THE ABC'S OF IMMIGRATION  - INS RELEASES FINAL ASYLUM REGULATION

This week the INS released the final rule implementing the changes to asylum law made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The rule will become effective on January 5, 2001. The regulations apply to all applications for asylum, withholding of removal, and applications under the United Nations Convention Against Torture. What follows is a summary of the new asylum regulations.

Training of asylum officers

Asylum officers are to receive specialized training in international human rights laws, other relevant laws and interview techniques.

Jurisdiction over asylum applications

The Office of International Affairs at the INS has initial jurisdiction over most asylum claims filed by a person in the US or at a US port of entry. The Office also has jurisdiction over credible fear determinations. (credible fear determinations are initial findings made at US points of entry relating to whether a person has a credible claim for asylum). If the applicant is in deportation proceedings when they file they application for asylum, the Immigration Court has jurisdiction over the application. The Immigration Court also has jurisdiction over asylum applications filed before April 1, 1997 if the applicant was a crewmember or was admitted or seeking admission under the Visa Waiver Pilot Program. The Immigration Court also has jurisdiction to review credible fear determinations.

Aliens who are not entitled to a removal hearing will also have their asylum applications heard in Immigration Court. This includes applications filed by the following classes of people:

• Crewmembers, either seeking admission, refused admission, or admitted and overstayed,
• Stowaways found to have a credible fear of persecution,
• Applicants for admission under the Visa Waiver Program, and applicants admitted under that program who have overstayed or committed another status violation,
• People subject to an expedited removal order because of inadmissibility on security related grounds, but only if the INS refers the case to the Immigration Court, and
• People admitted to the US on an S visa, but only if the INS refers the case to the Immigration Court.

People who fail to appear for their asylum hearing will be denied asylum. They will have 90 days in which to file a motion to reopen, unless they can establish that they did not receive notice of the hearing, were in federal or state custody and thus unable to attend the hearing, or that there were other exceptional circumstances that prevented them from attending. Filing a motion to reopen will not stay the removal of the applicant unless an Immigration Judge issues an order granted such a stay.

Form of and filing the application

An application for asylum is automatically deemed to be an application for withholding of removal. In essence, this has the effect of converting applications for asylum filed by people who are not eligible for asylum into an application for withholding.

Information that the INS learns from applications for asylum can be used to initiate removal proceedings and to prove necessary facts in those proceedings.

The application is signed under penalty of perjury and knowingly including false information on an asylum application will subject the applicant to civil and criminal penalties. Also, filing a false application after April 1, 1997 will render the applicant permanently ineligible for asylum, including derivative asylum.

Some aliens are ineligible to apply for asylum, unless they can demonstrate that an exception should be made. These groups are people who can be removed to a third country where they can seek asylum, people who have failed to seek asylum within one year of arriving in the US, and people who have previously been denied asylum. If it appears that the applicant is ineligible, the applicant shall be either interviewed by an Asylum Officer or an Immigration Judge to determine whether the applicant is truly ineligible.

The regulation provides a non-exhaustive list of circumstances in which the applicant will be excused for failing to file an asylum application within one year of arrival in the US.

• Changes in the applicant’s home country
• Changes in the applicant’s situation that have a material effect on their eligibility for asylum
• If the applicant was a derivative on someone else’s asylum application, the loss of the derivative relationship
• Serious illness
• Legal disability
• Ineffective assistance of counsel, in limited cases
• Previous valid nonimmigrant status
• Death or serious illness of the applicant’s legal representative or a close family member
• The INS rejected a timely filed application which was returned to the applicant for corrections

This is not an exhaustive list, and the regulation directs the INS to look at each case individually to determine if the failure to file within one year was reasonable. Language has also been added to make clear that the applicant must be at least interviewed before it can be determined that the application should be rejected because it was not timely filed.

As a general rule, asylum applications are to be filed with the asylum office having jurisdiction over the applicant. Applications for asylum can be filed with another asylum office if the applicant has received permission from the office to do so, or if the applicant was formerly a derivative of someone else’s application but is no longer eligible for such status. The application should be filed with the Immigration Court if the applicant is in removal proceedings.

Duties to asylum seekers in INS custody

If an alien in the US indicates that they want to apply for asylum, the INS must supply them with the necessary forms and information. However, if the alien is in custody pending a credible fear determination, the INS is not under a duty to provide the forms and information, but may do so upon request. If the asylum seeker is a crewmember, the Service is to provide forms and information, which must be submitted by the crewmember within 10 days. The crewmember is to be detained unless there are emergent circumstances that call for parole.

