Comment on Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
July 15, 2020
Human Rights First submits these comments in response to the Department of Homeland Security’s (DHS) and Executive Office for Immigration Review’s (EOIR) Notice of Proposed Rulemaking published in the Federal Register on June 15, 2020, by which the agencies propose to rewrite decades of asylum law to create new restrictions on eligibility for protection in the United States. In violation of U.S. and international law and settled principles of refugee protection, the proposed rule seeks to profoundly rework U.S. asylum law in a way that will result in countless refugees being returned to danger. The proposed rule would render much of U.S. case law and the specific language used by Congress in the relevant statutes meaningless.
The proposed changes would, for instance, ban from asylum, or deny asylum to, refugees who suffered brief detentions or escaped their persecutors before threats could be carried out, transited through other countries on their way to the United States, crossed into the United States between ports of entry, or were unable to precisely articulate the legal parameters of their persecuted social group at their hearings. The proposed changes would certainly lead to denials of asylum to protestors from Hong Kong, people who risked their lives to oppose activities of terrorist, militant, criminal or other armed groups that control territories, victims of religious persecution forced to give up the practice of their faith, women targeted for honor killings, forced marriage or severe domestic abuse, and refugees persecuted due to their sexual orientation or gender identities. The rule would, moreover, separate many refugee families through its asylum denials; leave refugees without a route to integration and naturalization by improperly blocking refugees from asylum (evading both the route created by Congress and the Refugee Convention’s direction to states to encourage such integration and naturalization); block asylum seekers from due process, removal hearings and other forms of immigration relief; allow adjudicators to deny asylum without ever hearing an asylum seeker’s testimony; and illegally raise the credible fear screening standard set by Congress. The rule would also deport torture survivors back to torture.
In a rare public statement criticizing U.S. proposed regulatory changes, the UN High Commissioner for Refugees (UNHCR) has expressed serious concerns that the proposed rule is “a departure from humanitarian policies and practices long championed by the United States.” We agree.
Human Rights First strongly opposes this proposed rule and urges the agencies to abandon it. Through our pro bono refugee representation program, Human Rights First and our volunteer lawyers see firsthand how difficult it already is for asylum seekers to be granted protection in the United States. If the provisions of this proposed rule had been in place, many of our refugee clients, who are now asylees, would have been denied asylum or permanently separated from their families. And the proposed rule, if codified, will result in the deportation of countless future asylum seekers who have faced grave violations of their human rights and qualify for asylum under the Immigration and Nationality Act (INA).
In the supplementary information to the proposed rule, the agencies mischaracterize asylum laws as “an expression of a nation’s foreign policy” and “an assertion of a government’s right and duty to protect its own resources and citizens.” In fact, the Refugee Act of 1980 “was a clear statement of intention of the United States Congress to move away from a refugee and asylum policy which, for over forty years, discriminated on the basis of ideology, geography and even national origin, to one that was rooted in principles of humanitarians and objectivity.”
When it enacted the Refugee Act of 1980, Congress intended to eliminate such biases in U.S. refugee and asylum determinations and bring our country’s asylum laws into accordance with U.S. treaty obligations. The 1951 Convention Relating to the Status of Refugees (Refugee Convention), drafted in the wake of World War II, protects refugees from return to persecution, encourages their integration and naturalization and prohibits states from penalizing them for illegal entry or presence. The United States helped lead efforts to draft the Convention and ratified its Protocol, legally binding itself to the Refugee Convention’s provisions.