Comment on proposed changes to procedures for asylum and withholding of removal; credible fear and reasonable fear

Submitted via www.regulations.gov

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, DC 20503

Attention: Desk Officer, US Citizenship and Immigration Services, DHS

Re: RIN 1125-AA94 or EOIR Docket No. 18-0002, Public Comment Opposing Proposed Rules on Asylum, and Collection of Information OMB Control Number 1615-0067

To whom it may concern,

Human Rights Watch respectfully submits this comment to the Department of Homeland Security’s (DHS) Executive Office for Immigration Review on proposed changes to procedures for asylum and withholding of removal; credible fear and reasonable fear, EOIR Docket No. 18-0002, A.G. Order No. 4714-2020, issued June 15, 2020.

Human Rights Watch is a nonprofit, nongovernmental human rights organization. We operate in 90 countries and have been investigating, documenting, and exposing human rights abuses around the world for four decades. We have published numerous reports on the human rights of migrants and asylum seekers within the US immigration system, and on the persecution people have faced because of their race, religion, nationality, membership in a particular social group, or political opinion in countries around the world.

The proposed regulation builds on three years of executive orders, proclamations, and regulations the administration of President Donald Trump has used to undermine the principles of refugee protection that have been enshrined in international law since the close of World War II. Administration policies have already seriously undermined the US asylum system – the proposed regulations would eviscerate it. The proposed rule would radically change long-established definitions and standards under US asylum law, in violation of international law binding on the United States.[1] If implemented, refugees will be sent back to persecution and other serious harm and non-refugees who are entitled to being protected from being tortured will likely be sent to places where they will face the threat of being tortured or killed.

Human Rights Watch therefore urges DHS to withdraw the proposed rule in its entirety.

The proposed rule appears designed to create insurmountable procedural barriers, evidentiary burdens, and qualification standards to prevent three groups, especially, from being able to exercise their right to seek and enjoy asylum in the United States: Central Americans fleeing gang violence; women fleeing domestic abuse; and lesbian, gay, bisexual and transgender (LGBT) people. That said, this regulation would set bars that would make it exceedingly difficult for all categories of people who qualify for and deserve asylum to be recognized as refugees and protected.

1. § 208.1(c) – The proposed rule would radically change the definition of a “particular social group,” making it virtually impossible for a person who is a member of a social group other than the four specified in the refugee definition (race, religion, nationality, and political opinion) from ever qualifying for asylum.

The proposed regulation provides a “nonexhaustive” list of nine “circumstances” that “without additional evidence” would be considered “generally insufficient to demonstrate a particular social group that is cognizable because it is immutable, socially distinct, and particular.”[2] But the list itself includes characteristics that are clearly immutable, socially distinct, and particular.[3] Also, the list of excluded social groups includes people in a country with generalized violence or a high crime rate. While generalized violence never has been a statutory basis for asylum, spelling out its exclusion in regulation signals to immigration judges and asylum officers that coming from countries of generalized violence may be a disqualifying factor when considering asylum claims. Its inclusion is bound to have a prejudicial impact on asylum seekers from Central America.

One of the nine excluded social groups are people involved in “interpersonal disputes of which governmental authorities were unaware or uninvolved.” Human Rights Watch has found that police and other authorities often ignore women who are victimized by domestic abuse and remain “uninvolved” in what the authorities dismiss as an “interpersonal dispute.” For example, an 18-year-old Iraqi woman told Human Rights Watch that her brother forced her to marry a friend of his when she was 14 years old. Her family, the police, and ultimately a local judge refused to help when she told them that her husband beat her and forced her into prostitution. She said that after she finally fled and went into hiding, she thought that a family member might try to kill her. “[It is] normal in my family to kill someone,” she said. “My grandfather killed his sister and my uncle killed his sister.”[4] Because the local police and a judge remained uninvolved in the face of domestic abuse, this proposed rule would deny this victim of social abuse the protection the authorities in her country failed to provide because of their own indifference to the plight of abused women. By dismissing violence against women or LGBT people as simply an “interpersonal dispute” the proposed rule fails to recognize that gender-based violence is a social means to subordinate rather than an individual problem, requiring comprehensive responses, including state measures to comply with obligations to prevent, investigate, prosecute and punish.[5]

