TASSC Objects to Proposed Rules on Asylum
July 15, 2020
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, U.S. 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
TASSC Objects to the Proposed Rule in Its Entirety and Urges the Agencies to Rescind It
The Torture Abolition and Survivors’ Support Coalition (TASSC) International submits this comment urging the Department of Justice (DOJ) and Department of Homeland Security (DHS) to withdraw these proposed rules in their entirety. TASSC is gravely concerned that the proposed rules would result in many survivors of torture with meritorious asylum claims being denied asylum and returned to countries where they risk further torture and death. The proposed rules destroy the protections offered under the U.S. asylum system, and they violate both international and domestic law.
TASSC was created in 1998 by Sister Dianna Ortiz, a Roman Catholic Ursuline nun who was serving as a missionary in Guatemala when she was captured and tortured by the country’s security forces. After her return to the U.S., she met other survivors of torture and founded TASSC as nonprofit dedicated to advocacy to end torture and to support the full range of survivors’ needs, including social services, case management, psychological, medical, legal, and advocacy. TASSC is unique in the United States as it is the only organization led by torture survivors themselves, operating from the core belief that survivors understand their needs best and must be at the core of decisions about the healing process. Our Board is comprised of survivors and lifelong human rights activists committed to abolishing torture and supporting survivors throughout the world. In our pursuit to remain survivor-led, the Board is both elected by and comprised of over 50% survivors.
TASSC’s staff holds the expertise necessary to provide informed commentary on these rules. TASSC’s Legal Services Program Manager is the primary author of this comment and is an attorney with over a decade of experience practicing asylum law with a focus on survivors of torture and sexual and gender-based violence. She has led trainings in the U.S. and abroad on asylum and refugee law, collaborated with the American Immigration Lawyers Association to analyze changes in asylum screening standards, and has published pieces on refugee/asylum law as well as international human rights law. TASSC’s Executive Director has over a decade of experience in Human Services and Program Management. He is a health professional and a human rights activist with degrees in Clinical Psychology, Public Health and Conflict Resolution, and has worked with local NGOs in Rwanda and international NGOs like Handicap International, Partners in Health, Clinton Health Access Initiative, and DelAgua Health U.K. TASSC’s Health and Psychological Wellness Manager has over 15 years of experience working with immigrant communities in Washington, D.C. and communities abroad in many countries. She is a licensed clinical social worker, whose areas of expertise include trauma, depression, anxiety, grief, transnational families, domestic violence, women's empowerment, community outreach, diversity & inclusion, and using mindfulness practices as an accompanying modality to therapy. TASSC’s Social Services Program Manager is a licensed clinical social worker with over five years of experience working with survivors of torture at TASSC, and further experience counseling survivors of sexual assault and human trafficking. Additionally, she has experience building a crisis center for survivors of domestic violence and bride kidnapping abroad. TASSC’s Advocacy and Outreach Program Manager has decades of experience advocating with vulnerable communities. TASSC’s Advocacy and Outreach Program Manager has managed the program since November 2013. She works closely with survivors to educate policymakers about human rights policies toward countries whose governments tortured survivors, and on other issues that affect them such as the asylum backlog. She also coordinates the Truth Speakers program, which brings survivors to faith-based and human rights organizations.
As a survivor-led organization with decades of experience and expertise serving survivors of torture and assisting them in their journeys toward asylum, TASSC objects in the strongest terms possible to the proposed regulations in their entirety. The proposed regulations would effectively destroy the asylum system and prevent many survivors of torture from applying for or being granted asylum, and it would send survivors back to countries where they risk further torture or death.
TASSC Objects to the 30 Day Comment Period
These proposed regulations constitute the most expansive changes to the asylum system that we have seen and would effectively destroy the U.S. asylum system. The Notice of Proposed Rulemaking (NPRM) is over 160 pages long, and it covers a wide breadth of topics that span the entirety of U.S. asylum law. The NPRM contains proposals that have the power to determine life and death issues, including sending people back to countries where they may be tortured, persecuted, or killed. The normal period allowed for public comment is 60 days, and particularly for such a combination of what should have been multiple proposed regulations that were combined into one large document, the public should be allowed at least the normal comment period. Instead, the agencies cut the response time to this life-altering document in half, intentionally making it more difficult for individuals and agencies serving vulnerable populations to review the regulations and respond effectively.
