirement of asylum. The circumstances listed in the Proposed Rule include, among others, “personal animus or retribution,” “criminal activity,” and “resistance to recruitment or coercion by guerilla, criminal, gang, terrorist, or other non-state organizations.” 85 Fed. Reg. at 36281. The Departments do not offer any justification for what connects these circumstances, why these circumstances should be specifically listed, or evidence to show that adjudicators are struggling to uniformly apply the nexus requirement. By listing certain circumstances that do not meet the nexus requirement, the proposed rule is contrary to the required case-by-case and fact-specific analysis of asylum, and adjudicators would not be permitted to fully assess the circumstances of each asylum case. Although the proposed rule seems to carve out an exception, in which “additional evidence” or “rare circumstances” may allow for asylum on these bases, the Departments do not provide any examples of what those rare exceptions or additional evidence may be. Id. at 36281, 36282 This sweeping declaration of circumstances that cannot meet the nexus requirement prevents adjudicators from examining cases in detail to extend protection to asylum seekers. Attorneys, legal service providers, asylum seekers, and the public must have the opportunity to understand and examine the reasoning behind the Departments’ interpretation that departs from congressional language and nearly fifteen years of precedent.

Additionally, it is unclear and illogical why “gender” is listed as one of these circumstances. The Proposed Rule seems to confuse particular social groups, or elements of particular social groups such as immutable characteristics, with nexus. The only explanation or elaboration the Departments offer for listing gender is a quote from Niang v. Gonzales, stating that there “may be understandable concern in using gender as a group-defining characteristic” because it is allows for many asylum claims. Id. at 36281. However, this critique and concern do not go to the issue of whether or not someone suffered persecution on account of their gender, which is the question in determining nexus. This critique is instead concerned with how particular social groups are defined, which is not a question for a nexus analysis. Gender has long been affirmed by the BIA and circuit courts as an immutable characteristic in the context of asylum, and a particular social group. However, it is not clear why gender should fall under a precluded “nexus.” Women, transgender people, and gender-nonconforming people around the world are persecuted simply because of their gender identity and nonconformity with traditional gender roles. The Proposed Rule categorically provides that cases where someone has been harmed on account of their gender identity will not qualify for asylum, because it will not meet the nexus requirement. Not only does this ignore that asylum is inherently a fact-specific, case-by-case inquiry, this ban rule ignores the realities that women, transgender, and gender-nonconforming people face around the world. The Departments do not acknowledge these harms and offer no justification for this abrupt departure in protection afforded to asylum seekers.

Further, the Departments propose to make evidence of “stereotypes” inadmissible. 85 Fed. Reg. at 36282. What the Departments attempt to characterize as “pernicious cultural stereotypes” are in fact well-documented, well-researched, widespread attitudes about oppression and the subjugation of vulnerable groups. Id. The Departments have no authority to impose categorical bans on some country conditions evidence and not others, solely because some evidence makes their goal of limiting asylum grants from Central America more difficult.

D. The Proposed Rule Limits the Discretion of Adjudicators To Provide a Full and Fair Individualized Assessment

Under INA 8 U.S.C. 1158(b)(1)(A), an individual who is found eligible for asylum must still show that they merit asylum as a matter of discretion.75 Further, congress provided for an individualized, fact-dependent proceeding where the adjudicator hears the totality of the asylum seeker’s circumstances, balancing any negative factors against the persecution at issue and mitigating evidence.76 And current DHS policy is “to evaluate the entire scope of harm experienced by the applicant to determine if he or she was persecuted, taking into account the individual circumstances of each case.”77

The Proposed Rule upends the decision-making process in several respects that would put asylum claims at risk for minor and seemingly unrelated factors, and prevents immigration judges from exercising discretion to asses claims based on the totality of the circumstances of each individual applicant. In the Proposed Rule, the Departments attempt to exploit the discretion provisions in the INA to create yet additional barriers to asylum and heighten the asylum standard. While asylum is a discretionary benefit and, therefore, corresponds to Article 34 of the Convention,78 the Attorney General’s discretion in establishing asylum procedures is limited by the criteria in §1158(b) and (d) and their legislative history,79 which incorporate international law and legal norms. As such, the Proposed Rule is not a valid exercise of the Attorney General’s discretion.

First, the Proposed Rule sets forth three factors adjudicators must consider as “significantly adverse” when exercising discretion in deciding an application for asylum: (a) unlawful or attempted unlawful entry into the United States, unless fleeing persecution from a contiguous country; (b) failure to seek asylum in at least one other country transited; and (c) the use of fraudulent documents, unless arriving directly from the country of feared persecution without transiting through any other country. This proposed administrative mandate flies in the face of judicial precedents, and the Departments fail to provide a reasoned basis for ignoring those precedents, resorting yet again to conclusory assertions about reducing “strain” on “resources.” The Proposed Rule is also inconsistent with the 1951 Convention,80 which explicitly condemns penalizing an individual for illegal entry or stay, stating that “the seeking of asylum can require refugees to breach immigration rules.”81

Second, the Proposed Rule lists nine additional “adverse” factors for adjudicators to consider, “the applicability of any of which would ordinarily result in the denial of asylum as a matter of discretion.” 85 Fed. Reg. at 36283. If one of those nine factors is present, the Proposed Rule provides that an adjudicator could favorably exercise discretion “in extraordinary circumstances,” defined as national security or foreign policy considerations” or if the applicant shows “by clear and convincing evidence, that the denial of asylum would result in an exceptional and extremely unusual hardship” to them. Id. at 36283-84. Many of the nine factors listed are seemingly minor, particularly in light of the fact that they function to strip asylum from individuals who an adjudicator has already deemed eligible and force the applicant to make a heightened showing of “extraordinary circumstances” or “exceptional and extremely unusual hardship.” The proposed list of nine factors seems to functions as a catch-all intended to heighten the standard for a large number of asylum applications. An applicant’s entire asylum application could be denied in discretion for something as minor as transiting through more than one country.

The nine proposed factors are: (1) spending more than 14 days in any one country prior to arriving in the United States; (2) transiting through more than one country prior to arrival; (3) criminal convictions that remain valid for immigration purposes, including reversals, vacaturs, expungements, or modified convictions; (4) unlawful presence for more than one year before applying for asylum; (5) failure to file federal, state, or local taxes; (6) two or more prior asylum applications denied for any reason; (7) having withdrawn or abandoned a prior asylum application; (8) failing to attend an asylum interview; and (9) failing to file a motion to reopen within one year of changed country conditions.

