I have left the following Comments this morning on regulations.gov. These Comments address the proposed neutering of asylum law in the United States through proposed rules and regulations. The deadline for Comments is tomorrow.
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COMMENTS no 2 ON PROPOSED CHANGES TO RULES "PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL; CREDIBLE FEAR AND REASONABLE FEAR REVIEW."
Re: Joint Proposed Rulemaking.
Department of Justice & Department of Homeland Security.
RIN 1125-AA94;
EOIR Docket No. 18-0002.
These Comments address in particular your proposed additions and other changes of "streamlined proceedings" for processing applicants for admission to the United States.
To begin with, Congress has already established a procedure for processing applicants for admission to the United States. You do not have the power or authority to change statutes by rules or regulations or by changes to rules and regulations.
Immigration officers are required by statute to screen applicants for admission to the United States. See 8 USCA § 1225(b)(1)(A).
If the immigration officer determines that an applicant is inadmissible, she must refer the applicant to an asylum officer, by statute. Congress specified two times in the statute when applicants deemed inadmissible are required to be referred to an asylum officer:
- If the alien indicates an intention to apply for asylum in accordance with United States law, or
- If the alien indicates a fear of persecution.
8 USCA § 1225(b)(1)(A).
Congress set out the statutory obligations of asylum officers in 8 USCA § 1225(b)(1)(B). Subparagraph (B) of subsection 1225(b)(1) is titled, "Asylum Interviews[.]"
Congress expressly defined a "credible fear of persecution":
(v)“Credible fear of persecution” defined
For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.
8 USCA § 1225(b)(1)(B)(iv).
The process that Congress established for determining a "credible fear of persecution" means a significant possibility, that the alien could establish eligibility for asylum under U.S. law. The initial determination must, Congress wrote, include the taking of statements under oath from the alien and it must also include the asylum officer's determination of the alien's credibility in making those statements under oath. Such other facts --not opinions, not speculation, not conjecture -- as are known to the asylum officer must also be taken into account in making the initial determination.
This procedure has been established by Congress. This procedure is so important that Congress established the procedure for processing applicants for admission to the U.S. in the legislation itself. Your proposed rules changes do not reflect these safeguards established by Congress in the statute. No rule you propose, and no rules change you advocate, can usurp the Constitutional prerogative of Congress in this area, nor in any other.
Further, Congress knew about streamlined procedures when Congress wrote this statute. Congress provided for streamlined procedures concerning Removal of Aliens Inadmissible on Security and Related Grounds. See 8 USCA § 1225(c). Congress chose not to enact a streamlined procedure in all cases whenever a person applies for admission to the United States. Your proposed rules changes would do that. You are attempting to rewrite a statute with rules and regulations. This you may not lawfully do.
It is a basic rule of statutory construction, an axiom of statutory construction if you will, that when any legislative body writes a statute, the fact that they clearly knew how to write different provisions but chose not to do so in the statute at hand, strengthens the interpretation that the legislative body did not intend for different provisions to apply. In writing this statute, Congress did not intend to write the different provisions you propose in your changed rules and regulations. It is worth noting here that you have not introduced your proposal in Congress to change the law, because you do not have the votes.
For all these reasons, whether taken separately or together, your proposed rules changes are invalid, without authority, and contrary to the Congressional mandate specified in 8 USCA § 1225. Your proposed rules changes should be withdrawn accordingly.
Thank you for your consideration of these Comments.
Sincerely,
Dennis J. Wall
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