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Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization [59 FR 62284 - 62303][FR 70-94]
59 FR 62284 - 62303
December 5, 1994
BILLING CODE 4410-01-P
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1651-93; AG Order No. 1937-94]
Rules and Procedures for Adjudication of Applications for Asylum
or Withholding of Deportation and
for Employment Authorization
Immigration and Naturalization Service, Justice.
This final rule streamlines the adjudication of asylum applications submitted to the Immigration and Naturalization Service (INS). Asylum officers who adjudicate the applications of persons who have no legal immigration status will no longer prepare detailed denials. Instead, in almost all cases, asylum officers will grant meritorious applications and refer applications that they do not grant to immigration judges, who will adjudicate the claims in either exclusion or deportation proceedings. The rule res
tricts employment authorization to applicants for asylum or withholding of deportation whose claims either have been granted or remain pending after more than 150 days, a period which would not run until the alien has filed a complete application and which would not include delays sought or caused by the applicant. This rule conforms existing regulations to the current practice of receiving applications for asylum and withholding of deportation at the four INS Service Centers. The rule also updates the regu
lations by removing references to the Asylum Policy and Review Unit.
This rule is effective January 4, 1995.
FOR FURTHER INFORMATION CONTACT:
Christine Davidson, Senior Policy Analyst, Asylum Division, Immigration and Naturalization Service, 425 I Street NW., ULLICO 3rd Floor, Washington, DC 20536, (202) 633-4389, or Gerald S. Hurwitz, Counsel to the Director, Executive Office for Immigration Review, 2400 Skyline Tower, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 305-0470.
The Department of Justice published a proposed rule on March 30, 1994 (59 FR 14779) as part of a comprehensive initiative to streamline the process for adjudication of applications for asylum and withholding of deportation. Other aspects of this initiative have increased the government's ability to adjudicate such applications efficiently.
The proposed rule was designed to streamline the asylum adjudications process by making several principal reforms. First, the role and functions of asylum officers would change to allow the officers to address a greater volume of applications and to concentrate their efforts on approving meritorious claims. Asylum officers would no longer deny applications from persons who are excludable or deportable, but instead would refer such cases directly to an immigration judge for adjudication. The original applica
tion also would be forwarded to the immigration judge to form part of the record of proceedings. Second, the proposed rule would have instituted a fee for filing asylum applications. Third, an asylum applicant would not be eligible to apply for employment authorization based on his or her asylum application until 150 days after the date on which the asylum application is filed. The Immigration and Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR) would strive to complete th
e adjudication of asylum applications, through the decision of an immigration judge, within this 150-day period. Persons granted asylum would become eligible immediately to apply for and receive employment authorization. Persons whose cases were not decided by an immigration judge within the 150-day period would be eligible to apply for employment authorization. The INS would have 30 days to adjudicate such applications. Persons denied asylum by an immigration judge either within the 150-day period or prior
to the issuance of employment authorization by the INS would not be eligible to receive employment authorization.
Beyond these principal reforms, the proposed rule would have: eliminated the requirement that asylum officers and immigration judges await the receipt of advisory opinions from the Department of State; curtailed the authority of asylum officers to grant or deny withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h) (INA or Act); and specified that information provided in asylum applications could be used as a basis for an Order to Show Cause against the appl
icant under 8 CFR 242.1. The proposed rule also would have made several technical and conforming amendments.
The Department of Justice received 345 comments in response to this proposed rule. Many were submitted as a result of consultations between various non-governmental organizations. The following sections summarize the comments, set forth the response of the Department of Justice, and explain the revisions adopted.
The comments primarily focused upon the following topics: conformity with the Administrative Procedure Act (APA); constitutional questions; the proposed $130 filing fee; retroactivity of the proposed rule; service of notice; employment authorization; the discretionary nature of asylum interviews; interpreters; the "safe third country" ground of denial for applicants otherwise eligible for asylum; the elimination of the Notice of Intent to Deny (NOID) and the applicant's opportunity to rebut a NOID; and the
definition and treatment of persons convicted of an aggravated felony. In addition, there were general comments regarding United States immigration policy.
Many comments agreed that asylum reforms and a solution to the backlog problem are needed. Some stated, however, that even if the proposed rule met the objectives of the Immigration and Naturalization Service, it would do so at the expense of bona fide asylum applicants and would compromise fairness and humanitarian principles. Many comments stated that the proposed rule would not stop frivolous claims or reduce the backlog.
