Thread by @NicoletteGlazer

If the immigration #shitstorm is not apocalyptic enough by now, DHS & DOJ have new joint proposed reg to change credible fear process & expedite 235b to deport asylum seekers even faster ... and dipping into Brand X to override unfavorable precedent.
s3.amazonaws.com/public-inspect…

The Proposed Asylum Rule is draconian in scope and reach.

1/ It seeks to eliminate application of sec 240 protection to those found to have credible fear of persecution, a reasonable possibility of persecution, or a reasonable possibility of torture are never placed in reg Removal Proceedings but get asylum/withholding-only process

2/ It appears that the goal is to eliminate the need for IJ determining the issue of admissibility and opportunity to seek any other form of relief. But it also eliminates in the process (or at least attempts) to eliminate bond all together and instituting a automatic detention

"The Department of Justice proposes to remove and reserve 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR 1235.3, and 8 CFR 1235.5."

3/ The PR raises and sets "reasonable possibility" (rather than the current "significant possibility") of establishing entitlement to relief as the standard of proof for both statutory withholding and Torture-Related fear determinations in 235b proceedings

4/ Pretending to keep the standard for cred fear same as before: "Under this rule, during “credible fear” screening interviews, AZ officers would consider whether aliens could establish cred fear of persec, reasonable possibility of persec, or reasonable possibility of torture."

5/"assessing a “reasonable possibility of persecution” would involve considering whether there is a reasonable possibility that the alien would be persecuted such that the alien should be referred to a hearing in immig court to adjudicate eligibility for statut withholding" claim

6/ It grafts a “more likely than not” standard at the onset to be decided by the "screening" azylum officers!!! There is a reason why AZ officers are only entitled to adjudicate *asylum claims* when a person applies affirmatively w USCIS asylum office!!!! Oh but who's counting.

7/ "To be eligible for asylum under section 208 [] an [non-citizen] must ultimately prove a “reasonable possibility” of persecution upon return to his or her country.
Tranaslation: Bye Cardoza-Fonseca! and 10% chance of persecution ....

8/" on the other hand, to be eligible for either statutory withholding of removal or protection under the CAT regs, an alien must ultimately prove a “clear probability” of
the relevant type of harm—i.e., that the harm is more likely than not to occur—upon return to country."

9/ You know a Rule is doomed from the start when it needs to have this explanation: agencies "seek to make technical edits by using the term “reasonable possibility” as the legal standard & using “reasonable fear” only to refer to proceedings under 208.31 & 1208.31. ...

10/... Use of the term “reasonable possibility” rather than the term “reasonable fear” when discussing statutory withholding of removal & CAT protection screening determinations under 8 CFR 208.30, 1208.30, 1003.42 will prevent confusion over which type of analysis is at issue."

11/ It sure cleared it all up!

12/ "Determining a reasonable possibility of persecution does not rest on the statistical possibility of persecution, but rather on whether the applicant’s fear is based on facts that would lead a reasonable person in similar circumstances to fear persecution."

13/ There is more: In proposed 208.30(e)(5) "DHS would require asylum officers to determine" if the applicant is subject to any statutory bars to asylum including firm resettlement and particularly serious crime. WTF!

14/ I'm too grossed out but if I understand the plan: if a screening officer (CBP most likely) determine that a bar to asylum & withholding applies, the applicant must meet the burden under CAT to get placed in these new withholding only proceeding ...

15/ ... would have opportunity to raise whether he or she was correctly identified as being subject to the bar(s) to asylum & withholding of removal and also pursue protection under the CAT regulations."

But if no CAT screening burden met, then negative all across=removal.

16/ If Im remotely correct in reading this, the end result will be that probably less that 1-2% of all screened applicants will ever get in front of an IJ.

17/ Further ELIMINATING all due process proposed rule seeks in 208.30(g)(1) "to treat an [applicant]’s refusal to indicate whether he or she desires review by an immigration judge [of a negative crdib/reasonabl possibility determination] as declining to request such review.

18/ Now refusal to answer is treated as a request to review and is sent to IJ. Eliminating it, would for all purpose end review. Most ppl hardly understand what is going on even if they have all mental capacities!!!

19/ Major changes are proposed for what will be considered "frivolous asylum application".

20/ 1st it will changes the reading of“knowingly” to require either actual knowledge of frivolousness or willful blindness toward it. "Willful blindness" to mean appl was aware of high probability that his/her application was frivolous & deliberately avoided learning otherwise.