Additionally, even though immigration courts and USCIS offices are re-opening, we are still in the middle of the global COVID-19 pandemic in which over 13 million people have been infected, over three million of whom are in the U.S., and in which over 500,000 people have died, over 135,000 of whom were in the U.S. The TASSC office, like most offices serving vulnerable populations in the D.C./MD/VA area, has been closed to the public since mid-March. We work extremely hard to be able to continue serving our clients remotely; however, this takes massive time and resources. We estimate it now takes approximately as much time to serve one client during remote work as it did to serve three clients in the office pre-COVID-19. Some staff have further time restrictions due to childcare duties. Some clients have been infected with COVID-19, and most clients have been affected financially due to job loss, cut hours, or other COVID-related challenges. In response, TASSC has worked hard to create not only emergency resource information on COVID-related issues, such as filing for unemployment benefits, accessing healthcare, and avoiding unlawful evictions by state in multiple languages, but also TASSC has raised funds for emergency assistance for our clients and created a system for fair distribution.
Because of the unjust time restrictions imposed by the agencies, as well as the additional burdens of COVID-19, we are unable to comment on everything we would like. Especially in light of the challenges that individuals and organizations that serve asylum seekers face during the pandemic, the agencies have demonstrated bad faith in restricting the public comment period to 30 days. For this reason, the agencies should rescind the proposed rule. Any reissued proposed regulations should be accompanied by the regular 60-day public comment period.
8 CFR § 208.20; 8 CFR § 1208.20—The Proposed Rule Drastically Heightens the Legal Standards for Credible and Reasonable Fear Interviews, and Will Deny Many Asylum Seekers the Chance to Apply for Asylum
The proposed rule would create significant barriers for asylum seekers subject to expedited removal to meet the standard for credible fear, thereby allowing them to be placed into regular removal proceedings and have the chance to present their case before an immigration judge. The new credible fear standards outlined in the proposed rules fly in the face of Congressional intent to make the credible fear interview a “net” intended to catch and screen in anyone who could potentially be granted asylum, and instead effectively redirect asylum officers to screen out as many people as possible. Congress demonstrated its intent to set the standard low for this initial screening interview, to prevent refugees and survivors from being returned to persecution, when it made the standard for credible fear “a significant possibility” that the applicant’s claim could be found credible in INA § 235(b)(1)(B)(v). The new proposed rule contradicts this intent and changes the language to “a substantial and realistic possibility of succeeding.” This changes Congressional intent and violates the statute.
A full comparison of the original Congressional intent as laid out most closely in the 2006 USCIS Credible Fear Lesson Plan for Asylum Officers and the changes to credible fear proposed in the NPRM is not possible here due to the above-mentioned time constraints; however, a review of the American Immigration Lawyers Association (AILA) Doc. No. 19053034, Updated Credible Fear Lesson Plans Comparison Chart, demonstrates how the proposed changes to the credible fear process in the proposed rules are a continuation and culmination of the agencies’ efforts to chip away at the credible fear process until it is destroyed.
Survivors of torture who arrive at the border are not only extremely traumatized by the events that caused them to flee, but are also likely suffering from hunger, exhaustion, anxiety stemming from the separation from their families, language and cultural barriers, and may have encountered additional trauma, illness, or injury on their journeys. They are in no condition to communicate coherent stories to uniformed officers, the sight of whom may contribute to re-traumatization, particularly regarding incidents of torture and sexual or gender-based violence. These asylum seekers cannot be expected to answer extremely fact-specific inquiries and articulate heightened legal standards.
Currently, bars to asylum are only considered during the asylum adjudication process in immigration court or at the asylum office. These bars were not intended to be considered at the initial, low-threshold credible fear screening process. However, the new rules require asylum officers to consider bars to asylum when making credible fear determinations. Not only does this defeat the purpose of an initial screening, it also takes more time and resources and requires officers to make determinations they have neither the resources nor often the training and legal background to make. Survivors who, for example, have been trafficked and forced into commercial sex or prostitution will be barred under the “serious non-political crime” bar, which contravenes the intent of the screening interview.
