Appendix A I-589 Public Comments and Responses Matrix.

Appendix A I-589 Public Comments and Responses Matrix.pdf

Application for Asylum and for Withholding of Removal

Appendix A I-589 Public Comments and Responses Matrix.

OMB: 1615-0067

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Nature of
Comments
Time and Cost
Burden,
Generally

Public Comments

Departments’ Responses

The commenters expressed concern that the proposed revisions substantially Response: The Departments acknowledge
increase the time and cost burden on asylum applicants.
that the proposed and final Form I-589 and
accompanying instructions issued in
conjunction with the Procedures for
The commenters believe that the proposed revisions significantly increase
the time and cost burdens for aliens seeking protection from persecution and Asylum and Withholding of Removal;
Credible Fear, and Reasonable Fear
torture, and that the increased burden would fall particularly heavily on
Review Notice of Proposed Rulemaking
unsophisticated aliens without representation and often without strong or
(NPRM) and Final Rule increase the time
any English language skills, aliens with claims based on membership in a
and cost burdens for applicants and legal
particular social group, and aliens with political opinions reflecting the
representatives. See 85 FR 36264 (June
modern world. The commenter noted that in the Form I-589 supporting
15, 2020). In the NPRM, the Departments
statement, the Departments acknowledged a six-hour increase in the
stated that the estimated hour burden had
estimated time burden, but the Departments reported no change to the
estimated annual cost burden on applicants. The commenter noted that, for increased from 12 hours to 18 hours. See
85 FR at 36290. The estimated hour
the newly proposed version of the Form I-589, the average time estimated
to complete the form is a full 50 percent higher than what was calculated in burden has been increased to 18.5 hours.
the Form I-589 Supporting Statement available on the Office of Information This estimate is higher than the estimate
provided in the NPRM because the
and Regulatory Affairs (OIRA) website from May 2019 (18 hours as
Departments reevaluated their projections
opposed to 12 hours). The commenter noted that the other numbers in the
May 2019 Supporting Statement are almost identical to those set forth in the and determined that the hourly burden per
response was likely to be higher than had
current NPRM, and that there is no explanation in the current NPRM as to
why the cost burden would be almost identical as the May 2019 Form I-589 been initially estimated. See Procedures
for Asylum and Withholding of Removal;
Supporting Statement while the estimated number of hours needed to
Credible Fear and Reasonable Fear Review
complete the form would increase by 6 hours.
Final Rule, III. Regulatory Requirements,
The commenter believes that the actual collection of information required in G. Paperwork Reduction Act.
the proposed revisions is extraordinarily burdensome, far exceeding the 18
hours indicated in the notice of information collection. The commenter
The estimated total cost burden has been
claims that the revised form would lead applicants and legal representatives increased to $70,406,400 as a result of a
to spend several additional workdays on each application. The commenter
reevaluation of the estimated cost that
noted that the sensitivity and emotional cost of recounting acts of
applicants may incur for additional

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
persecution, intimidation, and harm take a devastating toll that cannot be
measured solely in economic terms.

expenses. More information will be
provided in the I-589 supporting statement.

The commenter believes that the Form I-589 Supporting Statement does not
explain what the connection is between the average hourly wage in the
United States and the cost of completing the form. The commenter states
that while the Departments may be making this calculation based on the
time that an individual would be unable to work because they would be
burdened with completing the form, the calculation makes little sense when
the primary cost of completing the application would be paying for an
attorney.

In response to the commenters’ concerns,
the Departments have abandoned or
revised certain proposed questions to help
reduce the burden on applicants and legal
services providers. Additional details
regarding which proposed questions have
been abandoned or revised are provided in
the responses below.
The Departments also updated the Form
instructions to reflect regulatory text
changes made in the Procedures for
Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review
Final Rule, as compared to the NPRM.

Impact on Asylum The commenters expressed concern that the changes to the form will
Applicants
disadvantage asylum applicants and put genuine asylum seekers at risk of
erroneous denial and subsequent deportation to a country where they will
face harm.
The commenter believes that the proposed revisions are inconsistent with
fundamental due process principles, and likely to have a devastating impact
on pro se applicants, particularly on indigent or unrepresented parties,

Response: The I-589 Form and
instructions provide adequate detail and
guidance on the information that must be
provided in the application. The additional
questions are meant to account for the
regulatory changes in the related
rulemaking action. The questions that
have been added to the form have
2

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
and/or those with limited English or education, and that due process
requires a meaningful opportunity to be heard and to present evidence
orally. The commenter believes that asylum seekers who are detained are
unlikely to have legal representation, and have often recently arrived in the
U.S., with little or no English language skills, familiarity with the U.S. legal
system, or expertise in our asylum laws. The commenter claims that
applicants will now, essentially, be required to present all of their legal
arguments through the extensive and highly complicated questions on the
revised form. The commenter also claims that, without the assistance of an
attorney, it will likely be impossible for asylum seekers to fully complete
the new version of this form.

accompanying explanations in the
instructions and are designed to elicit the
relevant information needed for
adjudicators to make informed decisions.
The Departments acknowledge that
applicants may make errors when
completing the I-589 Form, and consistent
with current practices and procedures,
adjudicators will continue to weigh any
evidence presented and assess any errors,
as needed.

The comments related to the Asylum
Application, Interview, and Employment
Authorization for Applicants, 85 FR
38532, are outside the scope of this
information collection action. The
Departments recognize that completing the
I-589 form will take additional time, as
was explained in the Procedures for
Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review
The commenter believes that given these conditions, the proposed revisions NPRM. See 85 FR at 36290. However,
the I-589 form and instructions revisions
would require more time from asylum seekers and volunteers and increase
associated with the rule do not prevent
the probability of errors. The commenter believes that any error would
have potentially devastating consequences, including having an immigration applicants from applying for asylum or
work authorization.
judge pretermit an application if it is not filled out correctly, or having an
immigration judge make a frivolous finding under the expansive new
A Form I-589 is required of aliens who
definition in the proposed rule, which could subject the asylum seeker to a
apply for asylum affirmatively before U.S.
permanent bar on all immigration relief based on an immigration judge’s
Citizenship and Immigration Services
opinion that the application was without merit.
(USCIS) or defensively, before the
The commenter believes that the proposed revision would severely impact
the rights of asylum seekers subject to the Migrant Protection Protocols
(MPP). The commenter believes that access to counsel for aliens subject to
MPP is even less available than for those held in ICE detention and that
those aliens lack access to safety and security, along with the ability to
access interpretation resources that would be available in the United States.
The commenter notes that given these obstacles, most asylum applicants in
MPP proceedings are only able to submit threadbare applications with the
support of volunteer interpreters unfamiliar with asylum law.

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
The commenter state that the proposed changes to the form have the
potential to prevent thousands of asylum seekers from having a fair chance
at applying for asylum, simply because they do not speak or read English.
The commenter states that the vast majority of clients are survivors of
torture and trauma, and many clients are unable and unwilling to speak
about what happened to them when they first arrive in the United States.
The commenter works with clients over an extended period of time to help
clients rebuild their sense of safety and trust, and notes that takes time to
prepare clients to safely revisit traumatic events in their mind so they can
collect details needed for their personal statement. The commenter believes
that penalizing asylum seekers because of their inability to converse in
English or because they need time, expertise, and flexibility to recall
traumatic events is cruel and inhumane.
The commenter believes that in addition to the cost of attorneys’ fees, there
would be additional out of pocket costs for asylum seekers who would, for
the first time, have to prove that they have paid income taxes. The
commenter believes that, as a result of newly promulgated rules governing
initial employment authorization documents for asylum seekers, the vast
majority of asylum seekers who file a Form I-589 after August 25, 2020,
will likely not be able to obtain an employment authorization document
(EAD) before their asylum application is adjudicated. The commenter
believes that the unfortunate result of the Asylum Application, Interview,
and Employment Authorization for Applicants Final Rule (Asylum EAD
Final Rule), 85 FR 38532, will likely be that many asylum seekers will be
unable to work lawfully and will therefore have to spend time and money
with a tax professional in order to file taxes prior to applying for asylum.
The commenter believes that the Asylum EAD Final Rule will also put
pressure on counsel and asylum seekers to file the I-589 Form as quickly as
possible to get the much longer, 365-day clock started. The commenter
believes that there is significant tension between the Asylum EAD Final
Rule and this information collection, which may require many weeks and

