Center for Gender & Refugee Studies Issues Public Comment on Executive Office for Immigration Review Proposed Rule
The comment was written co-signed by
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I. INTRODUCTION
The present comment relates to the Joint Notice of Proposed Rulemaking by the
As experts in asylum law, we focus our comment particularly on the Rule's compliance with the international legal obligations of
II. EXPERTISE OF THE CENTER FOR GENDER & REFUGEE STUDIES
CGRS was founded in 1999 by
We take the lead on emerging issues, participate as counsel or amicus curiae in impact litigation to advance the rights of asylum seekers,/3 produce an extensive library of litigation support materials, maintain an unsurpassed database of asylum records and decisions, and work in coalitions with immigrant, refugee, LGBTQ, children's, and women's rights networks./4
Since our founding, we have also engaged in international human rights work with a strong emphasis on
As a critical part of our mission, CGRS serves as a resource to decision makers to promote laws and public policies that recognize the legitimate asylum claims of those fleeing persecution, with particular expertise on women, children and LGBTQ refugees. Our goal is to create a
III. THE AGENCIES DID NOT PROVIDE SUFFICIENT TIME TO COMMENT ON THE PROPOSED RULE
We begin by requesting the full 60-day period for public comment on the Rule. We joined over 500 other organizations on
We also support the reasoning of a similar request dated
In addition to the letters referenced above, we make the additional observations in support of our request for the full 60-day period for public comment. First, since we signed the letter of
Our campus remains partially closed and our staff is required to continue to telework. Many of us have family responsibilities which exacerbate the difficulties of working full-time from our homes.
Finally, we note that the federal holiday during the brief time allowed for public comment further reduced the number of work days in the comment period. All of these factors have impeded our ability to analyze more thoroughly the lengthy and complex Rule, research all potentially relevant international and domestic law sources, and provide fully responsive comments. If the comment period is extended, we reserve the right to expand our analysis and to resubmit a more complete comment with additional supporting documentation.
IV. THE PROPOSED RULE ABUSES THE RULEMAKING PROCESS
The Proposed Rule is a major one that would upend well-settled processes and long-established legal interpretations for adjudicating claims for protection. The Departments have not justified with evidence a curtailed comment period or the designation of the rule as not "major" or "significant." 85 Fed. Reg. 36264, 36289 (
Additionally, the rushed timing and sheer scope of this Rule is an abuse of the administrative rulemaking process. Many elements of the Rule would codify erroneous decisions made during this administration by the
Bypassing the litigation process as well as the normal rulemaking process, the administration seeks to codify its erroneous legal decisions and policies just over 100 days before a presidential election which numerous polls indicate the incumbent is likely to lose. The administration's haste to put this regulation in place is revealed by the unjustifiably short period provided for public comment, and the agglomeration of dozens of substantive and procedural changes to the asylum system.
V. THE PROPOSED RULE FAILS TO ENSURE COMPLIANCE WITH
A. The Relevant International Legal Obligations
The relevant international legal obligations with which
Under the Refugee Protocol,
The corresponding provision in
Additionally,
Under CAT,
The corresponding regulation again incorporates the treaty obligation, providing that a person will be eligible for protection under CAT if he or she establishes "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal."/20
By becoming a state party to these treaties, we have undertaken to carry out their terms in good faith./21
Furthermore, the
In relevant part, these treaties require
VI. CONCLUSION
In conclusion, we wish to emphasize that this comment was prepared with an insufficient amount of time, and does not reflect the full scope of our objections to the Rule, nor the breadth of legal authority which supports complete repudiation of the Rule.
We urge the Departments to withdraw this Rule in its entirety. We also urge the Departments to provide the empirical evidence we have requested and explain how their analysis of that evidence should inform any future proposals to change asylum law and procedures. The single most objectionable aspect of the Rule is its disregard for
Thank you for the opportunity to submit comments on the proposed Rule. Should you have any questions, please contact
View full comment at: https://downloads.regulations.gov/EOIR-2020-0003-6004/attachment_1.pdf
Sincerely,
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Footnotes:
1/
2/ 21 I. &
3/ See, e.g.,
4/ See, e.g., our Immigrant Women Too campaign.
5/ See, e.g.,
6/ Request to Provide a Minimum of 60 Days for Public Comment,
7/ Request for 60-Day Comment Period for
8/ See UC Hastings Law, Guide for Returning to the Workplace,
9/ See Reopening San Francisco.
10/
11/ See, e.g., East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020) (upholding injunction against rule barring asylum for individuals who enter between ports of entry); O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (vacating rule barring asylum for individuals who enter between port of entry); East Bay Sanctuary Covenant v. Barr, --- F.3d ----, 2020 WL 3637585 (9th Cir. 2020) (upholding injunction against rule barring asylum to individuals who have transited through a third country en route to
12/ See, e.g., De Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020) (finding the Attorney General's decision in Matter of A-B- should not be interpreted to categorically preclude claims involving domestic violence survivors and that the decision rests on arbitrary reasoning); Juan Antonio v. Barr, 959 F.3d 778, 790 n.3 (6th Cir. 2020) (finding persuasive ruling of other court that Matter of A-B- is arbitrary, capricious and contrary to law).
13/ 606 U.N.T.S. 267 (entry into force 4 Oct. 1967).
14/ 1465 U.N.T.S. 85 (entry into force 26 June 1987).
15/ 189 U.N.T.S. 137 (entry into force 22 April 1954).
16/ 1951 Convention Relating to the Status of Refugees, art. 33, binding on
17/ 8 U.S.C. 1231 (b)(3)(4).
18/ 8 U.S.C. 1158 (b)(1)(A).
19/ CAT, art. 3.
20/ 8 C.F.R. 208.16 (c) (2).
21/ Vienna Convention on the Law of Treaties, art. 26. 1155 U.N.T.S. 331 (entry into force 27 Jan. 1980).
22/ INS v. Cardoza-Fonseca,
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The proposed rule can be viewed at: https://beta.regulations.gov/document/EOIR-2020-0003-0001
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