On December 11, 2020, the Departments of Homeland Security (DHS) and Justice (DOJ) issued a final rule tightening the regulations governing asylum, withholding of removal, and protections under the Convention Against Torture. Despite more than 87,000 mostly negative comments, the final rule generally adopts a proposed rule issued on June 15, 2020, with few substantive changes.
The final rule provides that individuals found to have a credible fear will have their claims adjudicated by an immigration judge within the Executive Office for Immigration Review (EOIR) in “streamlined proceedings” and specifies the standard of review that applies. The final rule also amends the regulations related to the standards for adjudication of applications for asylum and statutory withholding, and revises the definition of “frivolous” as applied to filing an asylum application, among other things.
The final rule provides several adverse factors that will “ordinarily” result in asylum denials as a matter of discretion. Among those discretionary factors are missed deadlines for paying taxes, spending more than 14 days in any one country that permitted applications for similar protections, unlawfully entering or attempting to enter the United States “unless such entry or attempted entry was made in immediate flight from persecution or torture in a contiguous country”; and transiting through more than one country before arriving in the United States.
According to some commenters, the rule will severely restrict the ability of people fleeing persecution to apply for asylum in the United States and will make it very difficult for a variety of groups, such as those facing persecution on the basis of gender or sexual orientation, to obtain asylum. Also, the rule allows immigration judges to deny asylum applications without a hearing if they lack certain evidence, which could harm applicants without a lawyer.