1. Administrative Procedure Act Issues
Comment: Several comments stated that the proposed rule violated the requirements of the Administrative Procedure Act (APA) because the rule included changes to regulations affecting the Executive Office for Immigration Review (EOIR), and the INS has no authority to promulgate regulations on behalf of EOIR. Sections alleged to fall within EOIR's jurisdiction were 208.1, 208.2, 208.3, 208.12, 208.14, 208.18, 236.3, and 242.17. The comments suggested that the Department should republish the sections of the pr
oposed rule that pertain to EOIR proceedings with instructions that comments should be directed to the EOIR.
Response and Disposition: The proposed rule was published by the Department of Justice. The Attorney General has authority to promulgate regulations on behalf of all Department of Justice agencies, including INS and EOIR. Officials of EOIR participated in drafting all relevant provisions of the proposed rule. Upon publication of the rule, the name, address, and phone number of the Counsel to the Director of EOIR were included as a point of contact for further information. Since this rule chiefly concerns t
he process for adjudicating asylum applications that are received in the first instance by the INS, public comments were directed to the INS; however, a copy of every comment was forwarded by the INS to EOIR. Specific suggestions were made by EOIR and have been incorporated into this final rule. Accordingly, this rule has been issued in compliance with the notice and comment requirements of the APA.
2. Constitutional Issues
Comment: Several comments stated that the proposed rule would violate the Constitution by infringing upon liberty and property interests protected under the due process clauses of the Fifth and Fourteenth Amendments. The comments identified the following as violations of due process: (a) not every asylum applicant would receive an asylum officer interview, which is essential for an asylum officer genuinely to evaluate a case; (b) those denied an interview would be deprived of the opportunity to have their c
laim decided in a non-adversarial setting and instead would be required to present their asylum claim to an immigration judge during an adversarial proceeding; (c) an applicant not granted asylum would be denied the opportunity, available under the current procedures, to rebut the asylum officer's initial determination to deny the claim (Notice of Intent to Deny); and (d) due to elimination of the Notice of Intent to Deny (NOID), the applicant would not have access to the information that the asylum officer
relied upon in deciding not to grant the claim. The comments stated that such infringement could not be justified by the Government's interest in improving the efficiency or financial viability of the asylum process.
Comments stated that procedures similar to those in the proposed rule have been invalidated by the federal courts. They pointed to Mendez v. Thornburgh, No. 88-04995 (C.D. Cal., Order filed May 26, 1989, modified June 23, 1989), in which the court preliminarily enjoined an expedited adjudication process put into place in Los Angeles and stated that applicants were entitled to a re-interview. Comments also noted American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (hereinafter "ABC"), i
n which the Government agreed to re-interview Salvadoran asylum-seekers. Comments suggested that agency efforts to expedite the asylum process through measures compromising due process and equal protection have been enjoined as a "pattern and practice violation" in a number of other cases.
Response and Disposition: The proposed rule fully recognized the due process rights of asylum applicants. By preserving asylum and withholding of deportation proceedings before an immigration judge, the rule provides due process: (a) the applicant is permitted to testify and submit all relevant evidence in support of his or her claim; (b) the applicant may be represented by an attorney; (c) the applicant is entitled to cross-examine all witnesses presented by the Government and to rebut any documentary evid
ence submitted by the Government; and (d) the applicant has the right to administrative appeal and judicial review of an adverse decision. In addition, as discussed below, the final rule amends the proposed rule by providing that the INS will conduct interviews for all asylum applicants within its jurisdiction who have filed a complete application. All who apply for asylum before an asylum officer will thus have an opportunity to present their claim in a nonadversarial proceeding. Furthermore, neither the s
ettlement agreement in Mendez nor the settlement agreement in ABC suggests that INS procedures were invalid. The rule does not single out any class of applicants for distinct treatment and all asylum applicants will be treated in the same manner without regard to nationality or country of origin. Asylum officers will interview all applicants who appear for their scheduled interviews before determining whether to grant, deny, or refer their applications.
