The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State.  Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department.  The Immigration Judge would forward the application to the State Department, which could comment on the application.

The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole.  Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations).  I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.

I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).

Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.”  Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.

The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker.  It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful.  Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary.  She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker. 

In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system.  The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.