21/ 2nd it broaden the meaning of 'frivolous': "knowingly made, an asylum application premised on false or fabricated evidence, unless it would be granted without the fabricated evidence, may also be found frivolous"

22/ It then adds the following: "Consistent with the concept of frivolousness as encompassing claims that are patently
without substance or merit, an application, if knowingly made, would also be considered frivolous if applicable law clearly prohibits the grant of asylum."

23/ This is what they really want. Allow a easy finding of frivolousness because it is foreclosed by current and/or *new* law or precedent and it allows screening officers to make the finding without the need to refer to an IJ for determination.

24/ The only safety valve is that if a person has "no lawful status" a frivolous asylum application finding made by the screening officer (without a referral) it will not be a basis for an absolute ban (the immigration death penalty).

25/ This new definition of frivolous specifically targets applications filed in order to get placed in 240 proceedings: "if knowingly made, an application filed without regard to the merits of the claim would be considered frivolous."

26/ The regulation also makes clear that no additional warning beyond the initial one provided is necessary.

27/ In making these sweeping changes the proposed regulations quote sever times Kozinski's gratuitous venting about how rampant is immigration fraud from Angov case, which I miserably lost before the 9th Cir in a 2-1 decision. What is not clear is that the case had nothing to do

28/ ... with a frivolous application and neither the IJ or BIA ever made any determination or finding of fraud. It was a 'overseas investigation' report type of case where a national of the country of origins [a former cop employed by the US Embassy] allegedly went to the police

29/ ... department to inquire if two subpoenas issued for the applicants were issued by the prosecutor. The answer by the prosecutor (police deprt) was not 'this is fake' but that the tel number and rooms in the subpoenas issued 5 years before were not found in the dept.

30/ Kozinski was fuming that neither the IJ or the BIA made findings of fraud so he decided to put in generalizations that had absolutely no basis in either the facts or the record in the case.

31/ But back to the Proposed Asylum Regulations:

32/ DHS/DOJ propose to fully implement the equivalent to a Twombly Rule 12(b)(6) failure to state a claim approach to asylum application: on written motion by DHS or sua sponte by IJ --after a notice to appl-- application can be pretermitted if legally insuficient i.e. DV claim

33/ No need to hold an evidentiary hearing or get testimony if the I-589 shows on its face no actionable claim. But at the difference of a 12b6 it does not state that all factual allegations will be deemed true.

34/ It then attempts to "define" PSG by excluding memberships based on wide and generalized associations or factors in an attempt to eliminate claims that are no based on the other specifically mentioned on account grounds. Basically eliminating PSG as a basis for asylum

35/ "the substance of the alleged particular social group,
rather than the specific form of its delineation, will be considered by adjudicators in determining whether the group falls within one of the categories on the list [of per se prohibited definitions of PSG]"
Anyone?

34/ It also takes a 'set in stone' approach to definition of PSG:
* had to define it applic or record
* waive re-defining on appeal
* waive MTR based on "allegations related to the strategic choices made by an alien’s counsel in defining the alleged particular social group."

35/ In essence it is proposing to impose a blend of a res judicata & collateral estoppel & prohibition vs splitting of claims by precluding "raising of claims that could have been brought in a prior proceeding"

36/ The proposed rule also seek to entirely redefine the contours of 'political opinion' as a ground for asylum: "a political opinion involves a cause against a state or a political entity, rather than against a culture"

37/ "Departments propose to define political opinion as
one expressed by or imputed to an applicant in which the applicant possesses an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state or a unit thereof."

38/ Clear effort to eliminate re-casting a prohibited PSG claim into a political opinion in the context of gangs/cartel/civil war/extortion type of claims.

39/ It then attempts to redefine 'persecution'. I honestly, did not think possible that they would go there: "the mere existence of potentially persecutory laws or policies is not enough to establish a well-founded fear of persecution."

40/ It defines persecution as requiring "an intent to target a belief or characteristic, a severe level of harm, and the infliction of a severe level of harm by the government of a country or by persons or an organization that the government was unable or unwilling to control."

41/ Then it adds: "severe level of harm" is such "that includes actions so severe that they constitute an exigent threat." WTF!!!!!!

42/ If not enough had been done with the prior "re-definition" of asylum as we know it, under "nexus" it lists 8 "circumstances" that will not result in grants, including gender, extortion, declining recruitment from gang/cartels, interpersonal animus, gang affiliation.

