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EOIR Director instructs IJs and BIA on significant asylum reg

  1. Original Date Announced

    December 11, 2020

    In Policy Memo 21-09, the EOIR Director provides "an overview and summary" of the recently finalized rule revising standards and procedures for asylum, withholding of removal, Convention Against Torture relief, credible fear, and reasonable fear. Among the many points made about the new regulations:

    • The standard of proof for withholding of removal and CAT claims in expedited removal is raised from "significant possibility" of harm to "reasonable possibility."
    • Asylum officers must consider internal relocation and mandatory asylum bars during credible fear screenings.
    • An immigration judge should consider only the law of the applicable circuit when reviewing an asylum officer's negative fear determination and not the precedents of all circuit courts.
    • The definition of "frivolous" has been revised and expanded, and asylum officers are empowered to make frivolousness findings.
    • Immigration Judges may now pretermit an asylum application, sua sponte or upon a DHS motion, if the judge finds the applicant did not make a prima facie claim.
    • Several critical legal definitions and standards are changed, including membership in a particular social group, political opinion, persecution, nexus, internal relocation, firm resettlement, public officials acting under the color of law, evidence based on stereotypes, and the exercise of discretion.
    • Information on applications for protection may now be disclosed in a number of immigration enforcement or criminal law enforcement scenarios.

    [ID #1241]

    PM 21-09 Guidance Regarding New Regulations Governing Procedures For Asylum And Withholding Of Removal And Credible Fear And Reasonable Fear Reviews
  2. Effective Date

    January 11, 2021
  3.  
  4. Biden Administration Action: Revoked/Replaced

    May 14, 2021

    5.14.2021 Rescission of PM 21-09

    This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.

    On May 14, 2021, EOIR issued this Policy Memo 21-22, rescinding and cancelling Policy Memo 21-09.

    View Document
  5. Biden Administration Action: Modified

    March 29, 2022

    2022.03.29 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers

    This Biden administration policy modifies the Trump-era policy identified in this entry.

    On March 29, 2022, DHS and DOJ issued a joint IFR on asylum processing. The IFR significantly changes the regulations governing the processing of asylum claims by individuals subject to expedited removal. The IFR is effective 5/31/22. The IFR states that comments will be accepted until 5/31/22; they will be considered and addressed in a final rule. Comments on proposed revisions to the Form I-765 instructions are also invited.

    View Document

Current Status

Not in effect
May 14, 2021
Acted on by Biden Administration
March 29, 2022
Acted on by Biden Administration

Original Trump Policy Status

Status: Final/Actual
Trump Administration Action: Agency Directive
Subject Matter: Hearings and Adjudications
Agencies Affected: EOIR

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