Each of these factors are problematic, and none are derived from the INA or relevant treaties. Moreover, the Proposed Rule’s mandate that they be considered as “adverse” factors cabins the discretion of immigration judges, contrary to Congressional intent. The Proposed Rule also would turn on its head years of jurisprudence. For decades, the United States has recognized the exceptional situation of asylum seekers, and the Board of Appeals has noted that “in light of the unusually harsh consequences which may befall a [noncitizen] who has established a well-founded fear of persecution, the danger of persecution should generally outweigh all but the most egregious of adverse factors.”82

The first two factors, spending 14 or more days in transit and traveling through more than one other country, are not only irrelevant to an asylum application and contrary to the United States’ obligations and statutes, but they also put at a distinct and irrational disadvantage individuals who are not traveling from Canada or Mexico, or who could not afford to come on a direct flight to the United States. These factors also ignore the realities of people and families who face persecution, who may take longer to reach the United States because of a lack of resources or because they are faced with danger on their journeys.

The third factor, criminal convictions that remain valid for immigration purposes, is unreasonably overbroad because it would trigger an applicant to bear the heightened standard for any criminal conviction. The Departments cite to Matter of Thomas and Thompson, a recent decision holding that any state court postconviction altering of sentences must be based “on a procedural or substantive defect in the underling proceedings” in order to be valid for immigration purposes. 83 (That standard had previously applied only to vacaturs.) The breadth of this proposed factor would have a disparate impact on already vulnerable communities that are at heightened risk for arrest and policing, such as communities of color, and lesbian, gay, and transgender individuals, who thus may be more susceptible to have minor infractions or low-level offenses. As a result of trauma, asylum applicants may have been homeless, in abusive relationships, or have dealt with substance abuse or mental health issues—all of which can lead to arrest and low-level offenses. During an individualized assessment before an asylum adjudicator, an applicant may provide important context for the offense or arrest, and explain the steps taken since. However, under the Proposed Rule, there is no room for such mitigation; a conviction will trigger the heightened standard, and if it cannot be met, they may be denied. Furthermore, a criminal conviction itself does not mean an individual is a danger to the community, or otherwise fails to merit discretion. Not only is a conviction an unreliable predictor of future danger, it is also an unreliable indicator of past criminal conduct because of disparate policing practices and the significant number of people who may plead to a crime for a number of reasons.84

The fourth and fifth factors—failure to file federal, state, or local income tax returns, and unlawful presence of more than one year before applying—are also over- inclusive. Aside from the fact that filing taxes has no connection to whether an individual has been persecuted in her country of origin, many asylum applicants are forced to work in the informal economy because they are not eligible for work authorization. In addition, as a result of recently finalized regulations, the Administration has imposed further limitations on asylum seekers’ ability to obtain work authorization, and those who qualify may be forced to wait at least a year after filing for asylum to qualify for work authorization.85

Many asylum seekers, including the following individuals whom BDS has represented, were granted asylum under the current rules and have become vibrant members of their communities, benefiting from the safety and protection provided by the United States. However, under the discretionary provisions in the Proposed Rule, they may not have qualified for asylum and would be at risk of being returned to their countries of origin to face violence, brutal persecution, and even death.

For example, a young mother we represented from an African country was kidnapped by the military and tortured in prison, for being suspected of supporting separatist fighters and ethnic group. After escaping and going into hiding, she flew to South America and made a long journey through several other countries to present herself at the U.S. border. She did not have the opportunity or ability to apply for asylum in any of those countries, especially as an English speaker without prior exposure to Spanish. Instead, she passed through a series of camps until arriving in southern Mexico, where she was required to wait for weeks at a refugee camp before being permitted to travel to the U.S.-Mexico border. There, she waited for several more weeks before being allowed to request asylum in the United States. After she won asylum based on her imputed political opinion, she has been building community, is employed, and recently moved into her own apartment for the first time. Despite her compelling asylum claim and strong equities as a young mother with no history of criminal or immigration violations, her claim could be denied under the new rule due to the nature of her journey to the United States. Under the new rule, she would have several dictionary factors against her: she did not seek asylum in a third country transited; she spent more than fourteen days in a transit country; and she transited through more than one country.

Similarly, a young gay man we represented from Central America grew up witnessing the violent treatment of gay men in his community, including a heinous murder, and had to hide his dangerous secret to protect his life. He fled to the United States, transiting through other countries to reach the U.S. border. After he fled to the United States, he found that he was able to live openly as a gay man for the first time. An ex-partner in the U.S. was physically abusive, and used to threaten to call immigration on him. After one physical attack, his partner called the police and had him arrested. The police did not speak Spanish, and instead listened only to his partner who spoke English. As a result of this domestic abuse, the young man has a misdemeanor conviction. While in jail, he found out he had a serious medical condition. He did not apply for asylum until after he had been in the United States for more than one year. In removal proceedings, he won asylum based on his sexual orientation, and now has health insurance and the ability to work. Despite being at serious risk of persecution or death if returned to his home country, under the proposed rule he would have several negative discretionary factors and would likely be denied asylum: A criminal misdemeanor conviction; filing after one-year from arrival in the U.S. (in his case, the adjudicator found he met the “changed circumstances” exception to the filing deadline); not seeking asylum in a third country transited; and transiting through more than one country. Under the proposed rule, even a single criminal conviction can be a significant discretionary factor, regardless of the circumstances around the conviction. See 85 Fed Reg at 36284.

If the Proposed Rule is adopted, many more refugees like those described above would be unable to qualify for either asylum. The return of those refugees to their home countries would upend decades of settled refugee law that Congress passed and would violate international treaties that the United States has obligated itself to follow. If the Proposed Rule were to go into effect, the United States would turn its back on those we have a history of welcoming, who have made our nation diverse and strong. As George Washington said, “The bosom of America is open to receive not only the Opulent and respected Stranger, but the oppressed and persecuted.”

E. The Proposed Rule Substantially Narrows the Definition of Torture Under Convention Against Torture Relief

As explained above, the United States is a party to the Convention Against Torture.86 Pursuant to CAT, if the refugee can show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal,”87 they will be granted CAT relief. While they will be ordered removed, DHS will not deport them to their country of origin and they may stay in the United States. CAT is often the relief of last resort for many who face persecution if returned to their country of origin.