Another of the nine excluded social groups are people who have past associations or activities with criminal or terrorist groups. But past activity is an immutable characteristic that cannot be undone; an individual’s personal biographical history cannot be changed. If a gang maintains that a boy who was forcibly recruited into that gang is a member for life, and then as an adult he tried to leave the gang, it would regard him as a traitor. He could not undo his history and would have a reasonable basis to fear for his life. Human Rights Watch has documented cases of people who fled El Salvador as the only way to escape the grip of the gangs who controlled them, who were denied asylum in the United States, and returned to El Salvador where they were killed. For example, “Luis Y,” a former member of the B-18 gang, tried to leave the gang by fleeing to the United States. After Luis was deported from the US in either 2016 or 2017, his cousin told Human Rights Watch that the police in El Salvador killed Luis solely on the basis of his past gang association:

After he was deported back to El Salvador, one day he [Luis] was eating breakfast and the police came to the house and shot him in the head and killed him. The police officer said: “I told you I was going to kill you eventually,” and put a gun to his head and shot him right there on the spot in front of the neighbor woman who used to cook his meals for him. Some of the other neighbors also witnessed this shooting.[6]

The existing US asylum system already too often fails to protect people like Luis, who face serious danger if returned, and the proposed rule would make protection almost completely unavailable.

Similarly, one’s “status as an alien returning from the United States” is on its face an immutable, socially distinct, and particular” characteristic. Past association as a former resident of the United States is a particular characteristic that cannot be changed any more than one’s membership in a family or any other past history the person might have. This regulation could conceivably serve as a basis for denying asylum to someone who was persecuted because of their real or imputed association with the United States by a regime that is hostile to this country, or its culture and values.

People who are targeted for criminal activity because of their perceived wealth or affluence (208.1(f)(v)) would not be recognized as a social group. History is filled with examples of persecution of classes of people based on their perceived wealth or affluence. Under this regulation, the thousands of members of the kulak class who were unlawfully executed following the Russian Revolution or the hundreds of thousands of wealthy and middle class Cubans who fled the Cuban Revolution after being subjected to criminal appropriation of their properties would not have been recognized as persecuted social groups.

2. § 208.1(d) – The proposed rule defines “political opinion” in a way that appears designed to exclude refugees who fear persecution based on their political opinion

The regulation would require that for a “political opinion” to form the basis of an asylum or withholding of removal claim it would have to relate specifically to political control of a government. Human rights defenders persecuted because they called on existing leaders to reform, such as Chinese human rights lawyer Wang Quanzhang, who was imprisoned, held incommunicado for years and allegedly tortured with electric shocks,[7] or Russian journalist Ivan Safronov, who is currently imprisoned in Russia and charged with treason for writing articles for a prominent business newspaper,[8] would be ineligible for asylum in the United States because they had not advocated regime change.

3. § 208.1(e) – The proposed rule redefines “persecution” so that it is limited to exigent situations.

The rule defines persecution as “an extreme concept involving a severe level of harm that includes actions so severe that they constitute an exigent threat.” By dictionary definition a threat that is exigent would need to be immediately and urgently at hand. To qualify, the applicant would essentially need to show that a gun was held to their head. As decades of Human Rights Watch’s work with persecuted minorities throughout the world illustrates, persecution is often a long, grinding discriminatory harm that builds cumulatively with a thousand smaller cuts. Our work for many, many years documenting Myanmar’s persecution of its Rohingya minority shows that years of non-exigent harm were piled on the Rohingya before their mass expulsion in 2017.[9] Members of the Rohingya minority fleeing Myanmar at a time when they were not under an exigent threat, but when they were not allowed to marry, to go to university, to hold professions, to own certain property, or to be recognized as citizens would be individuals who still genuinely had a well-founded fear of persecution. The proposed rule’s definition of persecution as requiring an exigent threat also appears to exclude people who would be eligible for asylum under current law and regulation on humanitarian grounds for having experienced past persecution.[10] By including “because of persecution or a well-founded fear of persecution” (emphasis added) in the refugee definition, the INA explicitly includes both survivors of past and future persecution as being eligible for asylum.[11]

4. § 208.1(f) – The proposed rule creates an unprecedented list of “nexus” grounds for persecution that generally would be excluded as a basis for asylum.

The “nexus” concept in refugee law focuses on whether the “on account of” in the refugee definition connects the person facing serious harm to one of the five protected grounds in the definition. The proposed regulation appears to conflate nexus with one of the five protected grounds, membership in a particular social group. In this section, it quickly adds to the list of nine social group categories that generally will not qualify as a particular social group another non-exhaustive list of eight circumstances that would not provide a “nexus” to a protected ground that would qualify for asylum (with some overlap between the two). The nexus list of eight includes the targeting of the applicant for criminal activity for financial gain based on wealth or affluence or perceptions of wealth or affluence; criminal activity; perceived, past or present, gang affiliation; and gender. Like the section on “particular social group,” the nexus section provides the same contradictory instruction that “without additional evidence, these circumstances will generally be insufficient to demonstrate persecution on account of a protected ground” but “does not foreclose that, at least in rare circumstances, such facts could be the basis for finding nexus.”

