(Effective January 5th, 2001)
Q
1. On what date were the proposed rules published?
Ans. INS and EOIR jointly published the
proposed rules on January 3, 1997 for implementation of IIRIRA in the Federal
Register (62 FR 444). A 30-day comment period followed that publication.
Subsequently, on March 6, 1997, INS and EOIR jointly published an interim rule
to implement IIRIRA at 62 FR 10312. The Department has received 124 comments on
the proposed rule and an additional 39 comments on the interim rule. The final
rule, as is currently presented reflects changes made which were done on
account of observations received in reply to both the proposed IIRIRA rule and
the interim IIRIRA rule.
Ans. The rule, as is currently
presented by the INS alters the Department of Justice (DOJ) regulations
applying the provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIA), governing asylum and withholding of removal
claims. The rule also revises sections of the regulations regarding past
persecution and cases in which applicants may prevent future harassment by
moving to another part of their country.
Q 3. Can you enumerate the changes made to
the one-year filing deadline rules?
Ans. In the 1996 IIRIRA legislation, it was
ordered, by the Congress, with some exemptions, that within one year of the
applicant’s arrival in the United States, all asylum applications must be
filed. This filing deadline can be put aside only when the applicant proves
that either the circumstances that materially influence his or her eligibility
for asylum have altered, or that extraordinary circumstances exist, involving
the delay in filing. The current regulations make modifications to the interim
rules governing the one-year filing deadline. The rule makes both substantive
and procedural adjustments to make sure that individuals with legitimate claims
to shelter will have the opportunity to apply for asylum. The rule also
explains how requests for exceptions to the filing deadline must be regarded
procedurally and it provides for factors that the adjudicator may take into
account in deciding whether an exception applies.
Q 4. Does this rule include modifications to the
asylum regulations other than those required by IIRIR?
Ans. This rule definitely includes
modifications to give further guidance on cases involving past persecution and
internal transfer possibilities. Modifications to provide additional guidance
on these subjects were published as a proposed rule in the Federal Register on
June 11, 1998 63 FR 31945. DOJ got 35 comments in response to the proposed
rule. The final rule comprises amendments based on these public comments.
Q 5. Describe the adjustments made to the
stipulations regarding changed circumstances and extraordinary circumstances?
Ans. The regulation declares that
the lists of circumstances that may comprise changed circumstances or
extraordinary circumstances are descriptive lists and are not all-inclusive.
The rule sustains the prerequisite that where changed or extraordinary
circumstances prevented filing within a year, the application must yet be filed
within a reasonable period. The rule also sets forth examples of issues that
the adjudicator may consider. For, example the rule recognizes that the death
or serious illness of the applicant’s legal representative or a member of the
applicant’s immediate family may constitute extraordinary circumstances as a
reason for excusing a late filing.
Q 6. What is the reason behind promulgation of
separate regulations governing IIRIRA amendments to asylum and withholding of
removal provisions, from the other IIRIRA regulations?
Ans. DOJ has chosen to split part 208 from the
rest of the IIRIRA interim regulations with an intention to propagate a final
rule that includes both comments to the IIRIRA interim rule and comments to the
proposed rule regarding past persecution and internal relocation. In addition,
DOJ is proposing to publish a proposed rule relating to the definition of ‘persecution’
and ‘particular social group’. Those proposals are partly based on certain of
the conditions being made final in this rule.
Q 7. Will the rule change the presumption that
an applicant who has experienced past persecution also dreads future persecution?
Ans. No. The important principle of U.S.
asylum law has been left untouched, by this rule, that, an applicant who proves
that he/she has suffered past persecution due to a statutorily protected ground
– nationality, membership in a particular social group, race, religion or
political opinion – is presumed to possess a fear of future persecution.
Q 8. Is it acceptable that the government may
refute the presumption?
Ans. Yes. Even if an applicant who has
established past persecution is granted an assumption of a fear of future
persecution, an Asylum Officer or Immigration Judge may refute the presumption
and show that the applicant is not in need of international protection, since
such applicant no longer has a justifiable fear.
Q 9. What is the kind of evidence that is
required to refute the presumption?
Ans. The rule currently published indicates
that in past persecution cases, INS may determine by a prevalence of the proof
that there has been a ‘fundamental change in circumstances’, so that the
applicant does not any longer have a justifiable fear of future persecution.
The fundamental change may be a change in country conditions or a change in the
applicant’s personal circumstances. INS may also refute the presumption by
ascertaining that the applicant can convincingly evade future persecution by
relocating to another part of the country.
Q 10. Will this rule make it tougher for people in
need of protection to get asylum?
Ans. No. On the contrary, replying to an INS
suggestion, the regulation permits an individual to be granted asylum based on
past persecution alone. The asylum may be granted when the applicant proves
convincing reasons arising out of the severity of the past persecution, or when
the applicant proves that there is a reasonable possibility he/she may
experience other serious injury if sent to that country. Further, the rule
upholds the principle that once an applicant has proven past persecution, it is
presumed that he/she has a well-founded fear of persecution, unless the Service
can refute the presumption. The regulation is quite obvious that in cases in
which INS believes the person is no longer in need of protection, INS shall
bear the legal burden to prove that the applicant no longer has a well-founded
fear of prosecution.
Q 11. What are the factors which the Attorney
General took into account in deciding to amend the past persecution and
internal relocation rules?
Ans. In order to decide how to amend these
provisions, DOJ referred to the relevant provisions of the United Nations High
Commissioner for Refugee’s Handbook on Procedures and Criteria (UNHCR) for
Determining Refugee Status and precedent court decisions. Even though DOJ does
not have to conform to the UNHCR Handbook’s provisions, the U.S. Supreme Court
has recognized that it is a useful interpretive aid and that it offers
significant guidance in construing provisions relating to the protection of
refugees. The new regulatory language is consistent with the principles in the
UNHCR handbook that fundamental changes may conquer a presumption of future
fear. The UNCHR Handbook also acknowledges that where reasonable, a decision
maker may consider internal relocation as an option.
Q 12. Is it within the Attorney General’s power to
make these amendments to the regulations?
Ans. Yes. Under section 208 of the Immigration
and Nationality Act, the Attorney General is granted the discretion to
determine which ‘refugees’ will be granted asylum in the United States. It is
essential in the concept of asylum that an individual needs international
protection because his or her own country cannot or will not provide
protection. This rule modified the regulatory language governing the exercise
of discretion in past persecution cases and in cases in which internal
relocation may be possible. The Attorney General is authorized to consider
evidence that proves that the individual does not need any shelter.
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