Executive Office for Immigration Review
(EOIR) (including those individuals placed
in the MPP program). The Departments
recognize the potential challenges faced by
individuals subject to MPP but must
balance these difficulties with the
requirements of the proposed regulatory
changes. Completing the revised I-589
form may take additional time, but the
form and instruction changes allow for the
alien to provide the required information
for adjudication by an immigration judge
or asylum officer, in concert with proposed
regulatory changes.
The Departments disagree that the addition
of income tax payment-related questions in
Part C. Additional Information about Your
Application, Questions 19.E. through
19.G., will lead to additional costs for
asylum applicants. Regardless of whether
the Form I-589 includes a tax paymentrelated question, an applicant’s tax
payment obligations remain the same.
Nevertheless, in response to the
commenters’ concerns, the Departments
have abandoned or revised certain
proposed questions to help reduce the
burden on applicants and legal services
providers. Additional details regarding
which proposed questions have been
4

Nature of
Comments

Impact on
Unaccompanied
Alien Children

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
multiple meetings with counsel to prepare. The commenter urges the
agencies to rescind this data collection, at least until they are able to
accurately assess the cost of the changes in the form and provide the public
with accurate data.

abandoned or revised are provided in the
responses below.

The commenters believe that the proposed revisions pose specific
challenges for unaccompanied alien children (UAC).

Response: The Departments acknowledge
the concerns of the commenters, but
disagree that the proposed revisions that
require applicants to provide additional
details about their claims on the Form I589 should be eliminated. The additional
questions on the form offer applicants,
including unaccompanied alien children,
additional opportunities to provide
information that is relevant to the
adjudication. The accompanying
instructions also provide additional
information to help applicants complete
the form. Moreover, information
regarding the applicant’s ability to
supplement the application is provided in
Part I. Filing Instructions, Section V.
Obtaining and Completing the Form.

The commenter states that applicants for protection, particularly children,
who fear or have experienced cruel or inhuman treatment may be unable to
elaborate on their experiences in detail at the time they prepare their written
applications. The commenter notes that the applicant may need to file the
application rapidly to avoid being forced to seek an exception to the oneyear filing deadline, or at the behest of an immigration judge. The
commenter notes that, at that point, the applicant may not have obtained
assistance of counsel or therapeutic support for the process of recounting
traumatic events. The commenter believes that requests for detailed
information should be eliminated from the proposed instructions and
replaced with an instruction reminding the applicant of future opportunities
to supplement the record.
The commenter believes that, like the general population of noncitizens in
removal proceedings, UAC often must face the system without legal
representation. The commenter notes that UACs are a vulnerable
population that often do not know or understand the circumstances of their
persecution or their flight from their country of origin. The commenter
believes that the proposed revisions force UAC to provide details not
previously required regarding the circumstances of their persecution, the
reason for their persecution, their travel through other countries, their family
members’ travel through other countries, and their family members’
immigration history in other countries, including the United States. The
commenter believes that the proposed revisions pose an added challenge for

The Departments considered the
alternative proposal of creating a second
form for unaccompanied children;
however, the Departments decided to
continue using a single form for all
applicants in the interest of maintaining
consistency and continuity across
adjudications.
5

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
all applicants, and UAC are particularly harmed by these complex
questions.
The commenter believes that if the Departments persist in revising the form,
they must consider creating a second form for UAC, who should not be
expected to answer many of the questions contained in the form.

Impact on Legal
Services
Providers

The commenters believe that the proposed revisions to the form and
instructions place a burden on legal services provides and preclude legal
services providers from providing pro se legal assistance to applicants.
The commenter believes that, given the additional four pages of substantive
questions on the proposed form, attorneys who prepare the application
would no longer be able to file a basic form with the intention of filling in
the details of the claim later, after weeks or months of working closely with
their client prior to an interview or hearing. The commenters believe that,
instead, attorneys would need to understand every detail of the case, from
the exact delineation of the applicant’s particular social group, to whether a
public official who acquiesced in torture was acting in an official capacity,
and how that official became aware of the harm that the applicant suffered.
The commenter notes that attorneys cannot generally elicit this level of
detail about a case in the first few meetings.
The commenter believes that, in addition to the time that an attorney must
spend with a client to reach a level of trust to elicit this level of factual
detail, the NPRM does not take into account the fact that the proposed rule
radically changes how asylum applications would be adjudicated. The
commenter claims that, as a result, even an experienced asylum attorney
would have to spend more hours on every case researching how the new
rules intersect with existing law, what injunctions are currently in effect
against rules that have been successfully challenged, and would need to
speak with colleagues about how the new rules are being interpreted. The

Response: The Departments acknowledge
that the revised Form I-589 and
accompanying instructions increases the
time and cost burdens for applicants and
legal services providers. The Departments
are balancing the need to obtain
information to make informed decisions
against the burden that the application
places on applicants and legal services
providers and believe that the revised I-589
form and instructions strike the adequate
balance, in light of the related regulatory
changes. The additional questions in the
form are designed to help implement the
related regulatory changes. The form and
instruction changes are also meant to
encourage asylum applicants to provide
meaningful and relevant information on
the application.
The estimated total cost burden has been
increased to $70,406,400 as a result of a
reevaluation of the estimated cost that
respondents may inquire for additional
expenses. More information will be
6

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
commenter believes that the notion that the cost to a client for this level of
attorney work would run from $20 to $1000 is absurd and the Supporting
Statement that set the highest possible cost for attorneys’ fees in completing
the I-589 is likely a vast underestimate.
The commenter believes that attorneys who meet their clients after they
have already submitted their application pro se will have a huge burden of
making amendments and explaining to the department or court the reasons
why the application may have been completed as a result of an error related
to language or educational barriers or both. The commenter believes that
attorneys will have to take on the large task of ensuring that any mistakes or
issues with the initial applications are remedied prior to their client’s next
steps in the application process which in itself is a time-consuming process.
The commenter notes that many asylum seekers are survivors of torture and
trauma and the process of drafting a client declaration and developing a
claim often takes several months and sometimes years. The commenter
believes that the deep stigma, shame, and mental health ramifications of the
persecution endured, combined with a lack of accessible and affordable
mental health services for asylum seekers, can make it very difficult to fully
flesh out the asylum claim before an asylum interview or master calendar
hearing in immigration court.
The commenter believes that the inability of attorneys to make valid and
impactful changes to their clients’ record will cause further delay and
backlogs in an already overwhelmed system. The commenter believes that
these hurdles, created by the new form, do not create an environment
conducive with efficiency; but rather, put obstacles in place for each and
every person that comes in contact with the immigration system no matter
what role they play.
The commenter believes that the proposed revisions ignore the significant
reliance interests of the commenter and organizations like it. The

provided with the I-589 supporting
statement
The submission of complete applications
ensures that asylum officers and
immigration judges have the information
needed to make informed decisions about
applications for asylum, withholding of
removal, and deferral of removal, as
needed. The Departments believe that the
changes to the form and instructions
neither preclude nor inhibit asylum
applicants from seeking or obtaining pro se
legal assistance.
Nevertheless, in response to the
commenters’ concerns, the Departments
have abandoned or revised certain
proposed questions to help reduce the
burden on applicants and legal services
providers. Additional details regarding
which proposed questions have been
abandoned or revised are provided in the
responses below.
The Departments believe that the
commenter’s statements about reliance
interests and burden pertain to the
regulatory changes (“The commenter trains
its staff, volunteers, and pro bono attorneys
on asylum law …The commenter also has
intake procedures …that screen for and
7