Additionally, asylum seekers would be subject to the new transit ban at 8 CFR § 208.13 (c)(4)(ii), which unjustly and arguably unlawfully bars the vast majority of asylum seekers arriving at the southern border and crossing between ports of entry from ever applying for asylum, in the slim chance they passed their screening interview under these new rules. Thus, they would have to meet the “reasonable possibility” standard designed for those barred from asylum who are only eligible for withholding of removal or protection under the Convention Against Torture, which are significantly lesser forms of protection. By combining the new transit ban with the unjustly higher credible fear standards, the agencies have shown their intent to make it virtually impossible for anyone to even be eligible to apply for asylum.
Making eligibility for asylum nearly impossible through the combination of the transit ban and the heightened credible fear standards is cruel and un-American. TASSC serves both affirmative and defensive asylum seekers. The survivors of torture we serve who apply affirmatively can do so because they were able to get visas to come to the U.S. Our clients who are applying defensively are not in removal proceedings because they prefer breaking the law over the safety of getting a visa; they are in removal proceedings because they were unable to get visas because of the dangers it would have posed. In fact, many survivors made long and treacherous journeys to the U.S. and tried to request asylum at a Port of Entry but were told by a Border Patrol officer that “the U.S. is closed,” which is another contravention of both U.S. and international law. Forced to choose between trying to survive in dangerous border cities in Mexico or flee to safety, they choose to flee to the U.S. – where the law allows for asylum seekers to file for asylum regardless of their manner of entry.
The proposed rules now add additional factors that make passing credible fear even more difficult. The proposed rules add an analysis of internal relocation to the credible fear process, which is another inquiry that requires more time, research, and resources than officers conducting screening interviews have. Additionally, under the new rules, failure by an applicant to indicate they want an immigration judge review of a negative decision would be interpreted as declining, whereas currently failure to indicate preference is treated as a request for review. This is because, often, asylum seekers are so confused by the process that they do not understand what “immigration judge review” means, whether it is safe, or whether requesting further review of an officer in a position of authority may get them deported. Finally, the rule would allow precedential case law to be used in credible fear decisions, which is extremely unjust; officers conducting interviews do not have the expertise to utilize case law and asylum seekers cannot respond or do their own research. Many immigration officials and even immigration judges have improperly read and applied Matter of A–B– as prohibiting any claim that involves domestic or inter-personal violence, and the new rules would unjustly prevent asylum seekers who have experienced such violence from applying for asylum. The proposed rules would instead send asylum seekers back to the very violence they fled.
8 CFR § 1208.13 (e)—The Proposed Rule Would Deny Asylum Seekers Due Process
The proposed rules impose a shocking violation of due process on asylum seekers by allowing judges to “pretermit” asylum claims, or deny an asylum claim without having the chance to present their asylum claim. Matter of Fefe held that “full examination” of an applicant through the process of an immigration court hearing is a requirement for a fair asylum process in the U.S., and the NPRM attempts to overturn case law and due process through the regulatory process. Generally, an applicant submits the required Form I-589 Asylum Application to meet their one-year filing deadline, and then has time while they await their trial to amass evidence and, hopefully, find an attorney who can help present their case. Allowing a judge to decide on their own or at the suggestion of a DHS attorney that the initial asylum submission on its face, without the opportunity to present evidence or testimony, would not be granted if given the chance and therefore denying the chance to present a case is a violation of domestic and international asylum and refugee law, as well as due process norms.
The proposal to deny asylum seekers the opportunity to present their claims in court demonstrates a failure to understand asylum seekers’ realities and the challenges they face in filing an application. Most asylum seekers do not speak English fluently, if they speak English at all. Form I-589 is lengthy and difficult for native English speakers to understand, particularly given heightened requirements for acceptance. Most asylum seekers will have to use unofficial translators or friends who speak intermediate English, but who will likely make translation mistakes. Asylum seekers have one year from the time they enter the country, which includes time spent in immigration detention, to figure out how to submit their applications. Most asylum seekers, but particularly survivors of torture such as the clients whom TASSC serves, are highly traumatized and often have difficulty writing clearly about the events that led them to flee. The majority will be unable to find an attorney, which is significant because asylum seekers with attorneys are more than five times as likely to be granted asylum than those without. Detained asylum seekers with an attorney are more than 10 times as likely to be granted asylum than those without. Asylum seekers, particularly survivors of torture, cannot be expected to understand the complex rules and requirements of the increasingly difficult asylum process and heightened standards.