Under the proposed regulation, an applicant would have to prove that a government official who has inflicted torture has done so “under color of law” and is not a “rogue official.” 85 Fed. Reg. at 36287. The Proposed Rule, thus, narrows the standard definition of torture, limiting it to pain inflicted by a public official acting in an official capacity or pain inflicting by others when such a public official “was aware of a high probability of activity constituting torture and deliberately avoided learning the truth.” Id. at 36273. Under the Proposed Rule, it is not enough that such “public official acting in an official capacity or other person acting in an official capacity was mistaken, recklessly disregarded the truth, or negligently failed to inquire.” The proposed interpretation of torture is contrary to established legal precedent. For example, the Ninth Circuit has held that requiring refugees to prove that the government is “willfully accepting of” torture “impermissibly narrows Congress’ clear intent in implementing relief under the [CAT]”88 and that “[i]t is enough that public officials could have inferred the alleged torture was taking place, remained willfully blind to it, or simply stood by because of their inability or unwillingness to oppose it.”89 Similarly, the Third Circuit has recognized that “[g]overnmental acquiescence under the Torture Convention has been defined to include governments who are unable or unwilling to protect their citizens from persecution.” 90 Those granted CAT must already establish a higher standard than asylum, and the Proposed Rule would make CAT relief even more difficult to establish. The probable effect will be that individuals will be returned to countries where they are likely to be tortured and killed.

For example, an individual we represented, came to the United States when he was a teenager and, for most of his life, lived in the United States. As an adult, he cooperated with U.S. law enforcement for many years, which resulted in the prosecution of multiple gang leaders from his country of origin. This put him at significant risk of being persecuted if deported back to that country. The immigration judge ruled that he would be killed if deported and granted him CAT relief. Therefore, he has been able to spend time on his family and build the support for his child that he wishes he had growing up. Under the Proposed Rule, he may not be granted CAT relief, and, thus, have had no other options except to be deported to a country where he faced a death sentence and that he had not been to since he was a teen. The Proposed Rule bars CAT relief where torture or death would not be at the hands of, or with acquiescence of, government officials acting in their official capacity. See 85 Fed Reg at 36287. This is the case, even where the applicant has established that the pain and suffering could rise to the severity of torture if returned.

In another example, a bisexual man from an island nation witnessed horrific acts of violence against LGBT people in his country and was scared to be open about his sexuality there. In the United States, he was able to live openly for the first time. He also suffered from a serious cognitive disability. He would have been subjected to torture, both for his bisexuality and cognitive disability, if he had been sent back to the country he was born in. After winning CAT relief, he is experiencing love, safety, and security in the United States. Similarly as above, because his torture would be as a result of his sexual orientation, it would be difficult to show that it would be at the hands of government officials working in their official capacity.

The proposed regulations would also make irrelevant country conditions evidence regarding a country’s law enforcement failings, which federal courts have found to be valid evidence supporting a claim of government acquiescence under the CAT. It would effectively overrule the Third Circuit’s reversal of the BIA’s denial of El Salvadorian man’s application for relief under the CAT, where the man publicly provided assistance to law enforcement against Salvadoran gangs and therefore was repeatedly tracked down by gang members and tortured by them, on the basis that the Salvadoran government’s witness protection program was ineffective and underfunded.91 It would also overrule similar decisions by the Second92 and Seventh Circuits.93

F. The Proposed Rule Unreasonably and Unfairly Expands the Definition of a Frivolous Asylum Application

The Departments impermissibly seek to expand what constitutes a frivolous asylum application and which adjudicator is able to determine an application is frivolous. The Departments propose to expand the definition of “frivolous” applications to include not just fraudulent applications, but also applications “filed without regard to the merits of the claim” or “clearly foreclosed by applicable law.” 85 Fed. Reg. at 36295. At the same time, the Departments acknowledge that “simply because an argument or claim is unsuccessful does not mean that it can be considered frivolous.”94 In Matter of Cheung, which the Departments cite, the BIA cautioned: “We should be loath to quickly attach a label of frivolousness . . . to a respondent’s vigorous and persistent exercise of his legal rights . . . This is especially so when the respondent’s legal actions are based, as in this case, on a claim to refugee status.”95 Despite this admonition, the Departments propose to make it easier to label asylum claims as frivolous and the Proposed Rule does not provide guidelines for judges and asylum officers to distinguish between merely unsuccessful applications and applications “filed without regard to the merits of the claim” or “clearly foreclosed by applicable law.” The Proposed Rule thus creates the risk that an application may be deemed frivolous just because it is unsuccessful.

To justify this broad expansion of frivolousness, the Departments argue that “if an [applicant] does get caught lying or committing fraud, nothing very bad happens to him.”96 However, the INA requires that if ”an [applicant] has knowingly made a frivolous application for asylum …, the alien shall be permanently ineligible for any benefits”97 Asylum applicants whose applications are deemed frivolous are already severely punished.

It is unreasonable to expect unrepresented asylum seekers to articulate the nuances of asylum law, especially when the Departments seek to frequently change it and arrogate due process rights and human rights obligations. Our office routinely meets victims of notario fraud that this Proposed Rule would disproportionately punish. It shocks the conscience to subject victims who have been preyed upon to the harsh penalty under INA § 208(d)(6). Few asylum seekers, even those with significant education, fully understand the many elements of an asylum claim. The Proposed Rule prevents an asylum officer or an Immigration Judge from giving applicants an opportunity to address inconsistencies or issues that could explain the appearance of frivolousness, and instead requires that the adjudicator pretermit asylum applications and bar asylum seekers from any forms of alternate relief.

A man we represented was nearly killed after resisting gang conscription in a Central American country. However, this man courageously filed a police report and testified against the gang that sought to kill him. Because of this testimony, he was targeted by the gang again, and forced to flee his home. He sought refuge in the United States and submitted an asylum application pro se when he was detained. This young man represented himself in his individual hearing and in his appeal at the BIA. When his case was remanded to the Immigration Court, BDS began to represent him, and with the help of his attorneys, he was able to prove he had a meritorious asylum claim, and would likely face death if sent back to Central America. The Departments argue that they seek to expand the definition of “frivolousness” to “to ensure that meritorious claims are adjudicated more efficiently so that deserving applicants receive benefits in a timely fashion.” 85 Fed. Reg. at 36274. However, under the Proposed Rule, meritorious claims like this one could be deemed frivolous or could be pretermitted, resulting in applicants being sent back to harm.