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
commenter is dedicated to providing legal counsel and support to those
seeking refuge in the United States. As such, the commenter has developed
a wealth of materials, information, and media to educate, assist, and support
asylum seekers. The commenter trains its staff, volunteers, and pro bono
attorneys on asylum law using curricula that have been standardized and
perfected. The commenter also has intake procedures and forms and Know
Your Rights materials that screen for and discuss the parameters of asylum
as it currently exists. The commenter believes that the proposed revisions
would cause the commenter to expend significant resources to revise,
reprint, and retrain staff on all of the materials and procedures, to the
detriment of the commenter and the communities it serves.
The commenter believes that the information required by the proposed
revisions effectively precludes pro se assistance. The commenter believes
that the proposed revisions effectively preclude nonprofit organizations from
providing pro se help because they require an applicant to provide legal
analysis, making it nearly impossible for a pro se adviser to avoid applying
applicable laws to the facts of the case in order to complete the form. The
commenter believes that the estimated 18-hour response time for the revised
form will severely limit the number of applicants who can receive
assistance and counsel from non- profit legal service providers. Assuming
that the commenter could find a way to provide pro se assistance, the
commenter believes that the amount of time required to complete the form
would pose another insurmountable obstacle.

Impact on Asylum
Officers and
Immigration
Judges

The commenter believes that most of the threshold questions and prompts
on the form have become more specific and rigid, and that asylum officers
and immigration judges will bear the burden of fact checking and
researching country conditions.
The commenter believes that the heightened burden on the applicant will
create an even higher responsibility for asylum officers and immigration

discuss the parameters of asylum as it
currently exists,”) (emphasis added). The
Departments stated in the proposed rule
that “Comments received on the
information collection that are intended as
comments on the proposed rulemaking
rather than those specific to the collection
of information will be rejected.” The
Departments recognize that some of
commenter’s materials would need to be
amended, but all of the form and
instructions revisions are intended to
reflect only the changes proposed by the
rule. Accordingly, the Departments will
not respond further on the reliance interests
portion of the comment.

Response: The Departments disagree that
the revised Form I-589 and accompanying
instructions imposes a burden on asylum
officers and immigration judges. The
additional questions on the form are
designed to help implement the revised
regulations and ensure that asylum officers
8

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
judges to ensure that applications are all in compliance with the newly
proposed rules, specifically, the rules related to the level of detail required
for describing the persecution an applicant has faced. The commenter
believes that asylum officers and immigration judges are ostensibly given
broader discretion when it comes to granting asylum and these decisions
must be made on the basis of very rigid and structured parameters that do
not in fact allow the officer or judge to use their best judgment, but rather
require all successful asylum applications to fit within certain parameters.
The commenter believes that requiring applicants to articulate the
“boundaries of a particular social group” and the “knowledge requirement
for persecution by a government official” are all facts and evidence that an
applicant may not have readily available to them within the one-year filling
timeframe. The commenter believes that the full articulation of a particular
social group and its boundaries generally requires extensive country
conditions research and even expert testimony on country conditions. The
commenter believes that the physical application does not have enough
room to allow an applicant to thoroughly discuss these claims in depth as
required under the new rules. The commenter believes that asylum officers
and immigration judges will bear the burden of fact checking and
researching country conditions themselves before deciding whether an
applicant is, in fact, a part of a social group or if they have been targeted by
their home government. The commenter believes that the current rules
allow applicants to provide a full developed record at a later date and leaves
room for a speedier asylum application process. The commenter believes
that this makes sense given that country conditions are constantly evolving
and will have to be revisited at the time of adjudication.

and immigration judges have the
information needed to make informed
decisions about applications for asylum,
withholding of removal, and deferral of
removal.
Asylum officers receive significant
specialized training in international human
rights law, nonadversarial interview
techniques, and other relevant national and
international refugee laws and principles
and also receive information concerning
the persecution of persons in other
countries on account of race, religion,
nationality, membership in a particular
social group, or political opinion, torture of
persons in other countries, and other
information relevant to asylum
determinations. See 8 CFR 208.1(b).
Asylum officers are thus qualified to make
determinations regarding asylum claims.
Immigration judges also receive extensive
training and possess the experience
necessary to adequately interpret and apply
the relevant regulations and statutes. See 8
CFR 1003.10(b). Immigration judges
already have extensive experience
weighing evidence and interpreting and
applying complex laws as required by
statutes and regulation.

Nature of
Comments

Complexity of
Form and
Instructions

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
Response: The Departments acknowledge
the concerns of the commenters. However,
the Departments disagree that the
additional questions will make it
impossible for applicants to have their
claims considered by the Departments.
The commenter believes that the form and instructions to file for asylum
The Departments disagree that the revised
and related relief should be simple enough for unrepresented applicants to
form and instructions are meant to
complete the form and have a day in court before the immigration judge or
an interview before an asylum officer. The commenter is concerned that this intimidate or discourage asylum seekers.
form will lead to confusion and many asylum seekers being unjustly barred To the contrary, the proposed revisions
give applicants additional opportunities to
from asylum.
provide information by adding prompts
The commenter is very concerned that the additional four pages of complex and questions that elicit the relevant
questions on the proposed form will make it impossible for pro se applicants information. For example, the revised
to have their cases heard at all. The believes that the additional questions in questions related to past harm,
the proposed form include complex questions combining facts and law. The mistreatment, or threats and fear of future
commenter believes that pursuant to recently imposed policies under which harm or mistreatment in Part B.
Information About Your Application,
U.S. Citizenship and Immigration Services (USCIS) may reject any forms
Question 1.A through 1.D., include more
with any blank fields, applicants may be unable to have their applications
opportunities for applicants to provide the
accepted and adjudicated at all. The commenter believes that pro se
appropriate details about the harm they
applicants face the real risk of answering these questions incorrectly and
then facing adverse credibility decisions when an adjudicator faults them for experienced or fear and the reason(s) for
harm, mistreatment, or threats. This
testifying inconsistently with the responses on their form.
revised section offers additional, focused
prompts to encourage applicants to provide
The commenter believes that expanding the form and requiring applicants
the information needed.
to make complicated legal conclusions does not minimize the burden of the
collection of information on those who are to respond. Furthermore, the
The Departments believe that the form
commenter believes that the proposed revisions are not necessary for the
allows ample opportunity for applicants to
proper performance of the functions of the Departments. The commenter
present relevant information, including
claims that the revisions will sow confusion in an already chaotic and
applicants who are detained. Even if an
complex asylum system where many aliens struggle to navigate the
applicant provides irrelevant information,
application process and court system without legal representation. The
The commenters believe that the proposed revisions include complex legal
questions that combine facts and law, and that the proposed revisions are
confusing and make it impossible for pro se applicants to have their cases
heard.

Nature of
Comments

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Public Comments
Departments’ Responses
commenter believes that the proposed revisions are clearly meant to
intimidate and discourage asylum seekers and further obscure the
immigration system for applicants, which is a shameful abdication of the
U.S. government’s obligations under international law.
The commenter believes that the proposed revisions pose specific
challenges for detained applicants. The commenter states that the proposed
revisions require more time and details from applicants, which will make the
application process even more difficult for detained applicants. The
commenter believes that the proposed revisions will also force applicants to
provide more detailed information about their claims, possibly before they
have had the opportunity to consult with an attorney, which may lead to
some applicants providing irrelevant information that weakens their claim.
The commenter claims that even applicants who manage to secure counsel
are often only able to meet with their attorneys once or twice before their
hearings due to unreliable phone access and limited space for attorney
meetings at detention centers.

asylum officers and immigration judges
are adequately trained to distinguish
relevant information from irrelevant
information and consider credibility and
the weight of any evidence presented.
The Departments consider the comment
related to the rejection criteria for the Form
I-589 to fall outside of the scope of this
information collection action, and
therefore, decline to respond to the
comment.
As explained below, in response to the
commenters’ concerns, the Departments
have revised or abandoned some of the
proposed questions in the interest of
simplicity and clarity.