Particularly for those asylum seekers without an attorney, testifying in court and presenting their case before a judge trained to elicit the elements of an asylum claim is critical to having a fair chance at being granted asylum. For example, recently at a case in Baltimore Immigration Court, the immigration judge initially expressed skepticism at whether an asylum applicant could meet the standard for asylum after the Attorney General’s decision in Matter of L–E–A–. However, after this survivor testified credibly for over an hour, the immigration judge changed his mind and stated he was convinced by her testimony that her claim was meritorious and granted asylum. Allowing immigration judges to deny asylum cases without providing the opportunity for testimony or further evidence presentation will inevitably lead to meritorious cases being unfairly denied and asylum seekers and survivors of torture being returned to harm. We strongly oppose this proposed change.
8 CFR § 208.1(e); 8 CFR § 1208.1(e)— The Proposed Rule Changes the Definition of Persecution Set by Decades of Case Law Development
Persecution, one of the most fundamental concepts of asylum, has always been defined by case law as, “a threat to the life or freedom of, or the infliction of suffering or harm” upon a person for offensive reasons (Matter of Acosta), by a government actor or by an actor the government cannot or will not control, to overcome a characteristic of the victim (Matter of Kasgina). Years of case law has confirmed and further explained what qualifies as persecution. Now, the proposed rules attempt to redefine persecution in a way that severely restricts what would qualify, by stating the harm must be “extreme” and threats must be “exigent”. This definition contravenes decades of case law and leaves the door open for judges and adjudicators to define “extreme” and “exigent” as restrictively as they see fit. This narrowed definition will lead to the denial of meritorious claims and should be rejected.
Additionally, the new proposals do not consider cumulative harm. However, case law makes clear that, “cumulative, specific instances of violence and harassment toward an individual” by the government or non-government entities the government cannot or will not control, can constitute persecution (Korablina v. INS). This can be the case even if the individual instances would not be considered persecution (Matter of O–Z– & I–Z–). Applicants who endured multiple, brief detentions or attacks could be disqualified under this rule. This could adversely affect many survivors of torture who are frequently arrested and held for brief periods of time to punish them for their political activism.
8 CFR § 208.1(d); 8 CFR § 1208.1(d)—The Proposed Rule Changes the Definition of Political Opinion Set by Decades of Case Law
Political opinion is well-defined through case law. Political opinion is defined as behaviors or acts that are, “motivated by an ideal or conviction of sorts,” and can be expressed verbally or as, “openly expressive behavior by the applicant in furtherance of a particular cause.” (Saldarriaga v. Gonzales). The proposed rule would change the existing definition of political opinion by severely restricting it to “furtherance of a discrete cause related to political control of a state or a unit thereof.” This formulation of political opinion is rudimentary and myopic, and it fails to demonstrate an elementary understanding of the various ways people can express and be persecuted for their political opinions, which decades of case law has elucidated. While TASSC works with many survivors who have been tortured for their work toward a cause related to political control, we also work with many survivors who have been tortured for expressions of political opinion that would be excluded under this new proposal. For example, TASSC represents women survivors of torture who were tortured for their refusal to abide by strict gender norms and who advocated for equal rights for women in employment, inheritance, property ownership, marriage, and the legal process. These activists who were tortured, sometimes nearly to death, for their political opinions would no longer qualify for asylum. In other words, the political opinion of feminism would no longer qualify, even though feminism is demonstrably a characteristic that persecutors seek to overcome in the same way as political opinions that involved “political control of a state.”