Confidentiality of asylum applications

The information contained in an asylum application is confidential and may not be disclosed without the permission of the applicant. There are, however, exceptions to this general rule. Information can be used for statistical purposes, criminal and civil investigations, and to defend against claims that the INS has failed to adjudicate the application.

Employment authorization

Asylum applicants, other than other convicted of an aggravated felony, are eligible for an employment authorization document 150 days after the application was filed, or as soon as the asylum application is approved. If the application is denied, or if the applicant fails to appear at the asylum hearing, the applicant cannot receive work authorization. Once an asylum seeker is work authorized, the INS is to renew the authorization throughout the adjudication of the application. If the application is ultimately denied, work authorization is terminated either 60 days after the denial or when the work authorization document expires, whichever is longer.

Limits on travel abroad

An asylum applicant who leaves the US without obtaining advance parole is deemed to have abandoned the application. If the applicant has advance parole and travels to the country of claimed persecution is deemed to have abandoned the application unless they can establish compelling reasons for the return.

Interviews before asylum officers

The interview is to be conducted in a non-adversarial manner, and is to be in private unless the applicant requests otherwise. The applicant may be accompanied by an attorney and witnesses, and may support affidavits and documentary evidence. The asylum officer has the authority to question the applicant and witnesses. If the applicant or witnesses do not speak English, the applicant must provide an interpreter. If an attorney represents the applicant, at the end of the interview the attorney may make a statement on the evidence presented. The asylum officer is to tell the applicant that they must appear in person to obtain the decision on the application.

Failure to appear for interview

If the applicant fails to appear for the asylum interview, the application will be dismissed. The same is true for failure to comply with fingerprinting requirements. These failures can be excused if the applicant did not receive the necessary notices, or for other exceptional circumstances.

State Department comments

The INS is to forward the completed asylum application to the State Department. If the State Department desires, it can provide a country condition report as well as an assessment of the applicant’s assertions about the conditions in the country. Asylum officers and Immigration Judges may also request specific comments about the applicant from the State Department.

Reliance on information not provided by the applicant

In making a decision on an asylum application, the adjudicator may rely on material from any credible source. However, this does not mean that the applicant is entitled to discovery of this information. They may, however, request the information through a Freedom of Information Act request.

Establishing asylum eligibility

The applicant has the burden of proving he or she is entitled to asylum. Credible testimony from the applicant is sufficient to prove this without requiring any corroborating evidence.

If the applicant establishes that they were subject to persecution in the past, they are entitled to a presumption that they have a reasonable fear of persecution if returned home. The final regulation makes clear that to rebut this presumption, the INS must show a "fundamental change in circumstances," which can include both changed country conditions and changes personal to the applicant.

If the applicant does not demonstrate past persecution, but does establish a well-founded fear of future persecution, and that there is a reasonable possibility that they will suffer persecution if returned, they are eligible for asylum. If the applicant could reasonably resettle in another area of the country and avoid persecution, there is no well-founded fear of future persecution. In cases where the applicant has proved past persecution, the INS must prove by a preponderance of the evidence that resettlement is reasonable. If the applicant did not establish past persecution, the applicant has the burden of proving that resettlement would not be reasonable. The applicant does not have to prove that they will be singled out for persecution if they establish that there is a general pattern of persecution of people in their position.

Applicants who are found ineligible for asylum either because of the possibility of resettlement in a third country, filing past the one-year deadline, a previous denial of asylum, having participated in persecution, having been convicted of a particularly serious crime, security risks, or firm resettlement in a third country before seeking asylum are eligible for withholding of removal and protection under the United Nations Convention Against Torture.

Approval, denial, referral or dismissal of the application

An Immigration Judge has discretion to grant or deny asylum to a person who qualifies as a refugee.

If the application was before an asylum officer, the asylum officer has the authority to grant asylum. If the asylum officer denies, refers or dismisses the application and the applicant is either inadmissible or deportable, the application is to be referred to an Immigration Judge. If the applicant is in valid status, the asylum application is to be denied. If the applicant was paroled into the US and the grant of parole has expired, and the applicant is inadmissible by reason of having made false statement to obtain an immigration benefit or entered the US without proper documentation, the application is to be referred to an Immigration Judge if the applicant demonstrates a credible fear of persecution. Applicants who are inadmissible on any other ground are to be referred to an Immigration Judge.