Similarly, the Proposed Rule aims to stretch the definition of “knowingly” in section 208(d)(6) to include “willful blindness.” 85 Fed. Reg. at 36273. Willful blindness does not make sense in the context of the complex web of immigration laws. The overwhelming majority of asylum applicants cannot easily verify whether an application has been “filed without regard to the merits” or is “clearly foreclosed by applicable law. This risk is amplified for applicants who do not have access to counsel, or who retain unscrupulous immigration attorneys. The Departments’ proposed expansion of frivolousness findings thus has no basis in law and would only serve to harm the most vulnerable asylum applicants. For these reasons, the Proposed Rule should not be adopted.

G. The Proposed Rule’s Threatens to Obviate Safeguards Around Confidentiality of Asylum Applications

The Proposed Rule would relax the confidentiality and disclosure rules around asylum applications by allowing the government to disclose the contents of the application for an entirely new set of enumerated reasons unrelated to the asylum application or case itself, inter alia: “(ii) As part of any state or federal criminal investigation, proceeding, or prosecution;” “(ii) Pursuant to any state or federal mandatory reporting requirement;” “(iii) To deter, prevent, or ameliorate the effects of child abuse;” “(v) As part of any proceedings arising under the immigration laws, including proceedings arising under the Act;” “(vi) As part of the Government’s defense of any legal action relating to the alien’s immigration or custody status...” 85 Fed. Reg. at 36288.

The current regulations protecting information from disclosure exist to safeguard applicants from retaliatory measures by government authorities or nonstate actors in the country of origin in the event applicants are repatriated, or to safeguard applicants’ family members who may still be residing in the country of origin.98 As such, current regulations “generally” prohibit disclosure to both domestic and foreign third parties except under “certain limited circumstances.” Such as where the applicant has provided written consent, where interagency arrangements have been established, or where criminal law enforcement agencies or other entities (including other governments’) request for information pertaining to asylum applications be approved by the Secretary of Homeland Security on a case-by-case basis.99

With good reason; asylum applications regularly contain specific information about the activities and involvement of political dissidents and law enforcement cooperators, as well as details of domestic violence, sexual orientation, and gender identities. These are just a few of the types of asylum claims where an individual is at significant risk of retaliation, both if deported back to their home country and in the United States. The Proposed Rule jeopardizes these safeguards by allowing information on an asylum application to be used in public proceedings, which can be reached by the very parties the current confidentiality requirements are meant to shield from obtaining information. Moreover, asylum applications generally contain the most sensitive and traumatic circumstances in an individual’s life, including instances of physical violence and sexual abuse, and medical and mental health conditions and diagnoses. The proposed exceptions to the disclosure provisions are extraordinarily broad and could essentially negate any guarantees of confidentiality. The Proposed Rule does not provide adequate explanation for what the categories mean, or any specific or adequate reason that such broad and seemingly public disclosure is necessary. Further, there are no safeguards built into the proposed disclosure provisions that would protect the public filing of asylum applications, nor does the Proposed Rule contemplate orders to seal or protective orders.

Allowing use of the asylum application in any legal proceeding even where it does not relate to the asylum application at issue, means an individual must balance asserting their rights, with having their most sensitive information made public, information that could further put their life at risk. An individual may need to choose between asserting their constitutional or statutory rights—including as to unconstitutional detention, due process violations, disability accommodations, or even open records—against the knowledge that such action could trigger the public disclosure of confidential, sensitive information contained in their asylum application. This is a fundamentally unfair choice that violates the notions of due process and the right of individuals to seek asylum. Further, allowing asylum applications to be used in a matter of course in federal or statute investigations, including prosecutions, may violate constitutional protections inherent in the criminal justice system.

In particular, the child abuse language at subsection (d)(1)(iv) is exceedingly vague and lacks adequate specificity; it could be interpreted to allow for disclosure to anyone or any entity, whether governmental or private, for nearly any purpose or intent. The mandatory reporting provision at (d)(1)(ii) is similarly overbroad, lacking adequate specificity, and does not reference the federal mandatory reporting statute, 42 U.S.C. 13031(b), or explain how the proposed regulation is consistent with that statute. Increased mandatory reporting often further intensifies racial and socioeconomic disparities in the child welfare system. 100 Child welfare cases started by mandatory reporters can result in children and parents being interviewed without protections, such as counsel, and governmental scrutiny into a family could last months or years and have collateral effects on employment and housing.101 Significantly, the legal bar for a child abuse investigation that would stem from a report or “deter child abuse,” is exceedingly low and can be triggered by mere suspicion. Such conduct could include where a child was briefly left alone in their home because a single parent had to run to the store, or where there was a lapse in babysitting for a working parent.102 Neglect cases have been brought against both parents for having an altercation while a child is sleeping in the other room, where a parent has a substance abuse or mental health issue, or against individuals who are only temporary caretakers of a child. Moreover, the types of families most susceptible to intrusive policing and child welfare supervision are low-income and families of color, which is just another way that this rule will disparately impact asylum seekers from these communities.103

H. The Proposed Rule is Arbitrary and Capricious

As demonstrated above, the Proposed Rule is not the product of “reasoned decisionmaking,”104 and the Departments have not articulated a “satisfactory explanation for its action.”105 Thus, it is likely to be found arbitrary and capricious under the APA.106 The APA’s “requirement that agency action not be arbitrary and capricious includes a requirement that the agency adequately explain its result.”107 To satisfy this requirement, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”108 An agency decision that “fail[s] to consider an important aspect of the problem” or a “relevant factor[],” or that “relie[s] on factors which Congress has not intended it to consider,” must be struck down.109

In this regard, DHS’s unlawful and failed attempt to rescind DACA is instructive, where the Supreme Court found the agency failed to consider the reliance interests of those affected by the change in policy and where the agency’s explanation for the change in policy was inadequate.110 Like DHS in the DACA case, the Departments here have not addressed the reliance interests of asylum seekers. As the Supreme Court recently explained, “[w]hen an agency changes course,” it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’”111 Notably, it is unclear whether the proposed regulations would be retroactive to pending applications. Moreover, the Departments seek to impose a number of essentially categorical bars to asylum, through their proposed changes to the standards for determining a particular social group, political opinion, and nexus without making any mention of the due process interests of asylum seekers or their right to have asylum case heard and receive an independent adjudication.