3. Federalism Issues
Comments: Several comments argued that the proposed rule required a "cost benefit assessment" under Executive Order 12866 because it constitutes a "significant regulatory action." The comments also suggested that the Department was required to perform a "federalism assessment" under Executive Order 12612, since portions of the regulation could affect state governments' public welfare programs. The comments argued that the inability of asylum applicants to work for 180 days and during the appeal process coul
d lead the applicants and their families to rely on state public assistance that they might not turn to if authorized to work. This, the comments stated, constitutes a "substantial direct effect on the States," triggering the need for a federalism assessment.
Response and Disposition: Executive Order 12866 requires an agency to submit a draft proposed rule and an assessment of the potential costs and benefits of the regulation to the Office of Management and Budget (OMB) for review if the agency or OMB considers the rule "to be a significant regulatory action" under section 3(f) of that Order. The Department of Justice considered the proposed rule to be a significant regulatory action and complied with the Executive Order by submitting a copy of the draft propos
ed rule and a summary of the reasons for the regulation to the OMB. See 59 FR 14784 (March 30, 1994).
Executive Order 12612 requires a federalism assessment if a proposed regulation has "substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government." Whether policies have federalism implications depends principally on whether the policies would preempt state law or interfere with an area of regulation that is usually reserved to the states. If an agency determines that a po
licy has federalism implications, the federalism assessment must consider the costs or burdens the regulations would impose on the states and resources available to the states to offset the added costs or burdens.
The Department and OMB determined that Executive Order 12612 did not require a federalism assessment of this rule. Regulations regarding immigration and alienage are an exclusive federal concern, and thus do not preempt state law or impinge upon areas of state regulation. Furthermore, Congress has enacted specific legislation governing the employment of aliens which authorized the promulgation of regulations on the subject. The rule also would not have a substantial direct effect on the states. While it is
possible that asylum applicants not eligible to apply for work authorization might seek state benefits, the nature and degree of any such claims are at best an indirect effect of the adoption of new asylum procedures. Many asylum seekers have entered the United States illegally and are not eligible for most state benefits; and some state benefits, such as education, are available regardless of whether an applicant has work authorization. Meanwhile, the overall asylum reform effort should reduce the pressur
e on state public assistance benefits by more promptly granting asylum and work authorization to those deserving of these benefits and more promptly removing from the United States those who are not. Accordingly, there is no need for a federalism assessment under Executive Order 12612.
4. Filing Fee for Asylum Applications (8 CFR 103.7(b)(1))
Proposed Rule: The proposed rule would have amended 8 CFR 103.7(b)(1) to provide that a fee of $130 be charged for an application for asylum or withholding of deportation. Section 208.4(d) would have been amended to provide that an application be accompanied by such fee or by an application for waiver of fee in accordance with 8 CFR 103.7(c)(1).
Comments: Comments supporting fees argued that asylum applicants should have to pay a filing fee if they can afford to do so, that the general public does not benefit from services provided by the INS, and that taxpayers should not have to bear the entire cost.
Most comments, however, urged either elimination or reduction of the fee. It was argued that the proposed fee would unfairly punish persons seeking protection from persecution, treat asylum as a privilege limited to those who could afford it, discourage bona fide applications, and create a burden for the INS in administering the fee waiver provisions. Several comments claimed that the fee would be unfair in light of the proposed rule's limitation on an asylum applicant's access to employment authorization
pending the adjudication of the asylum claim. Other comments stated that the amount of the fee was excessive: even if an applicant could not qualify for a fee waiver, he or she might still be unable to apply for asylum due to the overall cost, including those for an attorney, counselor, and interpreter, to complete the asylum application process. These comments unfavorably compared the proposed fee to those charged by The Netherlands ($25.00) and Australia ($30.00), the only countries that now charge an app
lication fee, and suggested that a fee at this level would be more appropriate.
Several comments also argued that charging a fee would not be economically efficient. Collecting the fee and administering a waiver system would create significant administrative costs. Adjudicating waivers, aside from being time-consuming, would increase personnel costs and paperwork, would add an additional step to the adjudication process, and would expose the INS to litigation over contested waiver decisions. If, as anticipated, a large number of applicants applied for and obtained fee waivers, the cost
s in administering the fee and the waiver might not even offset the relatively low amount of fees collected.
