• Arizona House Democrats

House and Senate Democrats letter opposing proposed federal rules changes on asylum

Wednesday, 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


Mrs. Alder Reid:

Please accept this letter as comments from the undersigned members of the Arizona House of Representatives and Arizona Senate. We write today to express our strong disagreement with many aspects of the Administration’s Proposed Rules on Asylum, as noted below. At the outset, we recognize that the United States of America is a nation of immigrants, the forefathers of which arrived at a continent occupied by sovereign indigenous communities.

The forebearers of this country, some of whom sought refuge from political and religious persecution, neither stopped in a third country on the way to North America seeking refuge in that country, nor did they seek to confirm that their oppressors were on-duty or acting on behalf of an official government. Those founding refugees sought freedom and safety from their abuse. While the centuries of colonization that followed proved devastating to the indigenous communities of this continent, the imperfect ideals of those who sought American shores in the pursuit of liberty should not be forgotten. With these Proposed Rules on Asylum, the United States is abandoning those ideals, and claiming a privilege to exclude those in need of refuge from these lands to which it has no moral claim. The United States should not adopt these proposed rules.


Although the United States Department of Justice (DOJ) and the United States Department of Homeland Security (DHS) state that the rule changes in EOIR Docket No. 18-0002 will "ensure that manifestly unfounded or otherwise abusive claims are rooted out and to ensure that meritorious claims are adjudicated more efficiently so that deserving applications receive benefits in a timely fashion," we believe the rule changes instead are in line with the Trump Administration's decisions to significantly decrease immigration to the United States, will end the asylum process as we know it and greatly impact the State of Arizona. In 2015, Arizona had over 40,000 resettled refugees with a total spending power of $780.9 million. Not only do refugees contribute to the Arizona economy by having high "entrepreneurship and homeownership rates" and by paying local and state taxes, they also paid about $168.3 million in federal taxes and are part of the fabric of our society. The rule changes will significantly decrease the individuals that are able to obtain asylum and participate not only in the Arizona economy and community, but throughout the United States. Our comment will address several of the proposed changes to asylum law that significantly undermine asylum.


First, the rule change being proposed regarding “rogue officials” is very concerning. The departments are proposing that an individual cannot claim torture by a public official "unless the public official committing the act is doing so under their official capacity … even if the actions cause pain and suffering that could rise to the severity of torture". This unprecedented analysis of the Convention Against Torture misunderstands the intended scope of protection written into the treaty, which necessarily includes persecution by private actors and “off duty” public officials if a government official acquiesces to such behavior. Although the proposed rule change misleadingly cites to Silva-Rengifo v. Att'y Gen. of U.S., 473 F.3d 58 to defend its articulation of acquiescence as constituting either willful blindness or actual knowledge, the Third Circuit held that “… the Senate could hardly have made it clearer that it did not intend “acquiescence” in the Convention to require a showing that the government in question was actually aware of the conduct that constitutes torture,” and the required showing of mens rea was only willful blindness. Id. at 69. To artificially create another “rogue official” limitation with this misreading, which would allow state actors to torture others so long as they do so in their free time, is an unacceptable reading of the CAT. For example, one of the reasons this is concerning is because, even if a government has ordered a public official to torture an individual, especially in an authoritarian regime, they will not admit that the government ordered the act or even knew about such an act. This will allow nation states to torture individuals without repercussions and will endanger those who, for example, are promoting democracy in non-democratic nation states.


A second proposed rule change that will negatively impact asylum as we know it is requiring adjudicators to consider a long list of adverse discretionary factors. One of the proposed factors that an adjudicator must consider when reviewing an asylum application is "the failure of an alien to seek asylum or refugee protection in at least one country though which the alien transited before entering U.S." This greatly impacts asylum seekers who are escaping from Central American countries and others who must travel by land to reach the U.S. However, it does not consider that the countries these individuals are passing through are not actually safe third country destinations. Common transit countries such as Mexico and Guatemala, for example, lack a "functioning asylum system that will not place asylum seekers or refugees at risk of being returned to a place where they will be persecuted or subject to additional persecution." According to Human Rights Watch, asylum seekers that were sent to Mexico were "targeted for life threatening violence including kidnapping, extortion, and sexual assault". Asylum seekers’ failure to seek asylum in a country that is unable to offer them safety should not be held against them by asylum adjudicators in the U.S.


Third, the rule proposes to exclude certain grounds for asylum, including claims related to gang recruitment and violence against women. These proposals are willfully blind to the realities of asylum-sending countries where gangs operate as quasi-government entities and violence against women is regularly acquiesced to by government officials. Currently individuals can seek asylum if they are fleeing to resist recruitment or coercion by guerilla, criminal, gang, terrorist, or other non-state organizations. As the United States, we should recognize that refusing recruitment in a gang-controlled society squarely constitutes taking a political stand and should be protected under asylum’s political opinion category. We should be discouraging recruitment around the world by such organizations instead of allowing them to forcefully recruit. Gender is another characteristic that is being removed from asylum consideration because, although it is a "group defining characteristic … one would be reluctant to permit for example half a nation's residents to obtain asylum on the ground of women are persecuted there." Once again as the United States, we should not allow for certain individuals to be persecuted in their homeland due to a characteristic they are not able to change. We provide people who experience persecution with a safe place to live and prosper.


Even though the departments state that the proposed changes are to make the process more efficient, the changes will greatly undermine the asylum process in the United States. As the United States and the State of Arizona, we should welcome into our community those who need a safe place to call home. As mentioned previously, asylum seekers who eventually become refugees are an important part of our community and the State of Arizona. As Arizona legislators, we oppose the Proposed Rules on Asylum.