Nor have the Departments provide a reasoned, non-conclusory explanation for the alleged need to change current policy. When an agency changes current policy, it must address the “facts and circumstances that underlay or were engendered by the prior policy.” 112 It is already exceedingly difficult to win an asylum claim, and the laws, regulations, and processes governing asylum in the United States have become increasingly harsh.113 Asylum seekers must show not only that they have suffered or will suffer persecution if returned to their home countries, but also that the persecution was based on one of five enumerated grounds.114 In doing so, individuals bear the evidentiary burden of establishing eligibility, 115 must corroborate their claims with supporting documentation and evidence (including official documents and affidavits from their home country and medical or physiological evaluations),116 and must be found credible by the adjudicator. In addition, they must demonstrate that they merit a favorable exercise of discretion.117

Notwithstanding all these existing hurdles that must be met for asylum, the Departments assert in conclusory fashion that these changes are required to reduce “meritless” claims. 118 But the Departments fail to address why such claims cannot adequately be addressed under the current regulations. It is not enough to assert— without advancing any evidence in support—that the Proposed Rule will “streamline” the decision-making process and create “operational efficiencies.” 85 Fed. Reg. at 36289, 36290.

This is particularly the case in the context where, since coming to office, the Administration has repeatedly sought to impose additional barriers to the already complex and difficult asylum system in order to stop lawful asylum seekers at the southern border from exercising their right to apply for asylum in the United States. A web of both proposed and enacted policies bar eligible applicants from being granted asylum for a myriad of reasons, including their national origin, manner of entry, the path they took to the United States, or interaction with the criminal justice or child welfare system.119 Another set of policies would make it more expensive to apply and would force asylum seekers to suffer financial distress while they wait for their cases to be heard.120

Even where the Administration has faced challenges and injunctions finding their rules were likely to violate the law,121 they continue to push the same policies in different forms. This Proposed Rule builds on and incorporates many of these unlawful, cruel, and ineffectual policies aimed at stemming Central American asylum seekers from requesting protection. It is against this backdrop—and a larger backdrop of animus against Mexican and Latino immigrants—that the Administration proposes this rule. Thus, it raises substantial equal protection concerns as many of the rules provisions will fall disproportionately on Mexican and Central American individuals. Most importantly, CAT and withholding do not offer the full protections afforded by asylum or allow beneficiaries the security and stability of a pathway to a green card and citizenship. The Rule, thus, has the effect of excluding low-income individuals, communities of color, and other vulnerable populations from full membership in society. A Rule that limits eligible asylum seekers to withholding of removal and CAT protection—and that has a disparate impact on low-income, communities of color, and LGBTQ individuals—would impose a very real harm on asylum seekers who have come to the United States in search of protection and constitute a violation of the United States’ non-refoulement obligation.

For the reasons provided here, BDS requests that the Departments consider these recommendations and immediately halt the implementation of the Proposed Rule. Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your attention and consideration of our concerns.

Sincerely,

/s/ Sonia Marquez

Sonia Marquez

Civil Rights—Immigration Attorney

/s/ Keerthana Nimmala

Keerthana Nimmala

Senior Staff Attorney – Immigration

/s/ Nyasa Hickey

Nyasa Hickey

Director of Immigration Initiatives

***

1 Office of the Federal Register, A Guide to the Rulemaking Process Prepared by the Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (emphasis added).

2 See AILA and Partners Send Letter Requesting Asylum Rule Comment Period Extension (June 18, 2020), aila.org, No. 20070105. (on file with AILA).

3 Id.

4 Office of the Federal Register, “A Guide to the Rulemaking Process Prepared by the Office of the Federal Register,” https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf. (emphasis added).

5 Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/coronavirus/2019- ncov/cases-updates/cases-in-us.html (updated as of July 15, 2020); New infections in the U.S. climb to more than 68,000, a seventh record in 11 days, N.Y. Times, https://www.nytimes.com/2020/07/10/world/coronavirus-updates.html#link-7ee57c33.

6 Johns Hopkins University & Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (updated as of July 15, 2020 at 5:34 p.m.) (showing the U.S., with 3,478,017 cases, having almost twice as many cases as the next highest country, Brazil, with 1,926,824 cases; showing the U.S., with 137,106 deaths, having more than two times as many COVID-19 related deaths as the next closest country, also Brazil, with 74,133 deaths).

7 See EOIR Operation Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir- operational-status-during-coronavirus-pandemic.

8 See, e.g., Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000); see also Huashan Zhang v. U.S. Citizenship & Immigr. Servs., 344 F. Supp. 3d 32, 49 (D.D.C. 2018) (an agency’s decision cannot stand when it “adds an additional requirement . . . not found within the text” of governing law and overturning USCIS decision for that reason).

9 Grace v. Whitaker, 344 F. Supp. 3d 96, 137 (D.C. Cir. 2018) (“If the agency is not entitled to deference or if the agency’s interpretation is unreasonable, a court’s prior decision interpreting the same statutory provision controls.”); see also Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789 (D.C. Cir. 2012).

10 Deborah Anker, The Refugee Act of 1980: An Historical Perspective, In Defense of the Alien 5 (1982): 89-94, https://www.jstor.org/stable/23141008?read- now=1&refreqid=excelsior%3A1060953608aa0bdd30d5d506e1ff6318&seq=1#page_scan_tab_contents.

11 Refugee Act of 1980, Pub. L. No. 96-212, § 101, 94 Stat 102 (1980).

12 Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (citing Pub. L. 96–212, tit. I, § 101(b), 94 Stat. 102 (1980)); H.R. Rep. No. 96-608 (1979) at 12-14 (explaining that by changing the statutory phrase “special concern” to “special humanitarian concern” in what became § 1157(a), the House committee “intends to emphasize that the plight of the refugees themselves, as opposed to national origins or political considerations, should be paramount in determining which refugees are to be admitted to the United States”); see also Pub. L. No. 96-212 § 201 (a) (providing a universal, nondiscriminatory definition of “refugee” closely paralleling that of the1951 Convention, codified at 8 U.S.C. § 1101(a)(42).