Membership in a
Particular Social
Group

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
The commenters believe that asking applicants seeking protection on
Response: As proposed, the Departments
account of membership in a particular social group (PSG) to identify PSGs
are including a prompt for applicants to
on the form presents a hurdle for pro se applicants and violates applicants’
provide information about their
due process rights.
membership in a particular social group, if
applicable. The Departments revised the
The commenters believe that adding a requirement to identify the particular originally proposed prompt in response to
the concerns raised by the commenters.
social group on the form imposes high time and cost burden on applicants
See Form I-589, Part B. Information about
and will present a huge hurdle for pro se applicants, who are already at a
disadvantage. The commenter believes that properly identifying a particular Your Application, Question 1.
social group that meets the requirements of the law requires expertise in
U.S. asylum law that is far beyond the ability of most pro se applicants with The additional prompt in the form and
meritorious claims. The commenter claims that the increased burden stems
explanation in the instructions related to
from the proposed rule’s attempt to narrow the definition of “particular
membership in particular social groups is
social group,” which undermines the 1951 Convention and Refugee Act by
related to the regulatory text proposed in
providing a non-exhaustive list of nine specific bases that will no longer
the NPRM and included in the final rule in
meet the definition of a particular social group. The commenter believes
8 CFR 208.1(c). See Instructions for Form
that the new form would force asylum seekers to articulate their particular
I-589, Part 1. Filing Instructions, II. Basis
social group(s) on the form, and even those applicants who rely on
of Eligibility, A. Asylum. The form gives
ineffective counsel would be unfairly precluded from later asserting a
applicants ample opportunity to offer
legitimate basis for asylum protection, in violation of the Fifth Amendment, information related to their membership in
contrary to long-established precedent. The commenter claims that
a particular social group, if applicable.
demanding that asylum seekers articulate the particular social group on the
Adjudicators are experienced with
form facilitates the agency’s violation of applicants’ due process rights.
addressing the substance rather than the
form of a claim, and aliens will have an
The commenter is concerned about asylum seekers having to articulate their opportunity to correct articulation
specific particular social group in the proposed form because legal analysis
deficiencies before an immigration judge
surrounding particular social groups is in constant flux and what may be a
renders a decision. See Procedures for
widely accepted particular social group at the time an asylum seeker files
Asylum and Withholding of Removal;
for asylum might no longer be considered viable in the months or years it
Credible Fear and Reasonable Fear Review
takes for the applicant to be scheduled for an individual hearing. The
Final Rule, 4.1 (Membership in a
commenter urges the agencies to remove the prompt.
Particular Social Group).
The commenter claims that for pro se individuals, again many of whom will
be detained, to have to articulate the precise particular social group
formulation or else waive the ability to raise that group upon appeal, is

The Departments disagree that the prompt
requires expertise in asylum law, is a
violation of substantive or procedural due
12

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
unreasonable and undermines U.S. obligations to protect those fleeing
process rights, or otherwise incongruous
persecution and threats to their life or freedom under the regulations
with the 1951 Convention and Refugee
implementing Article 33 of the Refugee Convention and the 1967 Refugee
Act. The regulatory intent is to allow for
Protocol. The commenter believes that expecting asylum applicants,
an alien to either articulate or provide a
especially those appearing pro se, to delineate and articulate the particular
basis for determining the contours of a
social group in their initial asylum filings is simply unrealistic and
particular social group. The Departments
undermines due process and U.S. obligations to provide a meaningful
have long held that applicants both with or
process of protect refugees.
without counsel must provide evidence of
eligibility for protection including, if
applicable, their membership in a
The commenter noted that the new box could easily be used to confound
particular social group. In M-E-V-G-, 26 I.
applicants during a hearing if they identified a particular social group that,
& N. Dec. 227, and W-G-R-, 26 I. & N.
upon further research and testimony is not the actual group that forms the
Dec. 208 (BIA 2014), the Board of
legal basis for a claim. The commenter believes that at a minimum, the
prompt should be revised to ensure that the applicant provides a description Immigration Appeals clarified the term’s
to the best of his or her ability and an acknowledgment that this information scope, ruling that a “particular social
may be supplemented at the time of hearing. The commenter maintains that group” must be: (1) composed of members
if such guidance is not provided, an immigration judge would then have the who share a common immutable
characteristic; (2) defined with
opportunity to pretermit the claim based on the applicant’s inability to
particularity; and (3) socially distinct
adequately state a legally cognizable social group. The commenter claims
within the society in question. M-E-V-G-,
that survivors of abuses such as forced marriage, “honor” crimes, and
26 I. & N. Dec. at 237. The Board
human trafficking most often apply for asylum on account of their
membership in a particular social group, and that they will undoubtedly and emphasized that social distinction and
particularity were “fact-based” and
arbitrarily suffer immensely as a result.
depended on evidence of how the group
was perceived in the society in question.
In the commenter’s experience, few if any child applicants are equipped to
Id. at 242. The Departments’ proposed
articulate a particular social group in a manner that Question 1 calls for,
prompt aims to document claims on the
especially during the early stages of their case. The commenter believes
record at the very outset of an alien’s
that, for most child applicants, even coming to understand the concept of a
desire to apply for protection. Rather than
particular social group (and the factors that contribute to whether a
delimit due process, this prompt affords
particular social group is legally cognizable) requires significant time and
more process to allow for a fulsome review
explanation in developmentally appropriate terms, often over the course of
of the alien’s claim for asylum or for
numerous meetings.
withholding of removal.

Non-Government
Actors and the
Role of the
Government

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
For additional responses to the
commenter’s claim that expecting an alien
to articulate a particular social group
undermines U.S. obligations or is in
violation of U.S. law, see Procedures for
Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review
Final Rule, 4.1 (Membership in a
Particular Social Group).
The commenters believe that the proposed revisions related to nonResponse: In response to commenters’
government actors increase the burden on victims of persecution by nonconcerns, the Departments abandoned
government actors.
certain proposed revisions in the form and
accompanying instructions related to harm
The commenter believes that the proposed revision requires asylum seekers and torture by non-government actors and
the role of the government. See Form Iseeking protection based on persecution committed by non-state
organizations to provide significant details about the role of the government 589, Part B., Information about Your
Application, Questions 1.A. through D.;
in the persecution. The commenter claims that the form gives the
Instructions for Form I-589, Part II. Basis
impression that persecution can only occur if the government is involved,
of Eligibility, Part B.
and the questions ignore the reality that the political landscape of the
modern world has drastically changed since the 1951 Convention and 1967
Protocol. The commenter believes that placing an additional time burden
on applicants facing persecution by non-state organization disfavors
applicants with claims based on gang, criminal, and terrorist organizations
that governments are unable or unwilling to control. The commenter claims
that the proposed revisions hinder the Departments’ ability to carry out
statutory mandates and address the needs of modern refugees, respond to
modern conflicts around the world, and provide protection to victims of
these non-state organizations.
The commenter opposes the proposed questions for applicants seeking
protection under the Convention Against Torture regulations to explain the
exact role of government officials and believes these questions will be
impossible for most pro se applicants to answer. The commenter believes
that an individual who has fled torture will generally not know whether or
not a government official was acting in their “official capacity” and even if
14

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
the applicant may ultimately be able to retain an expert witness and/or do
further investigation about conditions in their country to support their claim
before an individual hearing, it is absurd to require this level of detail at the
filing stage of the process.
Furthermore, the commenters believe that the proposed questions asking
about torture by non-government actors are confusing at best and
misleading at worst. Moreover, the commenters claim that the question
would require a CAT protection applicant to guess how a government
official would respond if they were made aware of the torture. The
commenters believe that applicants for protection from torture should not be
required to guess about what their government might do.