Several comments also questioned whether the INS could fairly administer a fee waiver process. They alleged that the INS previously has used improper criteria in adjudicating applications for waivers of fees for Temporary Protected Status and for renewal of employment authorization documents. These comments urged that the process be fairly implemented by removing irrelevant discretionary factors from the waiver procedure and focusing solely on the applicant's ability to pay the fee. Some argued that the IN
S should propose, publish, and elicit public comments on uniform guidelines for adjudicating fee waivers for all INS applications. Others argued that the INS should create a fee waiver process for asylum applicants under a separate regulation, independent of 8 CFR 103.7(c). Some proposed that asylum applicants filing through an approved voluntary agency or an accredited representative should receive automatic fee waivers. Many comments suggested that waiver guidelines should incorporate the poverty guidelin
es of the Department of Health and Human Services. Some comments suggested that a time limit be set within which the INS must make waiver determinations and, if the decision is not made within that time, that the waiver be granted. Comments also suggested that the fee-paying or waiver status of the applicant not be disclosed to the asylum officer adjudicating the claim. One comment suggested that the filing of a fraudulent fee waiver be used as evidence weighing against the applicant's credibility on the u
nderlying asylum claim.
Several comments stated that under section 286(m) of the Act, 8 U.S.C. 1356(m), the INS may not impose a fee for asylum applications. This section provides that the INS may set its fee for providing adjudication and naturalization services at a level that will ensure the full recovery of costs for those services, including those provided without charge to asylum applicants or other immigrants. Several comments also stated that a specific fee for asylum applications is unnecessary because after the implement
ation of asylum reform, the surcharge added to INS fees in conformance with section 286(m) should generate sufficient revenues to cover the costs of the asylum program.
A number of comments made recommendations for changing the fee proposal. One comment proposed setting the fee at $615, which is the estimated total cost of adjudicating an asylum application. Under this proposal, if the applicant could not pay the fee at the time of filing, then he or she should pay half of the fee at the time of filing and pay the balance within 90 days or at the time of the interview, whichever is sooner. One comment suggested loaning the entire cost of asylum processing ($615) to the ap
plicant. The loan could be paid back in one to three years as the person begins to work.
Some comments suggested that the fee be deferred so that a person granted asylum pay the fee when he or she applies for adjustment of status or for any other subsequent benefit under the Act. For those whose applications are denied and who subsequently seek another immigration benefit, such as adjustment of status upon marriage or reentry after deportation, the asylum fee would be collected at the time the applicant submits the respective application. The comments argued that applicants will be in a better
position to pay the fee at the time of these subsequent applications.
One comment suggested that the fee not be charged to those who file their asylum application before an immigration judge in exclusion or deportation proceedings. This comment noted that most of the alleged abuse of the asylum system occurs in applications filed with asylum officers and that it is unfair to charge a fee to those who are defending themselves in removal proceedings.
Response and Disposition: The comments received in response to the fee proposal have been carefully considered. It has been concluded that imposition of the fee at this time would likely impose administrative burdens that would not be offset by the anticipated receipts from the fee. Accordingly, the provisions relating to the fee are not included as part of the final rule. Adjudication of asylum applications before the INS will continue to be funded by way of a statutorily authorized surcharge assessed on
applications for other immigration benefits. Additional funding provided by the 1995 appropriations for Asylum Reform will provide resources for INS and EOIR. As part of an ongoing comprehensive economic review of its entire fee structure, the INS will examine alternative sources of funding for asylum adjudications, including the possibility of a user fee.
5. General (8 CFR 208.1)
a. Effective Date (8 CFR 208.1(a))
Proposed Rule: The proposed rule would have amended 8 CFR 208.1(a) to state that Part 208 applies to all adjudications of asylum applications, whether by an asylum officer or by an immigration judge, on or after the effective date of the final rule.
Comments: Many comments urged INS not to apply some or all of the proposed amendments to Part 208 to applications filed prior to the effective date of the final rule. These comments suggested that a "retroactive" application of the rule could result in different treatment for asylum applicants who filed at the same time, but prior to the effective date of the final rule--namely: claims filed and adjudicated before the effective date of the final rule will have been processed under the prior practice of a ma
ndatory asylum officer interview and opportunity to rebut a NOID; NOIDs are eliminated for claims filed but not adjudicated by the effective date and, under the proposed rule, such claims could be referred immediately to an immigration judge without an interview by an asylum officer. Some comments also noted that making the rule applicable to applications that have already been filed would have no effect in discouraging the prospective filing of non-meritorious applications.
