December 11 marks the two-year anniversary of the publication of the Trump-era regulations dubbed the “Death to Asylum” regulations by advocates and the “Omnibus asylum” regulations by the government. The rules seemed designed to make many, if not most, claims for asylum and related protection fail. The regulations were set to go into effect on January 11, 2021, but, fortunately, were enjoined in Pangea Legal Services v. Department of Homeland Security prior to that date and they have therefore never been officially implemented. Also enjoined in a case by the same name were regulations that greatly expanded mandatory denials based on criminal grounds; the National Immigration Project is counsel on that case.
Despite never being in force, both of these enjoined regulations remain on the government website, causing confusion for anyone doing internet research. For example, a search for 8 CFR 208.13, “asylum eligibility,” that links to the government website could lead an asylum seeker, or their counsel to incorrectly conclude that asylum can be denied as a matter of discretion if the asylum seeker entered between ports of entry or did not seek asylum in a third country on the way to the United States. There is no indication on the website that these regulations are enjoined. Likewise, the Cornell Legal Information Institute website (the first one that comes up in most google searches for 8 CFR) draws its regulations directly from the government website and also includes the enjoined regulations without any flag that they are not in effect. Pangea counsel raised this issue in their litigation, but was unable to convince the attorneys for the government or the Judge to take any action. Retired Immigration Judge Jeff Chase, and one of the founders of the Retired Immigration Judges’ Roundtable, raised this issue on his blog nearly two years ago.
Because of the piecemeal way that rulemaking is conducted, with some new subsections added to existing sections and others deleted, there is no easy way to know which regulations are subject to any of several injunctions addressing the regulations and which are not. Even practitioners who are fortunate enough to have access to commercial databases face difficulties. These paid databases offer the ability to Shepardize the regulations, showing viewers a multitude of red and yellow flags, pointing out that litigation has invalidated or called into question some of the regulations, but leaving it to the practitioner to try to sort out which version of each section of the regulation is currently in effect. To do so, a practitioner would have to read through several overlapping injunctive orders and multiple versions of the regulations in different years of the Federal Register to understand which rules are operative.
To highlight the problem further, recently the Second Circuit Court of Appeals issued a decision discussing the legal standard for Convention against Torture claims, Garcia-Aranda v. Garland,. During oral argument in the case, Judge Walker mistakenly cited to a portion of the enjoined Death to Asylum regulations that set forth a slightly different legal standard for Convention Against Torture (CAT) claims from the previous version. DOJ counsel sent the Second Circuit panel a 28j letter explaining the erroneous citation. Despite this notification, the published decision still quotes the enjoined regulation at footnote 6.
It may be that in Shepardizing the regulation the opinion’s author saw that there was a March 2022 date next to the current version of the regulation, but, the only part of the regulation that was amended this year was the section granting asylum officers authority to conduct CAT interviews pursuant to the Asylum Processing Rule. The section of the regulation the Court cited was issued in 2020 and is still subject to the Pangea injunction. If federal appellate judges cannot sort out what regulations are in effect, how can practitioners with high caseloads and limited resources be expected to do so? Or, for that matter, how can immigration judges with crushing dockets and very limited support staff understand which regulations are in effect?
My workaround to the current situation is to use a paper version of the regulations from 2015, which is obviously not ideal. In fact, at a recent training given by sitting Board of Immigration members, one of the speakers (a BIA member) gave similar advice to never look at the current online regulations. Another workaround is to go to the government regulations website that lists regulations by year and access the 2020 version of 8 CFR. Since the Death to Asylum regulations had a January 11, 2021 effective date, they were not yet included in the 2020 regulations, but there may be earlier enjoined Trump-era regulations there, given the onslaught of regulations during his administration. Practitioners may also consider subscribing to AILALink, AILA’s online research database, which annotates which regulations are currently enjoined.
But, of course, we shouldn’t need workarounds to figure out what the law is. The government has a responsibility to make currently applicable law easily accessible to attorneys and litigants. More importantly, the Biden Administration must do more than kick the can down the road on regulations that gut asylum protections. For nearly two years, it has simply held litigation that has preliminarily found the rules to be unlawful in abeyance “pending rulemaking,” but that rulemaking has not happened. While the deadline set by President Biden through Executive Order to publish regulations on the meaning of “particular social group” has long come and gone, publishing rules eliminating the Death to Asylum regulations, and updating the official websites is equally important. As long as these regulations remain on the books and on the internet, sowing confusion even among federal appellate judges, Stephen Miller continues to realize his dystopian vision of asylum law.