Deferral of
Removal under
CAT

The commenter states that in circumstances involving threats or harm to
children, adult family members or caregivers are usually involved in the
decision of whether to report incidents to government officials, and/or carry
out the reporting. The commenter notes that child applicants therefore
rarely have direct knowledge of the full circumstances surrounding police
reports without seeking additional information from others involved,
usually with the assistance of counsel.
The commenter believes that the form should mention deferral of removal
under the CAT regulations.
The commenter states that the proposed form specifically states on page 1
and page 5 that it is to be used for both statutory withholding of removal
and withholding under the CAT regulations. The commenter believes that
neither the form nor the accompanying instructions clarify that this form is
also the one that applicants for deferral of removal under the CAT
regulations must use to apply for protection. The commenter believes that it
is confusing to specify one use of the form under the CAT regulations and
to leave out the other use, and that the form and instructions should be
rewritten to clarify that the Form I-589 is the correct form to seek deferral
of removal.

Response: The Departments do not agree
that deferral of removal under the CAT
regulations needs to be mentioned on the
Form I-589. The accompanying
instructions provide an adequate overview
of the statutory and regulatory framework
for withholding of removal and deferral of
removal under the CAT regulations. See
Instructions for Form I-589, Part 1. Filing
Instructions, II. Basis of Eligibility, B.-D.

Similarly Situated

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
Response: In response to the commenters’
The commenters believe that it is unduly burdensome and unrealistic to
require asylum applicants to provide information about similarly situated concerns, the Departments abandoned the
proposed revisions to include a reference
persons.
to “similarly situated persons” in Part B.
The commenter believes that one example of a significant increase in the Information about Your Application,
Questions 1.A. and 1.C. of Form I-589.
information collection burden with no stated purpose in the proposed

rule is the question about the past harm and torture experiences that
includes a reference to “other similarly situated persons”. The
commenter notes that proposed question 1.A. in Part B., Information
about Your Application, adds the language “other similarly situated
persons” and deletes the modifier “close” when referring to friends or
colleagues. The commenter claims that both changes significantly
expand the universe of information requested, presupposing that the
applicant has knowledge of harm that may have occurred to anyone in
his or her orbit and extending to people who may be completely
unknown to the applicant. The commenter believes that these revisions
should be deleted as overly burdensome and outside the applicant’s
scope of knowledge.

Nexus

The commenter notes that the term “similarly situated” is not defined. The
commenter believes that applicants who do have even partial knowledge of
harm, threats, or torture to the individuals in this list may fear for victims’
safety upon disclosing it, especially in writing. The commenter claims that
applicants may hesitate to disclose the information requested for fear of
breaking victims’ trust if they provided sensitive details in confidence. The
commenter believes that this question unfairly sets applicants up for
negative credibility determinations through no fault of their own and that a
similar question could be asked during the asylum interview in a traumainformed manner. Thus, the commenter believes that the question should be
eliminated.
The commenters believe that the proposed revisions require applicants to
make sophisticated arguments regarding nexus requirements and should be
removed.

Response: The Departments disagree that
the additional prompt in Form I-589, Part
B, Information About Your Application,
related to why the harm, mistreatment, or
16

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
threats occurred or would occur requires
The commenter believes that Question 1.A.4. of Part B, which asks
sophisticated legal analysis or lays a trap
asylum applicants to explain why they believe the harm they suffered is
for asylum applicants. See Form I-589,
on account of a protected ground requires the applicant to engage in a
Part
B, Information About Your
sophisticated legal analysis which increases the time burden and will
Application,
Questions 1.A.4. and 1.B.3.
undoubtedly lead to user confusion. The commenter notes that case law
has provided ample interpretation of the nexus requirement, and that an
Questions 1.A.4. and 1.B.3. invite
applicant need not and cannot prove the exact motivation of the
persecutor. The commenter claims that the proposed instructions simply applicants to explain why they believe they
were harmed, mistreated, or threatened, or
reiterate the regulatory text, without any acknowledgement of existing
case law or the fact that asylum rules are modified constantly by agency could be harmed or mistreated, and now
include additional guidance to prompt
and judicial interpretation. The commenter is concerned that pro se
applicants to explain why the applicant
applicants will not understand the relationship between the instructions
believes the harm is on account of a
and the cited proposed regulations.
protected ground. The form already asks
The commenter believes it would be impossible for many asylum
applicants, especially those who are unrepresented to fully comprehend
what they must demonstrate to prove that harm is “on account of” their
protected characteristic at the outset of their case when completing Form I589. The commenter believes that the proposed rules in 8 CFR § 208.1(f)
and 8 CFR § 1208.1(f) subject all asylum seekers to a laundry list of
measures designed to deny asylum to most applicants on nexus grounds,
while failing to require adjudicators to engage in a mixed motive analysis.
The commenter believes that the nexus question on the proposed form
therefore lays a trap for asylum seekers, and that if they do not explain why
they believe they were harmed, the case could face pretermission. The
commenter also believes that if an alien states a reason from the laundry list
of automatic denials, such as anything related to “personal animus” or
“gender”, the adjudicator may deny the case without having to determine
whether this was only one reason among others. The commenter strongly
opposes the inclusion of this question, which will lead to many applicants’
claims being unfairly denied.
In the commenter’s experience, child applicants are frequently unable to
understand or fully articulate the reason(s) they were harmed. The

applicants to check any of the protected
grounds boxes in Part B, Information about
Your Application, and thus, the additional
guidance in Questions 1.A.4 and 1.B.3 are
meant to complement this line of inquiry
and offers applicants the opportunity to
provide relevant information to support the
claim. Applicants are not expected to
engage in any sort of legal analysis, but
rather, they are expected to provide
information related why they believe they
have been or will be harmed.
With regard to child applicants, the
Departments recognize that children may
face challenges when completing the Form
I-589. Information regarding an
applicant’s ability to supplement the
application is provided in Part I. Filing
Instructions, Section V. Obtaining and
Completing the Form. Also, the
17

Previous
Applications and
Travel History

The commenters expressed concern that the proposed questions about
previous applications for refugee status, asylum, and withholding of
removal require applicants to provide information that may not be available
to them. The commenters are also concerned that the proposed questions
about travel history will force asylum applicants to provide information that
is not relevant and has no legal bearing on their cases.
The commenters noted that the questions regarding past immigration history
currently contained in Part C, Additional Information about Your
Application, Questions 1 and 2, have been significantly expanded in the
form to encompass Questions 1 through 4, which ask for extensive
information on the activities of the applicant and family members regarding
prior applications for asylum, travel through other countries, and
immigration status in those countries. The commenters believe that, while
the current form frames these questions so that an applicant may provide
narrative answers, the proposed revisions break many of the initial

Response: The Departments believe that
the additional questions in Part. C,
Additional Information About Your
Application, of the Form I-589 related to
previous applications and travel history are
appropriate and relevant to the
adjudication. The additional questions and
prompts in Part C, Additional Information
about Your Application, Questions 1
through 4, help provide adjudicators with
relevant information, including prior
applications for protection pursued by the
applicant or certain family members, prior
denials, countries through which the
applicant and certain family members
traveled, and countries in which the
applicant or certain family members
18