A number of comments argued that the proposed rule is invalid under the Supreme Court's decision in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), which held that retroactive rulemaking is improper under the APA absent express statutory authority, because Congress has not given the Attorney General retroactive rulemaking authority through the Immigration and Nationality Act.
Finally, one comment argued that applying the proposed rule to "all adjudications" creates conflicts with judicial decisions and settlement agreements in litigation concerning asylum procedures.
Response and Disposition: These comments were carefully considered, but it was concluded that the effective date provision does not run afoul of Bowen v. Georgetown University Hospital. The rule is not "retroactive" within the meaning of that case because it does not alter the past legal consequences of past actions; rather, it affects only procedures that are to be followed in cases that are yet to be adjudicated.
The effective date provision applies only to adjudications of applications for asylum or withholding of deportation under 8 CFR Part 208. The rule therefore will not apply to the amended provisions of 8 CFR 242.17(e) regarding the use of information provided on an asylum application as the basis for establishing the alienage or deportability of an asylum applicant, or to the related provision at 8 CFR 208.3(c)(2). These amended provisions will apply only to applications received by the INS after the effecti
ve date of the final rule. Similarly, the effective date provisions do not affect 8 CFR 274a.12(c)(8). Thus, asylum applicants who have filed their applications prior to the effective date of the final rule will not be subject to the final rule's provisions governing initial applications for employment authorization. Sections 208.7(a) and 242.17(e) of the final rule will be amended to clarify this point. However, the rule governing extensions of employment authorization in Sec. 208.7(d) shall apply to all a
sylum applicants upon the effective date of this rule. Furthermore, the final rule cannot and does not intend to alter any obligations imposed on the INS or asylum applicants by judicial decisions or settlement agreements in cases such as ABC or Mendez. Finally, the rule will not apply to cases pending in district courts, courts of appeals, or the Supreme Court.
The other aspects of the rule, while they would affect pending applications, do not affect the past legal consequences of past actions, but merely affect procedures to be applied in the future. The main procedural differences under this rule are elimination of the NOID and written denial decisions by asylum officers. These changes, however, do not alter the legal circumstances or rights of any person with a pending application. No person eligible for asylum under existing regulations will be rendered inelig
ible due to any change made by this rule. Asylum claims will continue to be adjudicated under the same legal standard.
Limiting application of the final rule to applications filed after the effective date would severely impair efforts at asylum reform because it would require two parallel systems of adjudication: one for cases filed before the effective date, one for cases filed afterwards. Neither the Supreme Court's decision in Bowen nor any section of the APA requires such a result. The rule achieves the goal of streamlining the asylum process while maintaining the same legal standards used to adjudicate each asylum appl
ication in a timely manner. This provision of the proposed rule will be adopted in the final rule with amendments for clarity.
b. Qualifications and Training of Asylum Officers (8 CFR 208.1(b))
Comments: Two comments suggested that both immigration judges and asylum officers receive special training in international human rights law, conditions in countries of origin, and other relevant national and international refugee laws. One comment observed that the current rule that provides for extensive training of asylum officers has improved their decision-making, and reasoned that the same requirement would have a similar effect on the decisions of immigration judges.
Response and Disposition: The Department provides extensive initial training and continuing education to immigration judges that includes training related to asylum adjudications. The Department will continue to work to improve such training programs. However, the Department does not consider it necessary that there be specific regulatory requirements regarding the training of immigration judges.
6. Form of Application (Section 208.3)
a. Required Copies of Forms (8 CFR 208.3(a))
Proposed Rule: Section 208.3(a) of the proposed rule stated that the applicant file three copies of any supporting documentation and one completed fingerprint card (Form FD-258) for all individuals ages 14 years and older who are included on the application.
Comments: One comment stated that it is not clear whether two or three copies of the application are required, and another questioned the reason for requiring three copies of supporting documentation.
