SEC. 107. Rules for determining asylum eligibility.
SEC. 107. Rules for determining asylum eligibility.
Section 208 of the Immigration and Nationality Act (
8 U.S.C. 1158) is amended by adding at the end the following:
“(f) Rules for determining asylum eligibility.—In making a determination under subsection (b)(1)(A) with respect to whether an alien is a refugee within the meaning of section 101(a)(42)(A), the following shall apply:
“(1) PARTICULAR SOCIAL GROUP.—The Secretary of Homeland Security or the Attorney General shall not determine that an alien is a member of a particular social group unless the alien articulates on the record, or provides a basis on the record for determining, the definition and boundaries of the alleged particular social group, establishes that the particular social group exists independently from the alleged persecution, and establishes that the alien’s claim of membership in a particular social group does not involve—
“(A) past or present criminal activity or association (including gang membership);
“(B) presence in a country with generalized violence or a high crime rate;
“(C) being the subject of a recruitment effort by criminal, terrorist, or persecutory groups;
“(D) the targeting of the applicant for criminal activity for financial gain based on perceptions of wealth or affluence;
“(E) interpersonal disputes of which governmental authorities in the relevant society or region were unaware or uninvolved;
“(F) private criminal acts of which governmental authorities in the relevant society or region were unaware or uninvolved;
“(G) past or present terrorist activity or association;
“(H) past or present persecutory activity or association; or
“(I) status as an alien returning from the United States.
“(2) POLITICAL OPINION.—The Secretary of Homeland Security or the Attorney General may not determine that an alien holds a political opinion with respect to which the alien is subject to persecution if the political opinion is constituted solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations and does not include expressive behavior in furtherance of a cause against such organizations related to efforts by the State to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the State or a unit thereof.
“(3) PERSECUTION.—The Secretary of Homeland Security or the Attorney General may not determine that an alien has been subject to persecution or has a well-founded fear of persecution based only on—
“(A) the existence of laws or government policies that are unenforced or infrequently enforced, unless there is credible evidence that such a law or policy has been or would be applied to the applicant personally; or
“(B) the conduct of rogue foreign government officials acting outside the scope of their official capacity.
“(4) DISCRETIONARY DETERMINATION.—
“(A) ADVERSE DISCRETIONARY FACTORS.—The Secretary of Homeland Security or the Attorney General may only grant asylum to an alien if the alien establishes that he or she warrants a favorable exercise of discretion. In making such a determination, the Attorney General or Secretary of Homeland Security shall consider, if applicable, an alien’s use of fraudulent documents to enter the United States, unless the alien arrived in the United States by air, sea, or land directly from the applicant’s home country without transiting through any other country.
“(B) FAVORABLE EXERCISE OF DISCRETION NOT PERMITTED.—Except as provided in subparagraph (C), the Attorney General or Secretary of Homeland Security shall not favorably exercise discretion under this section for any alien who—
“(i) has accrued more than one year of unlawful presence in the United States, as defined in sections 212(a)(9)(B)(ii) and (iii), prior to filing an application for asylum;
“(ii) at the time the asylum application is filed with the immigration court or is referred from the Department of Homeland Security, has—
“(I) failed to timely file (or timely file a request for an extension of time to file) any required Federal, State, or local income tax returns;
“(II) failed to satisfy any outstanding Federal, State, or local tax obligations; or
“(III) income that would result in tax liability under
section 1 of the Internal Revenue Code of 1986 and that was not reported to the Internal Revenue Service;
“(iii) has had two or more prior asylum applications denied for any reason;
“(iv) has withdrawn a prior asylum application with prejudice or been found to have abandoned a prior asylum application;
“(v) failed to attend an interview regarding his or her asylum application with the Department of Homeland Security, unless the alien shows by a preponderance of the evidence that—
“(I) exceptional circumstances prevented the alien from attending the interview; or
“(II) the interview notice was not mailed to the last address provided by the alien or the alien’s representative and neither the alien nor the alien’s representative received notice of the interview; or
“(vi) was subject to a final order of removal, deportation, or exclusion and did not file a motion to reopen to seek asylum based on changed country conditions within one year of the change in country conditions.
“(C) EXCEPTIONS.—If one or more of the adverse discretionary factors set forth in subparagraph (B) are present, the Attorney General or the Secretary, may, notwithstanding such subparagraph (B), favorably exercise discretion under section 208—
“(i) in extraordinary circumstances, such as those involving national security or foreign policy considerations; or
“(ii) if the alien, by clear and convincing evidence, demonstrates that the denial of the application for asylum would result in exceptional and extremely unusual hardship to the alien.
“(5) LIMITATION.—If the Secretary or the Attorney General determines that an alien fails to satisfy the requirement under paragraph (1), the alien may not be granted asylum based on membership in a particular social group, and may not appeal the determination of the Secretary or Attorney General, as applicable. A determination under this paragraph shall not serve as the basis for any motion to reopen or reconsider an application for asylum or withholding of removal for any reason, including a claim of ineffective assistance of counsel, unless the alien complies with the procedural requirements for such a motion and demonstrates that counsel’s failure to define, or provide a basis for defining, a formulation of a particular social group was both not a strategic choice and constituted egregious conduct.
“(6) STEREOTYPES.—Evidence offered in support of an application for asylum that promotes cultural stereotypes about a country, its inhabitants, or an alleged persecutor, including stereotypes based on race, religion, nationality, or gender, shall not be admissible in adjudicating that application, except that evidence that an alleged persecutor holds stereotypical views of the applicant shall be admissible.
“(7) DEFINITIONS.—In this section:
“(A) The term ‘membership in a particular social group’ means membership in a group that is—
“(i) composed of members who share a common immutable characteristic;
“(ii) defined with particularity; and
“(iii) socially distinct within the society in question.
“(B) The term ‘political opinion’ means an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state or a unit thereof.
“(C) The term ‘persecution’ means the infliction of a severe level of harm constituting an exigent threat by the government of a country or by persons or an organization that the government was unable or unwilling to control. Such term does not include—
“(i) generalized harm or violence that arises out of civil, criminal, or military strife in a country;
“(ii) all treatment that the United States regards as unfair, offensive, unjust, unlawful, or unconstitutional;
“(iii) intermittent harassment, including brief detentions;
“(iv) threats with no actual effort to carry out the threats, except that particularized threats of severe harm of an immediate and menacing nature made by an identified entity may constitute persecution; or
“(v) non-severe economic harm or property damage.”.