Human Rights First’s Public Comment on the Biden Administration’s Proposed Use of Complex Bars in Preliminary Fear Screenings

Human Rights First submits the following comment in response to the Department of Homeland Security’s (“the Department”) notice of proposed rulemaking, Application of Certain Mandatory Bars in Fear Screenings (“Proposed Rule”) and respectfully requests the Department publish a notice in the Federal Register withdrawing it.

The Department should maintain the position on the application of mandatory bars in Credible Fear Interviews it took in 2022. The Proposed Rule’s reversal to allow for permissive application during Credible Fear Interviews is, as the Department recognized previously, both inefficient and contrary to congressional intent and United States treaty obligations.2 The application of the statutory bars to asylum in Section 208(b)(2)(A) of the Immigration and Nationality Act (“INA”) is notoriously complex. The interpretation of all of these bars has given rise to years — in some cases decades — of litigation. They frequently involve assessment of the reliability and context of foreign records, analysis of foreign laws, and fact-intensive assessments of an asylum seeker’s potential responsibility for bad acts committed abroad.