Response and Disposition: The final rule has been clarified to make clear that the I-589 and supporting documents, plus two copies, are required. Three copies of supporting documentation are required because one copy is retained by the INS in the applicant's alien registration file, one copy is forwarded to the Department of State under 8 CFR 208.4(a), and, if the application is not granted by the asylum officer, a copy of the application with all supporting documents is forwarded to the immigration judge u
nder the referral process described in 8 CFR 208.14(b). This provision of the proposed rule has been amended to clarify that the original and two copies of the application are required.
b. Use of Information in Application (8 CFR 208.3(c)(2))
Proposed Rule: Section 208.3(c)(2) of the proposed rule stated that information provided in an asylum application may be used to satisfy the Government's burden of proof in establishing deportability under section 242 of the Act, 8 U.S.C. 1252.
Comment: One comment asserted that the proposed rule should state that the information in the asylum application may not satisfy the clear, convincing, and unequivocal standard of evidence for deportability.
Response and Disposition: The Department believes that an alien's written admission of alienage and of having no lawful status in the United States is sufficient to satisfy the standard of evidence for establishing deportability. Consequently, the new asylum application will contain a clear warning that the application may be used to establish deportability. This part of the final rule will not be applied retroactively and will affect only those persons who make an application on the new form after the effe
ctive date of this rule. Accordingly, this provision of the proposed rule will be adopted without amendment in the final rule.
c. Delivery by Mail (8 CFR 208.3(c)(3))
Proposed Rule: Section 208.3(c)(3) of the proposed rule stated that mailing to the address provided on the application shall constitute adequate service of all notices and other documents, including any charging documents (Forms I-221 and I-122).
Comments: Several comments argued that delivery by regular mail of an Order to Show Cause (OSC) violates section 242B(a)(1) of the Act, 8 U.S.C. 1252b(a)(1), which requires that OSCs be presented by personal service or certified mail. Other comments argued that the OSC should be served by certified mail to ensure that it is actually received and that the rule does not take into consideration that an applicant may move after his or her application has been filed.
Three comments also addressed the issue of service to legal representatives. One comment stated that if the applicant is represented by an attorney, service should be made on the applicant's legal representative, rather than on the applicant. Another comment recommended that mailing documents to the applicant's attorney or representative also should constitute adequate service. Finally, a comment asserted that EOIR should be informed whether an applicant was represented by an attorney at the Asylum Office.
Response and Disposition: This provision is not intended to--and legally could not--alter the certified mail delivery requirements in section 242B of the Act, 8 U.S.C. 1252b. In cases where personal delivery of the OSC is not possible, OSCs will continue to be served by certified mail. This provision is adopted with an appropriate clarifying amendment in the final rule.
The recommendations regarding service upon attorneys or registered representatives have been considered carefully. The Department believes that the rules for service of an OSC must ensure that the person subject to proceedings has actually received the document. The Department also is concerned that an attorney retained for the asylum process might not remain as the applicant's attorney in exclusion or deportation proceedings. As this final rule is implemented, the INS will work with attorneys and advocacy
organizations to consider these and other proposals relating to the service of notices and other documents, but the suggestion of having charging documents mailed to an applicant's attorney or representative constitute adequate service has not been adopted.
d. Signatures under Penalty of Perjury (8 CFR 208.3(c)(4) and 8 CFR 208.3(d))
Proposed Rule: Sections 208.3(c)(4) and 208.3(d) of the proposed rule stated that the applicant and anyone other than an immediate relative of the applicant who prepares or assists the applicant in preparing the asylum application must sign the application subject to penalty of perjury. A person other than an immediate relative who prepares or assists the applicant in preparing the application also must provide his or her full mailing address. In addition, if the applicant later claims ignorance of the con
tents of the application, his or her signature may provide the basis for denial of the claim.
Comments: Several comments suggested that any preparer, including an immediate relative, sign the asylum application under penalty of perjury and provide an address. One comment argued that exempting family members from signing the I-589 weakens the regulation because unscrupulous preparers, to remain undetected, will not sign the application.
Many other comments criticized this provision as unduly punitive because many asylum applicants have limited education, are unfamiliar with United States laws, and rely on those who claim to be qualified to assist them with their asylum applications. Such applicants should not be subject to prosecution if there are errors in the application. Some comments asserted that this provision will prevent applicants from obtaining help in completing their applications. In addition, one comment claimed that those ass
isting applicants might fear reprisal from their own governments if their role in assisting asylum applicants were known. Another stated that organizations may not wish to sign the forms because of their unwillingness to incur potential liability for an inaccurate representation not known to them. One comment argued that subjecting persons other than the applicant to penalty of perjury places an undue burden on attorneys and translators who are assisting applicants but can do little to verify the veracity o
f the applicants' statements.