13 See generally 8 U.S.C. §§ 1158, 1159.

14 Pub. L. § 201(a), 94 Stat. 102 (codified at 8 U.S.C. § 1101(a)(42)).

15 Convention Relating to the Statute of Refugees, July 28, 1951, 140 U.N.T.S. 1954; United Nations

Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606

U.N.T.S. 268, which the United States acceded to in 1968. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436- 437 (1987); see also I.N.S. v. Stevic, 467 U.S. 407, 426 n.20 (1984) (“As with the asylum provision, the Committee feels that the proposed change in section 243(h) is necessary so that U.S. statutory law clearly reflects our legal obligations under international agreements”) (quoting H.R. Rep. No. 96-608, at 17-18 (1979)).

16 Cardoza-Fonseca, 480 U.S. at 424.

17 Article 33(1) of the Convention.

18 See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(b), 112 Stat. 2681; 84 Fed. Reg. at 33834.

19 8 C.F.R. § 1208.16(c)(2).

20 E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 774 (9th Cir. 2018) (“[w]here ‘Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in [dealing with] aliens,’ the Attorney General may not abandon that scheme because he thinks it is not working well”) (quoting Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 368 (2005)). Indeed, 8

U.S.C. § 1158(b)(2)(C) expressly provides that in establishing “additional limitations and conditions,” the Attorney General must be “consistent with” existing law. Id. at 754.

21 The Supreme Court has further crystalized the avoidance of repeal or abrogation absent clear legislative intent. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (“a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action”); Cook v. United States, 288 U.S. 102, 120 (1933) (“A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.”).

22 See 5 U.S.C. §706(2)(A).

23 Cham v. Att’y Gen. of U.S., 445 F.3d 683, 691 (3d Cir. 2006).

24 Id. (internal quotations omitted).

25 Colmenar v. I.N.S., 210 F.3d 967, 973 (9th Cir. 2000) (Hawkins, J.).

26 8 U.S.C. §1101(a)(42)(A).

27 Antonio v. Barr, F.3d. , No. 18-3500, Slip Op. at 9 (6th Cir. May 19, 2020); see also Matter of Acosta, 19 I&N Dec. 211,222 (BIA 2015).

28 Grace, 344 F. Supp. 3d 96.

29 National Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005).

30 UNHCR Handbook ¶ 52.

31 Herrera-Reyes v. Att’y Gen. U.S., 952 F.3d 101, 110 (3d Cir. 2020) (citation omitted); see Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013) (concluding that applicant suffered “persecution in light of the cumulative effect of multiple instances of physical harm and victimization”); Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007) (“[A]ccumulation of harm from the individual incidents may rise to the level necessary for persecution even though an individual incident may not.”).

32 U.N. High Commissioner for Refugees (“UNHCR”), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees 2, U.N. Doc. HCR/IP/Eng/REV. ¶ 53 (1979, reissued 2019) (“UNHCR Handbook”).

33 Doe v. Att’y Gen. of U.S., 956 F.3d 135, 144 (3d Cir. 2020) (quoting Matter of S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996)).

34 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223,

T.I.A.S. No. 6577, 606 U.N.T.S. 268.

35 INA § 101(a)(42).

36 United Nations High Commissioner on Refugees (UNHCR) 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, May 7, 2002, https://www.unhcr.org/en- us/publications/legal/3d58de2da/guidelines-international-protection-2-membership-particular-social- group.html

37 Id.

38 Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).

39 See Matter of Acosta, 19 I&N Dec. at 233-44.

40 Matter of M-E-V-G-, 26 I&N Dec. at 239.

41 Id. at 240.

42 See, e.g., Ordonez Azmen v. Barr, No. 17-982-AG, 2020 WL 3956250, at *4 (2d Cir. July 13, 2020); Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); see also Grace v. Whitaker, 344 F.Supp.3d 96 (D.D.C. 2018).

43 Ordonez Azmen v. Barr, 2020 WL 3956250 *4 (2d Cir 2020).

44 Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020); see also Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (“To determine whether a group is a particular social group for the purposes of an asylum claim, the agency must make a case-by-case determination as to whether the group is recognized by the particular society in question. To be consistent with its own precedent, the BIA may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity, especially where, as here, it is presented with evidence showing that the proposed group may in fact be recognized by the relevant society.).

45 Temu v Holder, 740 F.3d, (4th Cir. 2014)

46 Matter of M-E-V-G-, 26 I&N Dec. at 243.

47 Escobar v. Holder, 657 F.3d 547, (7th Cir. 2011)

48 Alvarez-Lagos v. Barr, 927 F.3d 236, 251 (4th Cir. 2019); Zavaleta-Policiano v. Sessions, 873 F.3d 241,

248 (4th Cir. 2017); Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011).

49 Ordonez Azmen, 2020 WL 3956250 at *4.

50 Id.

51 See, e.g., Stuck with Suspicion: How Vague Gang Allegations Impact Relief and Bond for Immigrant New Yorkers, New York Civil Liberties Union and New York Immigration Coalition (Feb. 2019), https://www.nyclu.org/en/publications/stuck-suspicion-2019.

52 Unpublished Asylum Decision, 290 Broadway, New York Immigration Court (June 15, 2020).

53 Id.

54 Cece v. Holder, 733 F.3d 662, 672 (7th Cir. 2013).

55 Lagos v. Barr, 927 F.3d 236, 253 (4th Cir. 2019); Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.

2003); Cece, 733 F.3d at 672; Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014); Mohammed v.

Gonzales, 400 F.3d 785, 797 (9th Cir. 2005); Perdomo v. Holder, 611 F.3d 662, 665-667 (9th Cir. 2010);

Matter of Kasinga, 21 I&N Dec. 357, 367-68 (BIA 1996); Fatin v. INS, 12 F.3d 1233, 1239-41 (3d Cir.

1993).

56 Escobar v. Holder, 657 F.3d 537, 545-46 (7th Cir. 2011).

57 Mohammed, 400 F.3d at 798.

58 Sarhan v. Holder, 658 F.3d 649, 655 (7th Cir. 2011).

59 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

60 See e.g., Scarlett v. Barr, 957 F.3d 316 (2d. Cir. 2020); Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015);

Rizal v. Gonzalez, 442 F.3d 84, 92 (2d Cir. 2006).