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
questions down into yes or no answers for which the applicant may not have resided. These matters come into play
sufficient knowledge. The commenter notes that there is no opportunity to
when adjudicators assess bars to applying
answer “I do not know” or to provide additional explanation. The
for asylum and eligibility for asylum, as
commenter believes that much of the information requested is likely outside well as discretion.
the scope of the applicant’s knowledge and may require legal expertise.
The Departments disagree that the
questions do not allow for applicants,
In the commenter’s experience, unaccompanied and separated children
including children, to provide additional
frequently do not have sufficient information about the whereabouts and
explanation or require legal expertise. As
activities of their family members to accurately answer these questions.
The commenter believes that, at a minimum, these questions must include a indicated in the Form I-589, Part C.
Additional Information about Your
response option where the applicant does not know the answer.
Application, applicants may use Form I589, Supplement B, or attach additional
The commenter is concerned that the proposed I-589 form requires
sheets of paper as needed to complete the
applicants to include information that is not legally relevant about siblings’
responses to the questions contained in
applications for status in the United States or potential for application for
Part C. Thus, the Departments retained the
status abroad. The commenter believes that, given the sensitive nature of
additional questions.
information disclosed in asylum applications, it may not be appropriate for
an asylum seeker to have to discuss their application with a sibling.
Nevertheless, in response to commenters’
The commenter believes that the scope of Question 4 in Part C, which
concerns, the Departments revised the
requests the travel history and information about applications for lawful
proposed questions related to travel history
status pursued in other countries for the applicant’s spouse, children, and
and previous applications. See Form Iother family members is wide and the purpose is unclear. The commenter
589, Part C., Additional Information about
believes that it is possible that asylum seekers will either provide more or
less information than the Departments need and could take many hours and Your Application, Questions 1 through 4.
expend substantial money trying to include comprehensive responses to
questions which likely have no legal bearing on the case.
The commenter believes that the new form would also force asylum
applicants to evaluate the immigration law of any countries they or their
family members previously visited. The commenter claims that the scope
of Question 4.B. in Part C could include trips that took place years prior to
any persecution and even trips that family members made before the asylum
applicant was born. Furthermore, the commenter claims that answering this
question requires asylum applicants and their lawyers to research the
historical immigration laws of third countries in order to determine whether
19

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
the asylum seekers or their family members could have applied for any
lawful status. The commenter notes that this research will not only take a
tremendous amount of time, but it is also likely to lead to user and
adjudicator confusion since it requests information that is not relevant to the
claim.
Discretionary
Factors

The commenters believe that the proposed revisions in Form I-589, Part C.,
Additional Information about Your Application, Questions 9 and 10, related
to the adverse discretionary factors require complex legal analysis and are
biased against the applicant.
The commenter believes that the proposed revision prioritizes gathering
transit-related information, uncovering possible technical errors, and
exploiting administrative deficiencies over the legitimacy of asylum claims.
The commenters claim that these proposed discretionary factors strip
decision makers of meaningful discretionary authority and require blanket
denials.
The commenters believe that the questions regarding discretionary factors
make clear how dramatically the proposed rule would change the asylum
system as it has existed for decades in the United States. The commenter
believes that each discretionary question requires complex legal analysis, it
would be impossible for most pro se applicants to fully comprehend and
complete these questions, and even for experienced attorneys, these
additional questions will add a substantial burden in time and cost in
completing them.
The commenter believes that the result could be that the applicant leaves the
question blank, and has the I-589 form rejected, or the applicant could guess
at the answer and potentially face an adverse credibility finding if they
guessed incorrectly. The commenter claims that the structure of the
questions and the accompanying boxes that allow an applicant to provide
information about the exceptions are confusing and biased against the
applicant. The commenter is concerned that, in many circumstances
throughout Questions 9 and 10, “I don’t know” is a reasonable answer,
whereas a binary option may lead the applicant to fail to complete the

Response: The Departments disagree that
the questions related to discretionary
factors require complex legal analysis or
are biased against the applicant. The
questions are designed to elicit information
related to the adverse discretionary factors
in 8 C.F.R. sections 208.13(d) and
1208.13(d) and corresponding exceptions,
and give applicants the opportunity to
provide the relevant information. As
indicated in the Form I-589, Part C.,
Additional Information about Your
Application, applicants may use Form I589, Supplement B, or attach additional
sheets of paper as needed to complete the
responses to the questions contained in
Part C.
Nevertheless, in response to the
commenters’ concerns, the Departments
revised certain questions and explanations
in the form and instructions. See Form I589, Part C., Additional Information about
Your Application, Questions 18 and 19;
Instructions for the Form I-589, Section V.
Obtaining and Completing the Form, Part
C. Additional Information about Your
Application.
20

Frivolous Filings

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
question, or to answer “incorrectly,” both of which could be used to deny
For responses to comments related to the
the application, question the applicant’s credibility, or even lead to a
discretionary factors themselves, see
determination of a frivolous filing.
Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable
Fear Review Final Rule, 4.7 (Factors for
The commenter also notes that neither the proposed instructions nor the
Consideration in Discretionary
proposed form provides the applicant with guidance about the nature of
positive factors. The commenter believes that the applicant will likely need Determinations).
to submit significant evidence to address this question, and yet no guidance
is offered regarding these new measures. The commenter claims that this is
particularly troublesome with respect to claims filed by unaccompanied
children, for whom the TVPRA has explicitly required that the asylum
process be adapted to their particularly needs and vulnerabilities.
The commenters believe that the proposed revisions related to frivolous
Response: The Departments believe that
filings do not sufficiently provide applicants notice of the revised definition the Form I-589 and accompanying
of the term, frivolous, or the consequences of filing frivolous applications.
instructions provide applicants with
sufficient notice regarding frivolous filings
and related consequences. As such, the
The commenter believes that while the new I-589 references the
consequences of filing a frivolous application, neither the new form nor the Departments retained the proposed
references to the rules related to frivolous
new instructions explain the new and expansive definition of frivolous
under the proposed rule. The commenter notes that asylum seekers, many of filings and associated warnings. See Form
I-589, Part D. Your Signature; Instructions
whom are unrepresented, will first have to read the new proposed rule to
for Form I-589, Part 1. Filing Instructions,
understand how frivolous is defined, and will then need to understand
V. Obtaining and Completing the Form,
whether the reason they fear returning to their country meets this new
Part D. Your Signature.
definition.
The commenter strongly opposes the additional references to filing a
frivolous application without any explanation of how the proposed rule
would expand this definition. The commenter believes that, while the
proposed form and instructions include information about the proposed
change that would allow asylum officers to find an application frivolous,
neither the form nor the instructions provides any information about how
the proposed rule would significantly expand the definition of frivolous.
The commenter believes that the warning is meaningless if the asylum
seeker is not apprised of the fact that if an adjudicator determines that the

For additional responses to commenters’
concerns about the definition of frivolous,
see Procedures for Asylum and
Withholding of Removal; Credible Fear
and Reasonable Fear Review Final Rule,
3.1 (Frivolous Applications).

Confidentiality

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
application lacks merit, the asylum seeker may be forever barred from any
immigration benefit. The commenter is concerned that the proposed form
and instructions would implement a radically expanded definition without
giving asylum seekers fair notice of the change.
The commenters believe that the proposed revisions related to
Response: The Departments believe that
confidentiality will discourage asylum applicants from providing
the information provided in the
information.
Instructions for Form I-589 regarding
confidentiality is appropriate and properly
mirrors the regulation. See 8 CFR 208.6
The commenter believes that the proposed instruction related to
and 1208.6. The Departments retained the
confidentiality fails to provide sufficient clarity to an asylum applicant, in
information with a minor change (added
particular, one fleeing gender-based violence, about the universe of entities
“state” to the clause about the mandatory
or persons to whom the information may be shared. The commenter
reporting requirement) to mirror the
believes that, without clearer and more definite assurances of
regulatory text in 8 CFR 208.6 and 8 CFR
confidentiality, survivors and other asylum seekers likely be discouraged
1208.6. See Instructions for Form I-589,
from fully disclosing the harms they have experienced, potentially
Part 1. Filing Instructions, III.
jeopardizing their asylum claims, to protect themselves. The commenter is
Confidentiality.
concerned that where applicants have abusers or traffickers who have
connections to law enforcement, the sharing of information may also place
survivors at risk. The commenter believes that there must be clearer limits
on disclosure, including for law enforcement purposes with specific,
proscribed information sharing in exceptional circumstances.