If the applicant is granted asylum, the grant is effective for an indefinite period, but is subject to termination if it is later determined that the applicant was not eligible for asylum or obtained the grant of asylum fraudulently.

Firm resettlement

An asylum applicant is considered to have firmly resettled in a third country if they obtained any offer to reside there permanently. The applicant can show that they were not firmly resettled by showing that they went to the third country only to escape persecution in their home country and that they stayed there only as long as was necessary to make travel arrangement, or that the conditions of their residence there were so restrictive that they were, in fact, not resettled.

Withholding of removal

The only time an asylum officer must consider withholding of removal is when the asylum applicant seeks asylum because of coercive population control methods but is not eligible because of the annual limits on such asylum grants. Immigration Judges may consider granting withholding of removal in all cases.

The general standards for granting withholding of removal are the same as those for granting asylum.

Effect of grants and terminations of asylum on removal proceedings

A person granted asylum or withholding of removal cannot be removed unless the grant of asylum is terminated. An asylum officer may terminate asylum he granted if it is determined that there was fraud in the application, conditions in the home country have so changed that there is no longer a threat of persecution, or if it is determined that the applicant was not initially eligible for asylum.

If the grant of asylum or withholding of removal is revoked, the INS can institute removal proceedings.

Credible fear determinations for crewmembers and applicants inadmissible by reason of having made false statement to obtain an immigration benefit or entered the US without proper documentation

Credible fear interviews are conducted by asylum officers. These interviews are to be non-adversarial and conducted in private. The asylum officer must ensure that the applicant has received information about the credible fear interview process. The applicant may consult with an attorney or other representative prior to the interview, and that representative may be present at the interview. If the applicant does not speak English, the asylum officer shall arrange for an interpreter. There is to be a record kept of the interview, and at the end of the interview, the asylum officer shall review the record with the applicant and provide the applicant with an opportunity to correct any errors.

The asylum officer is to create a written record of the credible fear determination, including the facts relied on in reaching the decision. If the applicant demonstrates a credible fear but appears ineligible for asylum, the asylum officer is to refer the case to an Immigration Judge. Any decision made by an asylum officer is not final until a supervisor reviews it.

If the asylum officer makes a positive credible fear determination, the applicant is to be notified that they are to receive a full asylum hearing. If the credible fear determination is negative, the asylum officer is to inform the applicant of the opportunity to have an Immigration Judge review the finding. If the applicant wants such a review, they are to be detained. If they do not request a review, they are to be placed in expedited removal proceedings.

The Immigration Judge’s review of the negative finding is to be based on the entire record gathered through the credible fear hearing, and a second interview between the applicant and the Immigration Judge. If the Immigration Judge agrees with the negative finding, the INS is authorized to begin removal proceedings. This decision is final and cannot be appealed. If the Immigration Judge disagrees with the initial finding and believes that the applicant does have a credible fear of persecution, the INS is authorized to being removal proceedings during which the applicant may file a formal application for asylum.

Reasonable fear of persecution hearing for aggravated felons and applicants found in the US after being deported

Upon the issuance of a final removal order, people covered in this section are to be referred to an asylum officer for a reasonable fear determination. The interview is to be non-adversarial and private. The applicant may be represented by an attorney, and may present documentary evidence and witnesses. If the applicant cannot speak English, an interpreter is to be provided by the INS.

If the applicant establishes a reasonable fear if they show that there is a reasonable possibility that they will face persecution if returned home. If a reasonable fear is established, the asylum officer is to refer the case to an Immigration Judge for a hearing on withholding of removal. Any decision made by the Immigration Judge can be appealed to the Board of Immigration Appeals.

If the asylum officer determines that there is no reasonable fear, the asylum officer is to issue a written decision and ask the applicant if they wish to have the determination reviewed by an Immigration Judge. If the applicant does request such review, the Immigration Judge is to make a decision within 10 days. The decision is to be based on the record created in the reasonable fear interview. If the Immigration Judge agrees with the negative decision, there shall be no appeal and the alien shall be placed in removal proceedings. If the Immigration Judge finds that the applicant does have a reasonable fear, the applicant shall be allowed to file a formal application for withholding of removal that the Immigration Judge will then adjudicate. Any appeal of this decision is with the Board of Immigration Appeals.