61 “If I went back, I would not survive.” Asylum Seekers Fleeing Violence in Mexico and Central America, Physicians for Human Rights (Oct. 2019), 20-21, 34, 44, https://phr.org/our-work/resources/asylum- seekers-fleeing-violence-in-mexico-and-central-america/.

62 Matter of L-E-A -, 27 I&N Dec. 581 (A.G. 2019).

63 Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011) (quoting Sanchez–Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986)) (internal quotations omitted); see also, e.g., Swart v. Att’y Gen., 552 Fed. Appx. 922, 925 n.2 (11th Cir. 2014); Radiowala v. AG United States, 930 F.3d 577, 585 (3d Cir. 2019).

64 See the Asylum Officer Basic Training Course, Female Asylum Applicants and Gender-Related Claims (12 Mar. 2009) pp. 27-28; Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987);

65 Alvarez Lagos v. Barr, 927 F.3d 236, 254-55 (4th Cir. 2019) (refusal to acquiesce to gang violence can constitute expression of political opinion); Martinez-Buendia v. Holder, 616 F.3d 711, 716 (7th Cir. 2010) (past persecution by paramilitary group on account of actual and imputed political opinion); Espinosa- Cortez v. Att’y Gen., 607 F.3d 101, 111 (3d Cir. 2010) (petitioners had reasonable fear of persecution based on political opinion imputed by paramilitary group); Cordon-Garcia v. I.N.S., 204 F.3d 985, 992 (9th Cir. 2000) (presumed affiliation with government “is the functional equivalent of a conclusion that she holds a political opinion opposite to that of the guerrillas”); Hernandez Chacon vs. Barr 948 F.3d 94, 104 (2d Cir. 2020) (remanding to the Board of Immigration Appeals to consider whether female applicant’s refusal to acquiesce to gang members was “an expression of political opinion, given the political context of gang violence and the treatment of women in El Salvador.”).

66 Lazo-Majano v. I.N.S., 813 F.2d 1432, 1435 (9th Cir. 1987)

67 Id.

68 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Guatemala, Jan. 2018, at 34, https://www.refworld.org/docid/5a5e03e96.html

69 United Nations High Commissioner for Refugees (UNHCR), “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador,” March 2016, available at https://www.refworld.org/docid/56e706e94.html.

70 Cecilia Jimenez Damary, “Statement on the conclusion of the visit of the United Nations Special Rapporteur on the human rights of internally displaced persons, Cecilia Jimenez Damary to El Salvador 14-18 of August 2017,” 14 – 18 August 2017, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21984&LangID=E.

71 United Nations High Commissioner for Refugees (UNHCR), “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador,” March 2016, at 12, available at https://www.refworld.org/docid/56e706e94.html.

72 Id. at 6.

73 Section 208(b)(I)(i).

74 Archaya v. Holder (2d Cir., 2014); Castro, 597 F.3d at 104; see also Aliyev v. Mukasey, 549 F.3d 111,116 (2d Cir. 2008); Vumi v. Gonzales, 502 F.3d 150,158 (2d Cir. 2007); Uwais v. U.S. Attorney Gen., 478 F.3d 513,517 (2d Cir. 2007).

75 Cardoza-Fonseca, 480 U.S. at 423.

76 Id. Specifically, the Refugee Act provides that individual had the right to apply for asylum “irrespective of immigration status.” See Refugee Act of 1980, Pub. L. No. 96-212, § 208 (codified as amended at § 1158)).

77 Grace, 344 F.Supp.3d at 126 n.13.

78 Cardoza-Fonseca, 480 U.S. at 441 .

79 E. Bay Sanctuary Covenant, 932 F.3d at 758.

80 See Stevic, 467 U.S. at 426 n.20 (“As with the asylum provision, the Committee feels that the proposed change in section 243(h) is necessary so that U.S. statutory law clearly reflects our legal obligations under international agreements”) (quoting H.R. Rep. No. 96-256, at 17-18 (1979)).

81 Convention Relating to the Status of Refugees, July 28, 1951, 140 U.N.T.S. 1954.

82 Matter of Pula, 19 I & N Dec. 467, 474 (BIA 1987).

83 The authority of the Attorney General to decide Thomas & Thompson in the manner that provides support for this rule change may constitute policymaking beyond the scope of his power and contravening principles of administrative law providing that that an adjudication be limited to the facts and law applicable to the case. See 5 U.S.C. § 554(b) (requiring that the parties have notice of “the matters of fact and law asserted.”).

84 John H. Blume and Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, Cornell L. Rev. 100, 157.

85 8 CFR § 208.7(a)(1)(ii).

86 See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242(b), 112 Stat. 2681; 84 Fed. Reg. at 33834.

87 8 C.F.R. § 1208.16(c)(2).

88 Zheng v. Ashcroft, 332 F.3d 1186, 1188-89, 1194 (9th Cir.2003).

89 Ornelas–Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006).

90 Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 n.6 (3d Cir. 2007), as amended (Mar. 6, 2007); see also Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006).

91 Guzman Orellana v. Att’y Gen., 956 F.3d 171, 182 (3d Cir. 2020)

92 Orellana-Rodriguez v. Sessions, 677 F. App’x 12, 14-15 (2d Cir. 2017) (unpublished) (reversing BIA’s denial of Guatemalan man’s application for relief under the CAT, where man was repeatedly subject to gang violence due to his uncle’s anti-gang activity in the army, because—even though the police had helped the man’s family in some ways—the man had submitted country conditions evidence that generally Guatemalan police and government officials are corrupt and complicit in gang activity or other violence).

93 Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183-86 (7th Cir. 2015) (reversing BIA’s denial of Mexican man’s application for relief under the CAT, where man was repeatedly abused by members of a major drug cartel, on the basis of country conditions evidence that police officers routinely collaborate with and protect drug cartels in Mexico and the relevant drug cartel specifically).

94 Matter of Cheung, 16 I & N Dec. 244, 245 (BIA 1977).

95 Id.

96 Angov v. Lynch, 788 F.3d 893, 901-02 (9th Cir. 2015).

97 8 U.S.C. § 1158(d)(6).

98 See Fact Sheet: Federal Regulation Protecting the Confidentiality of Asylum Applicants, U.S. Citizenship & Immigr. Servs. (Oct. 18, 2012), available at https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagemen ts/2012/December%202012/Asylum-ConfidentialityFactSheet.pdf.