The proposed rule then includes a laundry list of non-government actors to which an applicant can no longer express opposition to and qualify for asylum. Under the new rules, applicants’ expression of opposition to groups such as terrorist organizations, criminal organizations, gangs, guerilla groups, or other non-state actors no longer counts, unless the asylum seeker’s behavior is, “related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.” However, this restriction blatantly ignores the fact that the asylum definition includes protection from persecution by not only government groups, but also by non-state actors that the government is unwilling or unable to control. Criminal organizations such as Al Shabaab in Somalia, Boko Haram in Nigeria, ISIS in Syria, and MS-13 in El Salvador can exercise such “effective control” in areas of the country that the government is unwilling or unable to control the torture and persecution they carry out against their opponents. Rejecting claims based on expressed political opinion against non-state actors violates domestic and international law on asylum and should be removed.
8 CFR § 208.1(c); 8 CFR § 1208.1(c)— The Proposed Rule Destroys the Particular Social Group Ground
“Particular social group” (PSG) is one of the five protected grounds of asylum, and undoubtedly the most complex and confusing for judges and practitioners alike. In its Guidelines on International Protection for Particular Social Group, UNHCR defines it as, “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.” U.S. case law has refined and updated the definition continually, such that there is a circuit split on the application of the Board of Immigration Appeals’ definition in Matter of M–E–V–G–, which states a PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Each of these elements is also complex and continually refined through case law.
Given how complex the concept is for legal practitioners, it is absurd to think an asylum seeker with no training or familiarity with U.S. asylum law would be able to formulate a PSG – yet this is precisely what the new proposal requires. Under the proposed regulations, an asylum seeker must state with precision each particular social group they may fit into before an immigration judge. They will lose the ability to prevail under any PSG they did not precisely state in court, even if they clearly could prevail under an alternate PSG, did not have a lawyer, or had ineffective assistance of counsel. Asylum seekers cannot be expected to have the legal expertise required to craft such specific legal arguments in English. Making their case, and their lives, dependent on their ability to do so is grossly antithetical to the purpose of asylum law and is unconscionable.
These regulations would also reject PSG claims asserted by asylum seekers from a country with “generalized violence or a high crime rate.” Neither domestic nor international law requires asylum seekers seeking protection on the basis of a PSG to be from a country that has low violence or crime rates. Additionally, the proposed regulations do not purport to reject applicants seeking asylum on the basis of other protected grounds such as political opinion or religion if they are from countries with high generalized violence or crime rates. Adding this requirement for particular social group applicants is entirely illogical, because higher rates of crime and violence will more easily occur in countries in which the government either commits persecutory acts or fails to prevent them.
The proposed rules then contravene the definition of asylum by requiring denial where there is “interpersonal animus or retribution.” Asylum requires a persecutor seeking to overcome a characteristic in a person, so all asylum seekers have experienced or have a well-founded fear of experiencing retribution by definition. Similarly, the proposal directs adjudicators to not consider “criminal activity.” Yet decades of case law provide that criminalized acts such as rape, beatings, murder, kidnapping, and threats qualify as persecution.
The proposed rule rejects gender as a ground for asylum. Gender is generally included as part of a particular social group, and it fits the previously discussed three-prong PSG test of immutability, particularity, and social distinction. Asylum law requires a case-by-case analysis and does not permit categorical rejections of possible PSGs. TASSC is gravely concerned by the wholesale rejection of gender as a PSG, as we represent many survivors of torture who were tortured specifically because of their gender. We help survivors prevail on claims involving female genital mutilation, and other forms of sexual and gender-based violence targeted at women precisely because they are women. The rejection of gender as a PSG will severely harm the LGBTQ+ community and those who identify as a gender that differs from their sex assignment at birth, populations TASSC helps because they are also tortured because of their sexual orientation or gender identity. The rejection of gender would send many survivors back to countries where they will be persecuted, tortured, or killed because of their gender. This proposed rule violates domestic and international legal standards.
8 CFR § 208.13; 8 CFR § 1208.13—The Proposed Rule Imposes Severe Restrictions on Eligibility for Asylum for Discretionary Factors
Although asylum seekers can be rejected on unfavorable discretionary factors (I.N.S. v. Cardoza-Fonseca), case law directs adjudicators to grant asylum unless there are “egregious” adverse factors because of the grave dangers posed to asylum seekers upon return. (Matter of Pula). The proposed rule would result in the denial of most asylum applications on discretionary grounds, which is contrary to Congressional intent in allowing for discretion, as well as contrary to the concept of discretion in general.