The section on nexus in effect represents a repetition of the attack on particular social group as a protected ground for asylum, as many, if not all, of the eight circumstances that the regulation says would not be a protected ground would fall within the scope of a particular social group. Among the eight circumstances that would not provide a nexus for protection are social groups that are widely recognized as cognizable, immutable, and distinct. For example:

Gender (208.1(f)(1)(viii)): Like the protected grounds of race, religion, or nationality, gender is a socially distinct, immutable characteristic in the Acosta[12] sense of being a characteristic that is either unchanging or that someone should not be forced to change. Including gender as a ground of protection does not mean that every woman would be eligible for asylum any more than every member of a persecuted race or nationality, but rather that gender is a basis on which some people are persecuted and for which they should be protected. Human Rights Watch has documented many cases where gender was the central reason a woman was subjected to abuse and on account of which the authorities failed to protect her. A 28-year-old woman from Tajikistan who endured four years of spousal abuse and rape told Human Rights Watch how the authorities in her country ignored and dismissed her when she sought their protection: “After he beat me, I narrowly escaped and went to the city prosecutor’s office covered in blood.” But as she tried to report the violence, she said the prosecutor interrupted, saying, “Aren’t you yourself to blame?” He called her husband, exposing her whereabouts, and told her, “Everything will work out fine. Go home.”[13]

Opposition or resistance to criminal, terrorist, gang, guerilla, or other non-state organizations (208.1(f)(1)(iii) and (iv): The rule would limit situations in which people targeted for their opposition to gangs or armed groups, including their resistance to being recruited, could claim they were being persecuted. Someone opposing ISIS or fleeing forced recruitment by the Taliban would be denied asylum.

5. § 208.1(g) – The exclusion of evidence in support of an asylum claim because it might “promote cultural stereotypes” would threaten the ability of LGBT and women asylum seekers, in particular, from presenting evidence to support their claims.

The regulation would exclude evidence in support of an asylum claim if the adjudicator thought it promoted a cultural stereotype against a country or a person. The background note to the regulation cites then-Attorney General Jeff Sessions’ opinion about “negative cultural stereotypes, such as A-R-C-G-'s broad charge that Guatemala has a ‘culture of machismo and family violence’” as the basis for this provision.[14] That means evidence of persecution – particularly when the applicant is providing evidence of persecutory intent – could be excluded for fear that it could be seen as “promoting cultural stereotypes.”

This could be used to block a huge number of people persecuted on account of their gender, sexual orientation, race or religion from being able to make their case. For example, an adjudicator could throw out evidence from a woman fleeing spousal abuse or a gay man facing a death threat because the adjudicator decided it promoted a cultural stereotype about an individual or a country, such as machismo. It appears that the Trump administration is more concerned about not offending misogynists, homophobes, and racists than about protecting their victims.

Consider the account Fernanda Vallejo, a transgender woman from San Pedro Sula, Honduras, gave to Human Rights Watch regarding the persecution she experienced: “My dad was truly a macho. My every feminine action was reprimanded by beatings – so instead of receiving love, I received beatings...Even though he [my dad] mistreated me, I loved my father. I understood him. To him his last name meant work and respect and in my mind I felt guilty and I asked, ‘God, why did you make me this way?’ I did not want to shame my father.”[15] She speaks of her father as macho, about a culture of shame. Finding this to promote a cultural stereotype, a judge could dismiss the evidence showing the intent of her abuser and of the society that tolerates such abuse.

Human Rights Watch issued a report in 2019 that looked at “bride kidnapping” or forced marriage and domestic violence in Kyrgyzstan.[16] The head of an organization working on bride kidnapping said, “It is typical [for authorities] to say, ‘Oh, it is just another woman complaining about another man.’” Service providers and lawyers said police and judges often dissuade victims from filing complaints, and pressure them to reconcile with their abusers and withdraw complaints. A Bishkek crisis center lawyer said this happens even when she accompanies victims. “Still, the police try to convince the woman not to file a complaint, saying, ‘We have a lot of other cases – severe cases – and just because you got a slap on the cheek, you want to file a complaint, and then you will withdraw it and it will be a waste of our time,’” she said. She said the situation is worse in rural areas, where domestic violence is widespread and victims do not report violence to the police: “Even when they do, it is the investigators who persuade them not to file a complaint, not to press charges.”

If one of these victims sought asylum in the United States under this regulation, evidence in support of their asylum claims based on domestic abuse could be excluded because it promoted a cultural stereotype about bride kidnapping in Kyrgyzstan.