99 Id.; see also Letter from Joseph E. Langlois, the Director of the Asylum Division, Office of Refugee Asylum and International Operations, U.S. Citizenship and Immigration Services, to all Asylum Office Directors and Deputy Directors (June 15, 2005), https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/f ctsheetconf061505.pdf (explaining that protecting asylum applicant’s identify or any information that might reveal their identity is of the utmost concern).

100 Mical Raz, More mandatory reporting won’t keep children safe from predators, Wa. Post (May 1, 2018), https://www.washingtonpost.com/news/made-by-history/wp/2018/05/01/more-mandatory- reporting-wont-keep-children-safe-from-predators/.

101 Describing the overly invasive way that child welfare cases can begin: “Caseworkers enter homes, not necessarily showing official documentation or identification indicating who they are and why they are there. Once in the home, they ask a series of questions, some related to the investigation at hand and others not. Parents do not understand that the caseworkers are collecting information that may result in an eventual Family Court petition alleging abuse and neglect, and give them an abundance of information (not always connected to their actual parenting) in hopes that if they are honest, they will be left alone.” The New School, Child Welfare Needs to Have Its ‘Stop-and-Frisk Moment’ (June 27, 2018), http://www.centernyc.org/child-welfare-needs-to-have-its.

102 See, e.g., Family Separations in Our Midst, WNYC (Apr. 17, 2019) https://www.wnyc.org/story/child- removals-emergency-powers/.

103 Poor communities and communities of color are disproportionately impacted by the child welfare system. In New York State, Black children make up 40% of the children in foster care yet make up only 15% of the children in the state, whereas white children make up 25% of the children in foster care and 48% of the children across the state. See New York State CPS, 2018 Monitoring and Analysis Profiles With Selected Trend Data: 2014-2018, at 7 https://ocfs.ny.gov/main/reports/maps/counties/New%20York%20State.pdf. In NYC, despite making up only 23% of New York City’s child population, Black children represent over 52% of foster care placements. New York City Administration of Children's Services Community Snapshots, (2010, 2011, 2013), http://www.nyc.gov/html/acs/html/statistics/statistics_links.shtml; see also NYS OCFS, Disproportionate Minority Representation (DMR) in Child Welfare and Juvenile Justice Systems (Dec. 2015) at 7, https://ocfs.ny.gov/main/bcm/DMR_Section%20Seven%20of%20Grant%20RFP_2015.pdf.

104 See Michigan v. EPA, 576 U.S. 743, 750 (2015).

105 Encino Motorcars v. Navarro, 136 S. Ct. 2117, 2125 (2016).

106 See 5 U.S.C. §706(2)(A) (agency action shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

107 Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995).

108 Encino Motorcars, LLC, 136 S. Ct. at 2125 (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

109 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983).

110 Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1913-15 (2020).

111 Id. at 1913 (quoting Encino Motorcars, 136 S. Ct. at 2126).

112 Encino Motorcars, 136 S. Ct. at 2125-26 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

113 Manuel Roig-Franzia, Immigrants risk it all seeking asylum. The answer is almost always ‘no., Washington Post, July 24, 2019, https://www.washingtonpost.com/lifestyle/style/migrants-risk-it-all- seeking-asylum-the-answer-in-court-is-almost-always-no/2019/07/23/9c161b2e-a3f7-11e9-b732- 41a79c2551bf_story.html; Daniel Connolly, Aaron Montes, & Lauren Villagran, Asylum seekers in U.S. face years of waiting, little chance of winning their cases, USA Today, Sept. 25, 2019, https://www.usatoday.com/in-depth/news/nation/2019/09/23/immigration-court-asylum-seekers- what-to-expect/2026541001/.

114 See 8 U.S.C. § 1158(b)(1)(B)(i).

115 See id.

116 See 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii).

117 See 8 U.S.C. § 1158(b)(2)(A).

118 85 Fed. Reg. at 36290. The Departments acknowledge that the Proposed Rule will make it more difficult for asylum seekers: “The Departments note that the proposed changes are likely to result in fewer asylum grants annually due to clarifications regarding the significance of discretionary considerations and changes to the definition of firm resettlement.” Id. at 36289. In so doing, the Departments fail to recognize the tremendous decrease in the number of asylum applications that would be granted contrary to well-settled extant law.

119 See, e.g., DHS Office of the Inspector General, Special Review - Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy, at 5-6 (Sep. 27, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf; Human Rights First, Barred at the Border: Wait “Lists” Leave Asylum Seekers in Peril at Texas Ports of Entry, at 3 (Apr. 2019), https://www.humanrightsfirst.org/sites/default/files/BARRED_AT_THE_BORDER.pdf; DHS, Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection- protocols; Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration, DEPARTMENT OF HOMELAND SECURITY (Dec. 20, 2018),

https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal- immigration; Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829 (July 16, 2019) (an interim final rule barring asylum to anyone who enters or attempts the United States via the southern border after failing to apply for protection in a third country through which they passed en route); Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act, 84 Fed. Reg. 63994 (Nov. 19, 2019) (interim final rule barring asylum to any applicant who transited through a country with which the United States has entered into certain bilateral agreements); Procedures for Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. 69640 (Dec. 19, 2019).

120 See, e.g., Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 85 Fed. Reg 37502 (June 22, 2020) (final rule removing 30-day period for an initial EAD to be issued to asylum applicants); Asylum Application, Interview, and Employment Authorization for Applicants, 85 FR 37502 (June 26, 2020) (final rule adding multiple new bars to employment authorization for asylum applicants; U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 FR 67243 (Dec. 9, 2020); Acting Secretary of Homeland Security Kevin McAleenan, Remarks to the Council of Foreign Relations (Sept. 23, 2019), https://www.dhs.gov/news/2019/09/23/acting-secretary-mcaleenans- prepared-remarks-council-foreign-relations (stating that DHS would keep families applying for asylum detained at the border).

121 See, e.g.. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020); Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019); Al Otro Lado, Inc. v. McAleenan, 394 F. Supp. 3d 1168, 1200 (S.D. Cal. 2019) (finding that the asylum seekers who have been metered have a cause of action under the INA); Al Otro Lado v. Wolf, 952 F.3d 999, 1003 (9th Cir. 2020) (refusing to apply third country transit ban to those who were subjected to metering).