Under the proposed rules, any asylum seeker who enters or attempts to enter between ports of entry without inspection could be denied asylum as a matter of discretion. As discussed above, this is a direct violation of U.S. asylum law, which specifically allows for asylum eligibility regardless of the manner of entry. Also, as previously mentioned, many TASSC clients and other survivors of torture enter without inspection after being unable to get a visa, and/or after trying unsuccessfully to enter at a port of entry but being told by a Border Patrol officer that the “U.S. is closed.”
The rule adds another bar that gravely concerns TASSC, denying most asylum seekers who spent 14 days or more in any country on the way to the U.S. eligibility for asylum. This change not only contravenes firm resettlement case law, but it would prevent most survivors of torture who must travel by land to the U.S. from qualifying. TASSC represents survivors from African countries for whom the only opportunity for escape is by plane or boat travel to South America, often with false identity documents, and then months of perilous travel through South and Central America, to Mexico, and finally to the U.S. Denial of claims for people who must spend 14 or more days in another country amounts to denial of certain nationalities. It amounts to the denial of applicants with disabilities, injuries, illnesses, or other vulnerabilities that may prevent them from quickly journeying through a country. It also fails to take into account the fact that many asylum seekers are attacked, kidnapped, or otherwise harmed in countries of transit, which of course also slows their journeys. Similarly, barring eligibility for any asylum seeker who had two or more layovers on their journey arbitrarily and cruelly bans large groups of people simply by virtue of the travel options from their country of origin. Finally, once asylum seekers do reach Mexico, if they are forced by border patrol to wait 14 days or more in Mexico, which virtually all asylum seekers are now, they will be denied based on this 14-day bar. If they decide to avoid the 14-day bar denial and cross into the U.S. between ports of entry, they will be denied for the new entry-without-inspection bar.
TASSC also strongly opposes the addition of using false documents as a strong discretionary factor for denial. This would again effectively deny categories of asylum seekers the ability to seek asylum based on their nationality, because many asylum seekers, particularly survivors of torture, are unable to procure visas because they have a well-founded fear of persecution by their government. TASSC’s female survivor clients often cannot apply for passports from their governments without a male family member present, or they risk punitive action. Often, obtaining false documents is the only way a survivor can save his or her own life, and TASSC has assisted many such survivors achieve asylum in the U.S. who now lead productive lives.
TASSC also strongly opposes the proposed rule eliminating the exceptions to the one-year filing deadline. Congress specifically intended for asylum seekers to be eligible to file for asylum past the one-year filing deadline if conditions in their country changed such that they developed a new well-founded fear of persecution, or if they encountered extraordinary circumstances that prevented them from filing. TASSC represents many survivors of torture who arrived in the U.S. with severe post-traumatic stress disorder or physical health problems from their torture that prevented them from filing on time. Many survivors of sexual and gender-based violence and torture have particular challenges in finding legal representation and being able to tell their stories within one year of arrival. Many also arrive and, due to unfamiliarity with the legal system, fall prey to “notarios,” “case writers,” or other actors engaging in the unauthorized practice of law, who collect applicants’ money but never file an application, leaving the applicant to mistakenly believe they have properly filed. Eliminating exceptions to the one-year-filing deadline is a cruel measure that will result in many survivors of severe persecution and torture with meritorious claims being denied.
8 CFR § 208.15; 8 CFR § 1208.15— The Proposed Rule Redefines “Firm Resettlement”
The proposed regulations expand the definition of firm resettlement to exclude applicants who resided in another country for one year or more, even if there was no pathway to permanent status. The proposal fails to take into account an applicant’s inability to leave a country due to illness, being trafficked, lack of financial resources to leave, or danger of travel if the third country is unstable. TASSC opposes this rule because many survivors of torture must make long, arduous journeys to the U.S. and encounter situations that prevent them from leaving the transit country. Women in particular often have difficulty gathering the financial and safety resources to permit the continuation of their journey. Additionally, many applicants try to live in other countries that are closer to their home countries, but find they are still unsafe there or are not permitted to legally remain in any way. A survivor who tried to live in another country but was unsafe or had no pathway to legal status should not be precluded from the protections afforded by the U.S. asylum system.