The commenter believes that neither the proposed form nor the
corresponding instructions provide further explanation for what the
categories enumerated in the proposed regulations mean; any specific or
adequate reason that such broad and seemingly public disclosure is
necessary; or any safeguards to mitigate the harm if an exception is utilized,
such as redactions or protective orders. Furthermore, the commenter
expressed concern that the proposed confidentiality regulations and the
confidentiality warning in the instructions are likely to have a chilling effect
on the full disclosure by the applicant of sensitive and traumatic
circumstances that serve as the basis for their asylum claim.
Recommendations The commenters believe that the proposed revised instructions for the Form
for Form I-589
I-589 are confusing and create the expectation that applicants need to
Instructions
conduct legal research. The commenters believe that the proposed revisions

Response: The Departments believe that
the revised instructions for the Form I-589
are sufficiently clear and provide the
22

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
to the instructions fail to provide guidance to applicants on how to complete necessary background information and
the Form I-589, and will instead, further confuse applicants.
guidance to applicants on how to complete
the form.
The commenter recommended that the instructions should not solely refer to
the “CAT regulations”, but rather, specifically to the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.

Response: The Departments believe that
the recommended change is outside of the
scope of this information collection action;
and therefore, decline to make the
recommended change. Both the prior and
new versions of the instructions for the
Form I-589 refer to the Convention
Against Torture. See Instructions for Form
I-589, Part 1. Filing Your Application, II.
Basis of Eligibility, D. Legal Sources and
Guidance Related to Eligibility.

Response: The Departments believe that
the proposed revisions in the instructions
provide the appropriate additional
information and properly align with the
regulations and case law. See Instructions
for Form I-589, Part 1. Filing Your
Application, II. Basis of Eligibility. The
Departments decline to make the
recommended change.
The commenter notes that on Page 2, Part 1, Section I (Who May Apply and Response: The Departments believe that
Filing Deadlines), the proposed instructions state, “You must submit certain the recommended change is outside of the
documents for your spouse and each child included as required by these
scope of this information collection action;
instructions. Children 21 years of age or older and married children must
and therefore, decline to make the
file separate applications.” The commenter claims that this incorrectly
recommended change. Both the prior and
implies by omission that children who are under 21 and unmarried do not
new versions of the instructions include
have the right to file applications separately from a parent on whom they are this instruction. See Instructions for Form
dependent.
I-589, Part 1. Filing Instructions, I. Who
May Apply and Filing Deadlines.

The commenter believes that the definition of torture included in the
proposed revisions to the instructions is insufficient and should include
examples of “public official”, “acquiescence”, “color of law”, “official
capacity.” The commenter notes that the instructions refer to the proposed
regulations regarding the definition of particular social group, political
opinion, persecution, and nexus; however, the proposed revisions do not
refer to the fact that federal Circuit Courts often define the contours of these
terms, and the law may differ among circuits.

The commenter is concerned that in Part 1, Section II.B., the proposed
instructions introduce, but cannot effectively illuminate numerous legal
concepts, including acquiescence, rogue officials, and breach of a legal
responsibility. The commenter believes that, in effect, the applicant is
prompted to pre-judge his or her own claim for relief, instead of adducing
information, in writing and at a hearing, that enables the adjudicator to
determine eligibility. Moreover, the commenter is concerned that, for
certain cases, the proposed instructions require the applicant to “explain
whether and how” an official or person acting in an official capacity “had
awareness of the activity and breached his or her legal responsibility to
intervene to prevent such activity.” The commenter believes that, to the
extent that this instruction calls for an assessment of how a third person
acquired awareness, compliance with this instruction is not only infeasible,

Response: The Departments disagree that
the instructions prompt applicants to prejudge their own claims for relief. The
Departments believe that the revised
instructions provide the appropriate
additional information and properly align
with the regulations and case law. See
Instructions for Form I-589, Part 1. Filing
Your Application, II. Basis of Eligibility.
Notwithstanding, as described above, the
Departments revised the form and
accompanying instructions in response to
24

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
but an attempt to speculate on the applicant’s part that may expose the
concerns raised by several commenters
asylum applicant to the more severe penalties envisioned under the
related to questions and instructions
expansion of the definition of frivolous filings proffered in the proposed
focused on harm and torture by nonrule.
government actors and the role of the
government.

Form Versions

The commenters are concerned that the form revision is based on the form
version approved on September 10, 2019, rather than the most recent
version changed by the Asylum Application, Interview, and Employment
Authorization for Applicants Final Rule (Asylum EAD Rule), 85 FR 38532,
that became effective on August 25, 2020.
The commenter believes that the public is unable to evaluate an accurate
draft of the final Form I-589 and instructions, and the inability to accurately
comment is a consequence of the agencies’ patchwork attempts to overhaul
the nation’s asylum system through piecemeal regulations proposed in rapid
succession during a global pandemic. The commenter believes that the
sweeping nature of these revisions means that the commenter is unable to
provide comprehensive comments to every revision or to even fully
understand how they interact with one another.

Response: The proposed revisions to the
Form I-589 and accompanying instructions
were provided on the form edition
approved by the Office of Management
and Budget (OMB) on September 10,
2019, which was the OMB approved form
at the time of the publication of the NPRM
and accompanying information collection
notice in the Federal Register.

The revisions to the Form I-589 and
instructions associated with the Asylum
EAD Final rule had not been approved by
OMB at the time of the publication of the
information collection notice in the Federal
The commenter is concerned that there are conflicting new versions of the I- Register.
589 and does not understand how comments on the current proposed
Given that the Form I-589 revisions
version of the I-589 will affect the final form when there is apparently a
associated with the
more recent version than the one on which the information collection is
Asylum EAD Final Rule have been
based. The commenter urges the agencies to rescind this information
collection and reissue it at a later date using a version of the I-589 form that approved by OMB and the form is
currently available to the public for use,
integrates the newest version of the existing I-589 form.
the revised Form I-589 and instructions
now include the Asylum EAD Final Rulerelated revisions.

Comment Period

The commenter believes that even though the information collection
allotted the required 60 days for comment submission, the first 30 days
were effectively nullified.

Response: The Departments appreciate
the comment but note that the form
revisions are intended to reflect only the
changes proposed by the rule. The
Departments believe 60 days provides a
The commenter submitted a 101-page comment on that proposed rule and
still did not have time to adequately address every concern that the proposed meaningful period for comment on the
forms, especially because the rule itself
rule raised. Since the commenter had to divert substantial resources to that
had a 30-day comment period. Further, as
comment, it was not possible to focus on the information collection during
the commenter notes, the Departments are
that time period. The commenter notes that with so many complex, farreaching rulemakings on the same topic at the same time, the public did not in compliance with the Paperwork
Reduction Act (PRA) and its relevant
really have a full 60 days to respond to the substantial changes in the
regulations. See, e.g., 5 CFR 1320.11.
proposed I-589 and accompanying instructions. For this reason, the
commenter asks that the information collection be rescinded and reissued
with a new 60-day comment period.