6. § 208.18 – The proposed rule imposes a nearly impossible evidentiary burden on those seeking Convention against Torture protection.

An asylum seeker seeking protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment would have to prove that a government official who has inflicted or acquiesced to torture has done so “under color of law” and is not a “rogue official.”[17] It is unreasonable to expect that a Convention against Torture asylum seeker would have the knowledge and evidence necessary to prove that the government official was not acting as a “rogue” official while committing torture. Although torture is frighteningly common, it is extremely rare for any government to openly acknowledge that it condones torture – which violates the law almost everywhere – by its officials. Once the evidence of torture is irrefutable, most governments will, at most, claim that “bad apples” acted on their own, thereby denying chain-of-command responsibility for a serious international crime. This regulation not only accepts the bad apple excuse on its face, absolving the governments of responsibility, but also denies torture victims protection.

Human Rights Watch has documented countless cases of torture and cruel, inhuman, or degrading treatment or punishment. Our documentation includes survivor accounts of people who detailed the abuses they were subjected to at the hands of authorities who could easily be dismissed as being “rogue officials,” despite their ongoing role as state agents. For example, in 2015, Human Rights Watch extensively documented torture and other serious human rights abuses in Gambia by a paramilitary group known as the “Jungulers,” an unofficial unit of up to 40 personnel largely drawn from the Presidential Guard.[18] Human Rights Watch learned from several former security force members that they believed the Jungulers took direct orders from the Office of the President.[19] In July 2005, Junguler paramilitaries summarily executed over 50 migrants who had been detained after arrival in Gambia. A former Junguler who took part in the operation in which the men were killed told Human Rights Watch that he was ordered to drive the migrants in small groups to a field near Kanilai, the president’s village, where two Jungulers then shot the men in several groups. Despite evidence of official complicity in the Junguler’s actions, a joint UN-ECOWAS fact-finding mission found that the Gambian government was not to blame but that “rogue elements” in Gambia’s security services were responsible for the killings. Under this regulation, a US adjudicator could reject a Convention Against Torture protection claim from a person with a well-founded fear of being tortured at the hands of a group like the Jungulers because they had officially been branded as “rogue officials” even while being largely drawn from the Presidential Guard, and in spite of evidence indicating they were operating with official support.

7. § 208.13(b)(3)(iv) – The proposed rule would create an unreasonable burden on asylum seekers to demonstrate that there is no internal relocation option for them in their home country.

The proposed regulation would establish a presumption that internal relocation would be reasonable if the persecutor is not a government or government-sponsored actor. It places the burden on the applicant to demonstrate by a preponderance of the evidence that internal relocation would not be reasonable. It then excludes “rogue officials” from the definition of government-sponsored actors. By doing so, this section repeats the same error as in the Convention against Torture section: it dismisses the ties between government officials and extrajudicial operatives, such as death squads comprised of off-duty police, who often do the dirty work of persecuting political dissidents and marginalized groups so that the governments who back them and whose interests they serve are able to deny their involvement in human rights abuses. Human Rights Watch has documented death squad activities that appear to operate with some government collusion in the Philippines,[20] El Salvador,[21] Venezuela,[22] and Egypt,[23] among other countries.

The proposed rule also instructs adjudicators to consider “the applicant’s demonstrated ability to relocate to the United States in order to apply for asylum” as part of the internal relocation inquiry. Given that the asylum process is only triggered after an asylum seeker reaches the United States, using the fact that they are able to travel here as a negative factor for an adjudicator to weigh in assessing the applicant’s testimony about the reasonableness of internal relocation essentially means that every asylum seeker will start with this negative presumption.

8. § 208.13(d) – The proposed regulation’s extensive listing of discretionary grounds to deny asylum includes inappropriate and irrelevant factors that pale in comparison to the risk of persecution a person who otherwise would qualify as a refugee would face if denied asylum.

The proposed regulation first lists unauthorized entry or attempted unauthorized entry, unless “made in immediate flight from persecution or torture in a contiguous country”; failure to seek asylum in a country through which the applicant transited; and the use of fraudulent documents to enter the United States as “significantly adverse” factors to the grant of asylum. The first and third of these three points violate Article 31 of the Refugee Convention, which prohibits states from penalizing asylum seekers for illegal entry. The second point assumes that transit countries are able to provide effective protection; Human Rights Watch research has shown that the most common countries asylum seekers transit in the region of the United States, Mexico[24] and Guatemala,[25] are not capable of providing effective protection such that they can presumptively be regarded as safe third countries.