8 CFR § 208.18; 8 CFR § 1208.18— The Proposed Rule Changes the Definition of Torture and Imposes Extreme Hurdles to Protection Under CAT
TASSC vehemently opposes the proposed changes to acquiring protection under the Convention Against Torture, which changes the definition of torture to create a “rogue officer” exception. Under the proposal, to qualify as torture the applicant would have to prove the official must have committed the acts leading to pain and suffering “under the color of law,” or while acting in an official capacity, and that the official was not acting as a “rogue official.” This restriction defies logic by stating that an act that causes pain and suffering that arise to the level of torture is not actually torture if the official was acting in a “rogue” capacity.
TASSC provides wrap-around legal, social, and health services to hundreds of survivors of torture every year. As an organization, TASSC has expertise on the ways survivors experience and escape from torture – not only because of our professional experience but also because our Board of Directors is composed of survivors of torture as well as experts on torture treatment. Survivors of torture are not in a position to interact with officials torturing them in such a way to elicit information as to whether the official is acting “under the color of law” or in a “rogue” fashion. Requiring survivors of torture to somehow find out whether an officer was acting under the color of law, then obtain evidence of the officer acting in official capacity, and finally prove it in U.S. immigration court is beyond absurd – it is requiring the impossible. This proposal punishes survivors for being tortured and contravenes the intent of the Convention designed to protect them.
Additionally, many TASSC survivors have experienced torture at the hands of government officials who were not acting out official government policy or orders when they committed acts amounting to torture, but used the power of their position to take the survivor into their custody or control and inflict torture. These officials were able to do so because their superiors acquiesce to criminal behavior or turn a blind eye. For example, survivors of torture from Cameroon and Jamaica have been beaten, administered electric shocks, and sexually tortured by police officers who learned of the survivors’ sexual orientation. Survivors from eastern African countries have been raped and sexually mutilated by officers using their status as an official to take custody of and torture the survivors on account of their gender. TASSC strongly opposes the proposed rules on protection under the Convention Against Torture, as it would result in many survivors being sent back to countries where they risk torture.
8 CFR § 208.20; 8 CFR § 1208.20—The Proposed Rule Redefines the Definition of Frivolous and Would Make Applicants Ineligible for Any Relief
TASSC opposes the proposed rule’s redefining of a “frivolous” asylum application because it creates the opportunity for many claims to be declared “frivolous” for unmerited reasons. It opens the door for an adjudicator to define an application as frivolous if it is “foreclosed by existing law.” However, creating arguments to change existing law is how the U.S. common law system works. In fact, it is our duty as attorneys to raise arguments against existing law that we can argue in good faith is wrong. As previously discussed, the “existing law” in asylum is consistently overturned or refined, and issues in asylum law frequently are decided differently in different federal circuits, resulting in circuit splits (not to mention overturning of BIA decisions) on key issues. If an applicant and their attorney decide to exercise the applicant’s right to challenge existing law the applicant believes is wrong, that applicant would, under these regulations, risk having their application deemed frivolous – which precludes the applicant from any future immigration legal relief. An applicant for asylum should not be precluded from the possibility of any relief because they choose to challenge existing case law. This proposed rule would be antithetical to the U.S. legal system.
Conclusion
These proposed rules represent a cruel deprivation of safety and due process to a large class of vulnerable human beings who merit protection. They completely eviscerate the system of protection for asylum seekers and refugees that the U.S. has been working hard to develop since World War II. These regulations change the definition of key legal concepts such that they are unrecognizable. If published, these rules would result in the denial of asylum, withholding of removal, and protection under the Convention Against Torture to the vast majority of asylum seekers and survivors of torture. The rules would lead to many survivors who saw the U.S. as a beacon of hope being cruelly and illegally returned to countries where they would face further persecution, torture, and death. TASSC calls on the agencies to immediately withdraw these proposed rules in their entirety.
Respectfully,
Angela J. Edman, Esq., TASSC Legal Services Program Manager
Léonce Byimana, MPH, TASSC Executive Director