43/ As w prior sections each layer of restriction is included in order to categorically eliminate types of claims by focusing on factual allegations and then elevating those facts into per se exclusions.

44/ Under "Evidence based on stereotypes" it includes this gem: For purposes of adjudicating an application for
asylum/withholding of removal, evidence promoting cultural stereotypes about an individual or a country,
including stereotypes based on race, religion, nationality, ...

45/ ... gender, and offered to support the basis of an alleged fear of harm from the individual or country shall not be admissible in adjudicating that application."

Wait what!

Evidence is inadmissible coz it will lead to a favorable result!

45/ The corporate defense bar, if they ever knew about this, will be polishing their lobbying shoes, so to speak, to get this puppy into circulation and part of Civil Rules of Evidence!

46/ Then we have revisions to 208.6: it allows disclosure of asylum appl & anything in it/in support of it:
*Pursuant to any state or federal mandatory reporting requirement [so that Ken can be claiming that a deportee X did say or claim Y in appl]

47/ and "As part of the Government’s defense of any legal action relating to the alien’s immigration or custody status including petitions for review filed in accordance with 8 USC
1252" [OIL can file anything & agency can argue anything about child/relative of asylee]

48/ Specifically permits sharing of information in entire asylum file between employees of Govt agencies and get this! if "US Govt employee or contractor has a good faith & reasonable belief that disclosure is necessary to prevent the commission of a crime,...

49/ ... the furtherance of an ongoing crime, or to ameliorate the effects of a crime."

Mmm what?

So USCIS lockbox mailroom contractor w "good faith belief" and post an asylum appl on Facebook coz he think someone needs crime effect "amelioration"

50/ Now jumping into 'internal relocation': it establishes a rebutable presumption OF INTERNAL RELOCATION if persecution is at the hands of private actor, even when there is inability to control!!!

51/ THIS: "persecutors who are private actors-including persecutors who are gang memb, rogue officials, fam members who are not themselves govt officials, or neighbors who are not themselves gov officials-shall not be considered to be persecutors who are the gov or gov-sponsored

52/ ... absent evidence that the government sponsored the
persecution." WHAT?!?

53/ But if all this 🔼🔼 have left somehow any asylum applicant squeak through the Trump Admin's claws of asylum ineligibility, we have new 'you got to deny it in the exercise of negative discretion' regulations. Why not!

54/ Here we go! Factor for negative discretion denial:
* applicant unlawful entry or unlawful attempted entry into the United States unless such entry or attempted entry was made in immediate flight from persecution in a contiguous
country

55/ * failure to apply for AZ in country of transit
* use of fraudulent documents to enter "unless the alien arrived in the United States by air, sea, or land directly from the applicant’s home country without transiting through any other country"

56/ Then we have 'you cannot grant regs' if applicant
* spent more than 14 days in any one country of transit
* transits through more than one country between his country of origins
* accrued more than 1 year of unlawful presence in the US prior to filing an applic for asylum

57/ It continues! No asylum for anyone who at the time the asylum application is filed with DHS has:
* unpaid taxes
*failed to file tax return
* unreported taxable income
* 2 or > denied Az appl
* withdraw Az ppl
* failed to attend Az interview PLUS

58/ this one which is just:
"Was subject to a final order of removal, deportation, or exclusion and did not file a motion to reopen to seek asylum based on changed country conditions within one year of those changes in country conditions"

!!!!!

59/ All those new bars to asylum grants added are subject to another layer:
"Where 1 or > of the adverse discretionary factors []are present, the Secretary, in extraordinary circumstances, such as those involving national security or foreign policy considerations, ...[read on]

60/ or cases in which an alien, by clear and convincing evidence, demonstrates that the denial of the application for asylum would result in exceptional & extremely unusual hardship to the alien, may favorably exercise discretion" grant asylum.

61/ Yes! New Game in Town:

* applic established past persecution or well-founded fear of future persecution BUT

* failed to file taxes

⬇️

you have to establish 42B standard of hardship to asylum seeker if return.

So risk of being killed or persecuted ... close but no cigar!

62/ For CAT it incorporate every single bad circuit court decision ... rogue official, willful blindness, breaching legal duties, the whole damn shit.

and while I was cursing and screaming and crying reading the proposed Asylum Regs I see we now have new existential threat in the Northeast.

https://twitter.com/ozm/status/1270718629131087872

cool, cool

I was hopping that it was just a nightmare I had but NO! the Joint Proposed Asylum Regulation is still here and it is the 10th circle of Hell.