Federal Vacancies
Reform Act

The commenter believes that the information collection instrument is void
as a threshold matter because it was issued in violation of the Federal
Vacancies Reform Act (FVRA).
The commenter believes that the form was signed by Chad Mizelle in his
purported capacity as “Senior Official Performing the Duties of the General
Counsel, U.S. Department of Homeland Security.” The commenter
believes that because the DHS General Counsel does not have the authority
to sign proposed or final rules under the Homeland Security Act or existing
DHS delegations, the Information Collection also includes a paragraph in
which purported Acting Secretary Chad Wolf “delegate[s] the authority” to

Response: The NPRM and the final rule,
including associated form revisions, were
signed by Chad Mizelle, the Senior
Official Performing the Duties of the
General Counsel for DHS. As indicated in
the proposed rule at section V. Regulatory
Requirements, H. Signature, Chad Wolf,
the Acting Secretary of Homeland
Security, reviewed and approved the
proposed rule and delegated the signature
26

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
sign the document to Mr. Mizelle. However, the commenter believes that
authority to Mr. Mizelle. See 85 FR
both Mr. Wolf and Mr. Mizelle are serving in violation of the FVRA, 5
36290.
U.S.C. §§ 3345 & 3346. As a result, the commenter believes that both Mr.
Wolf’s delegation and Mr. Mizelle’s signature are without force and effect
Secretary Wolf is validly acting as
under the FVRA, 5 U.S.C. § 3348(d)(1), and contrary to law under the
Secretary of Homeland Security. On April
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and the form must be
9, 2019, then-Secretary Nielsen, who was
withdrawn.
Senate confirmed, used the authority
provided by 6 U.S.C. 113(g)(2) to establish
the order of succession for the Secretary of
Homeland Security. This change to the
order of succession applied to any
vacancy. Exercising the authority to
establish an order of succession for the
Department pursuant to 6 U.S.C.
113(g)(2), superseded the FVRA and the
order of succession found in E.O. 13753.
As a result of this change and pursuant to 6
U.S.C. 113(g)(2), Mr. McAleenan, who
was Senate confirmed as the
Commissioner of CBP, was the next
successor and served as Acting Secretary
without time limitation. Acting Secretary
McAleenan subsequently amended the
Secretary’s order of succession pursuant to
6 U.S.C. 113(g)(2), placing the Under
Secretary for Strategy, Policy, and Plans
position third in the order of succession
below the positions of the Deputy
Secretary and Under Secretary for
Management. Because these positions
were vacant when Mr. McAleenan
resigned, Mr. Wolf, as the Senate
confirmed Under Secretary for Strategy,
Policy, and Plans, was the next successor
and began serving as the Acting Secretary.
27

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
The Secretary is authorized to delegate his
or her authority to any officer or employee
of the agency and to designate other
officers of the Department to serve as
Acting Secretary. See INA 103 (8 U.S.C.
1103) and 6 U.S.C. 113(g)(2). The HSA
further provides that every officer of the
Department “shall perform the functions
specified by law for the official’s office or
prescribed by the Secretary.” 6 U.S.C.
113(f). Thus, the designation of the
signature authority from Acting Secretary
Wolf to Mr. Mizelle is validly within the
Acting Secretary’s authority.
Paperwork
Reduction Act

The commenter believes that the proposed Information Collection is
contrary to the intent of the PRA.
The commenter believes that the burden shifting in the Collection and
outline above run contrary to the purpose of the Paperwork Reduction Act
(“PRA”) precipitating the Notice. The commenter believes that the
information collection clearly violates the explicit purpose of the PRA. The
commenter claims that the additional information that the information
collection attempts to collect is not factual data, such as biographical data or
employment history, that may be, indeed, more efficiently collected via a
paper application than an oral, in-person interview. Rather, the commenter
believes that the collection requires individuals, through unduly
burdensome paperwork, to engage and articulate complex legal analysis and
to anticipate and address, through increased paperwork, the legal arguments
that an asylum officer, trial attorney, or immigration judge would pose.
The commenter believes that while the form provides limited space to
provide the collection’s requested information, the additional questions
cannot be properly answered in that limited space. The commenter claims

Response: The Departments disagree that
the proposed information collection is
contrary to the purposes of the PRA. As
articulated at 44 U.S.C. 3501, the purposes
of the PRA include to: “minimize the
paperwork burden . . . ensure the greatest
possible public benefit from and maximize
the utility of information created,
collected, maintained, used, shared and
disseminated by or for the Federal
Government … improve the quality and
use of Federal information to strengthen
decisionmaking, accountability, and
openness in Government and society;
minimize the cost to the Federal
Government of the creation, collection,
maintenance, use, dissemination, and
disposition of information;”. The
Departments believe that this information
28

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
that for an applicant to fully respond to the information collection request,
collection will aid the Departments in
the applicant must include mountains of supplemental information via
implementing the changes proposed in the
paperwork that again is simply contrary to the intent of the PRA.
rule in the most transparent and efficient
manner.

Formatting,
Redundancy, and
Error

The commenters believe that the proposed revisions include formatting
changes and redundant questions that make the Form I-589 less userfriendly and may lead applicants to inadvertently commit mistakes.
The commenter believes that the proposed revisions are poorly organized.
They will inevitably lead to consistent user error, straining the Asylum
Office and the immigration courts. The commenter notes that the proposed
revisions split discrete sections across multiple pages. The commenter
believes that Part A.II., which requires information about the applicant’s
children, is confusing, and there is discontinuity that is bound to confuse
some applicants. The commenter claims that it will likely lead to many
applicants failing to mark “yes,” even though they do, in fact, want to
include their child in the application. The commenter strongly recommends
that the Departments reconfigure the form so that each discrete section
about each child is contained on just one page.
The commenter believes that Part B., Information about Your Application,
Question 1.A., which breaks down the question of what happened to an
individual into distinct parts, may make it easier for some applicants to
identify the important elements in their claim and is therefore, more in

In response to specific comments received,
the Departments are amending the form
and instruction to make them more
applicant friendly. Additionally, as the
Departments anticipated there may be an
additional impact to applicants, they
accordingly modified the PRA burden
statement to reflect a possible 6 hour
increase in reporting burden per response.
Response: The Departments believe that
the revised form and instructions are
comprehensible, organized, and properly
formatted. The form and instructions
provide the relevant information and
properly align with the regulations and
case law. Moreover, the additional
questions in the form give applicants the
opportunity to provide information that is
pertinent to different aspects of their
claims, including bars to applying for
asylum, bars to eligibility for asylum, and
discretionary factors and related
exceptions.
The Departments corrected the
grammatical error that appeared in the
proposed Form I-589, Part C. Additional
Information about Your Application,
Question 4.B.
29

Form I-589 Public Comments and Response Matrix
Department of Justice and Department of Homeland Security
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
OMB Control Number, 1615-0067
keeping with creating an accessible form. The commenter notes that for
other applicants, the breakdown may simply create more opportunities for
an applicant to inadvertently contradict earlier statements. The commenter
believes that, while a more precise set of questions may be valuable
generally, in the context of the current revisions, these changes are likely to
contribute to additional obstacles for some applicants.
The commenter believes the proposed revisions are poorly labeled and
confusing. The commenter believes that another formatting flaw with the
proposed form is that creates new boxes to break down questions from the
previous form, including Part B, 1.A.1-4, 1.B.1-3, 1.C.1-4, 1.D.1-3, Part C.
Questions 3-4, 9.C., and 10.I. The commenter notes that some of these
boxes are labeled, while others are not. The commenter recommends that
the Departments assign either numerical or letter identifiers for each box.
The commenters believe that the proposed revisions contain many
redundant questions, including the second unlabeled box under Part C.,
Questions 3, 4.A, 4.B, 10.A., 10.C., and 10.H. The commenter believes that
these proposed revisions are incomprehensible and unnecessary, and the
Departments could more efficiently solicit this information by simply
asking, “Have you, your spouse, or children ever applied for or received,
any permanent lawful status?” and providing a box to allow the applicant to
explain.
The commenter believes that Part C. Question 4.B. is grammatically
incorrect and unfair, and it should read, “Have you, your spouse, your
child(ren) or other family members, such as your parents or siblings, ever
applied for, received, or been eligible to apply for, but did not, any lawful
status in any country other than the one from which you are now claiming
asylum?” However, the commenter notes that even with this grammatical
correction, the question is confusing and convoluted.

File Type	application/pdf
Subject	161
Author	Avendano, Manuel A
File Modified	2020-11-24
File Created	2020-11-24