The comments made several recommendations directed at protecting applicants and the individuals and organizations who assist applicants. One comment recommended that only the preparers, not the applicants, should sign the asylum application subject to a penalty of perjury because genuine asylum-seekers, particularly those that do not speak English, may be unaware of the actions of an unprincipled preparer. One comment advocated that those who prepare asylum applications without charging the applicant a fee
should not be required to sign the form. Another comment suggested that if an improperly prepared asylum application is not signed by the preparer, the asylum officer should ask the applicant who prepared the application. With the applicant's permission, the asylum officer then could relay the information about the preparer to the appropriate local INS enforcement division.
Finally, two comments asserted that the signature requirement is too broad. The comments claimed that the signature requirement in the proposed rule is more sweeping than the requirement on the form itself, and that it fails to specify the degree of assistance that triggers the necessity to sign the form.
Response and Disposition: The requirement that the applicant and outside preparers sign the Form I-589 under penalty of perjury is necessary and appropriate for several reasons. An asylum applicant is seeking an important benefit and should be required to provide only truthful information to the Government. The evidentiary rules for adjudicating asylum applications treat the credible testimony of the applicant as sufficient to meet the applicant's burden of proof and thus there should be appropriate consequ
ences for making false statements. Those who assist in preparing applications also should bear these consequences if they have knowingly included false information on the application.
The fact that a signature is made under penalty of perjury does not, of course, alter the Government's burden to establish the elements of the crime in the event of prosecution. Many of the objections raised in the comments would apply to situations where perjury could not be proved. Nevertheless, those applying for asylum and those who assist others in doing so should have the same obligation to make truthful statements as persons who make other applications to the Government. These provisions of the propo
sed rule will be adopted in the final rule, with amendments for clarity and to eliminate unnecessary words.
e. Incomplete Applications (8 CFR 208.3(c)(5) and 8 CFR 208.3(c)(6))
Proposed Rule: Section 208.3(c)(5) of the proposed rule stated that an application that is incomplete or lacks a response to each of the enumerated questions may be referred to an immigration judge for adjudication or may be denied by the asylum officer. Section 208.3(c)(6) defined an incomplete application as one that does not include a response to each of the questions contained in the Form I-589, that is unsigned, that is unaccompanied by the required materials specified in paragraph (a) of this section,
or that is unaccompanied by the required fee or application for fee waiver.
Comments: Numerous comments criticized these provisions for establishing overly harsh penalties and for not including a sufficiently clear definition of what constitutes an incomplete application. The comments claimed that an application may be denied or referred because minor or irrelevant questions were not answered. The comments suggested that the applicant be given a chance to remedy such an omission. The comments also questioned whether an application would be deemed incomplete if certain questions wer
e answered but the responses lacked substance.
Several comments agreed that incomplete applications should not be adjudicated and recommended amendments to the rule. One comment suggested that this provision be moved to a new subsection and labelled "Summary Disposition--Action on Incomplete Forms." Another comment suggested that the term "incomplete" be deleted from the final rule in order to restrict the rule to allow denial or referral only when the applicant has been completely unresponsive to a question. A third comment advocated that incomplete ap
plications be returned to the applicant, rather than denying them or referring them to an immigration judge.
Response and Disposition: The final rule retains the current mandate that all asylum applicants who appear as scheduled will receive an interview with an asylum officer.
Accordingly, incomplete applications will not be denied or referred to an immigration judge without an interview. These sections of the proposed rule are therefore adopted with appropriate amendments in the final rule. The final rule provides that an incomplete application shall be returned by mailing it to an applicant within 30 days of receipt of the application by the INS; and that if an application has not been returned within this 30-day period, the application shall be deemed complete. Under section 2
08.7 of the final rule, if the application is incomplete, the 150-day period will not begin until the applicant submits a complete application. For clarity, the last sentence of Sec. 208.3(c)(6) of the proposed rule, defining an incomplete application, is moved to paragraph Sec. 208.3(c)(5) of the final rule. This definition also has been clarified to state that an application that is not returned to an applicant within 30 days of having been received by the INS shall be deemed complete.