Then, the proposed regulation lists another 10 factors for the adjudicator to consider for denying asylum as a matter of discretion. These include asylum seekers who: 1) spent more than 14 days in any one country immediately prior to their arrival in the United States or en route to the United States; 2) transited through more than one country en route to the United States; 3) would otherwise be subject to one of the criminal conviction-based asylum bars at 8 C.F.R. § 208.13(c) but for the reversal, vacatur, expungement, or modification of the conviction or sentence; 4) accrued more than one year of unlawful presence prior to applying for asylum; 5) failed to timely file or request an extension of the time to file any required income tax returns, 6) failed to satisfy any outstanding tax obligations, or has failed to report income that would result in a tax liability; 7) has had two or more asylum applications denied for any reason; 8) has withdrawn a prior asylum application with prejudice or been found to have abandoned a prior asylum application; 9) failed to attend an asylum interview, with limited exceptions; or 10) did not file a motion to reopen of a final order of removal based on changed country conditions within one year of those changes.

It bears repeating and reminding that a refugee is a person with a well-founded fear of being persecuted. A refugee’s failure to timely file a request to extend their tax return filing or their having spent 15 days in a transit country hardly outweigh the possibility of being severely harmed on the basis of their identity or beliefs.

9. § 208.15 – The proposed rule treats temporary residence in a third country as though it is permanent in order to exclude asylum seekers for being firmly resettled in another country prior to arriving in the United States.

Firm resettlement is one of three durable solutions for refugees that give rise to the cessation of refugee status.[26] The emphasis in the international refugee regime is on “firm” and “durable.” Once a person has firmly resettled, simply put, they have a durable solution and their refugee status ends. They have received permanent, durable protection from another state. The proposed regulation disingenuously treats temporary residence in a transit country as if it were firm, permanent protection if the person could have sought to continuously and indefinitely renew their temporary status there “regardless of whether the alien applied for or was offered such status.” Human Rights Watch has reported on the condition of Afghan refugees in Pakistan who have not received a permanent, durable status but rather a refugee status that provides little real protection, that has to be renewed in yearly increments with the Pakistani government often waiting until the last moment to agree to a renewal with accompanying coercion for refugees to return and extortion and exploitation of those who remain.[27] These refugees are able, finally, to renew their temporary status, but they do not have a durable solution.

10. § 208.13 (e) – The proposed rule would deprive asylum seekers of the opportunity to present their case in person to an immigration judge.

The proposed rule would allow an immigration judge to pretermit an asylum claim and deny the claim without allowing the applicant a hearing or chance to testify, if the judge determines, on their initiative or at the request of a DHS attorney, that the application form does not adequately make a claim.[28] This effectively denies the applicant due process and would be an abrupt change from decades of precedent and practice before the immigration court.[29]

Asylum applicants often lack legal representation, as pro-bono or low-cost legal representation is difficult to find.[30] Applicants are likely to have limited English language skills, and combined with limited access to legal representation, filling out asylum forms correctly is a daunting task with monumental consequences if incorrectly completed. Allowing immigration judges to deny asylum cases without even taking any testimony or looking beyond the asylum application would inevitably lead to meritorious cases being denied and vulnerable asylum seekers being returned to harm. A recent Human Rights Watch investigation documented that at least 138 Salvadorans have,[31] since 2013, been killed after deportation from the United States, and more than 70 others have been beaten, sexually assaulted, extorted, or tortured. [32] Our report found that in many cases the US authorities failed to identify and protect people who deserved protection and whom the United States has a legal and moral obligation to protect; this problem will surely worsen if more procedural safeguards are eliminated:

Adriana J. worked for the Salvadoran police. After being threatened by gangs, she fled El Salvador for the United States, but according to her cousin Irene J., Adriana was detained by US authorities and did not get to apply for asylum presumably because she was rejected after her credible fear interview in the expedited removal screening. Irene believes that Adriana was still in detention in the US in 2015 and deported that year or later to El Salvador. Her death certificate indicates she died in El Salvador from gunshot wounds to her abdomen and skull in 2017. Irene learned from her mother, who lived nearby, that when she went to the cordoned crime scene and spoke with police officers, the officers told her, “The gang members killed her. Three bullets.”[33]

We request that DHS consider these reasons and rescind the above-mentioned rules. These rules represent a radical rewriting of US asylum law and would eviscerate existing asylum protections. If passed, our grave concern is that these rules would deny asylum to many asylum seekers to the United States who have well-founded fears of persecution.

Please contact us if you have questions regarding our comments. Thank you for your consideration.

Sincerely,

Bill Frelick

Director

Refugee and Migrant Rights Division

Human Rights Watch