[Federal Register Volume 65, Number 235 (Wednesday, December 6, 2000)]
[Rules and Regulations]
[Pages 76121-76138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30601]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 208
[INS Order No. 1865-97; AG Order No. 2340-2000]
RIN 1115-AE93
Asylum Procedures
AGENCY: Immigration and Naturalization Service, Justice; and Executive
Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the Department of Justice regulations
implementing the provisions of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), governing asylum claims.
Additionally, this rule amends portions of the regulations governing
cases in which an applicant has established past persecution or in
which an applicant may be able to avoid persecution in a particular
country by relocating to another area of that country. Finally, the
rule identifies factors that may be considered in the exercise of
discretion in asylum cases in which the alien has established past
persecution but may not have a well-founded fear of future persecution.
This final rule will ensure that asylum applications are processed in
accordance with the Immigration and Nationality Act (Act), as amended
by IIRIRA, as well as with international instruments.
DATES: This rule is effective January 5, 2001.
FOR FURTHER INFORMATION CONTACT: For matters relating to the
Immigration and Naturalization Service--Joanna Ruppel, International
Affairs, Department of Justice, Immigration and Naturalization Service,
425 I Street NW., ULLICO third floor, Washington, DC 20536, telephone
(202) 305-2663. For matters relating to the Executive Office for
Immigration Review--Charles Adkins-Blanch, General Counsel, Executive
Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls
Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
I. Background
Regulations To Implement the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996
On March 6, 1997, the Service and EOIR jointly published in the
Federal Register, at 62 FR 10312, an interim rule to implement Public
Law 104-208 (110 Stat. 3546) (IIRIRA). That legislation significantly
amended several parts of the Immigration and Nationality Act (``Act''
or ``INA''), including part 208. The interim regulations implementing
IIRIRA were preceded by a notice of proposed rulemaking, published in
the Federal Register on January 3, 1997, at 62 FR 444, and providing a
30-day comment period. The interim rule provided a 120-day comment
period. The Department of Justice (Department) received 39 comments on
the interim rule in addition to the 124 comments already received as a
result of the proposed rule. This final rule reflects further changes
resulting from comments received in response to both the original
proposed rule and the interim rule.
Proposed Rule Regarding Past Persecution, Internal Relocation, and
Discretion (Past Persecution Rule)
On June 11, 1998, at 63 FR 31945, the Service and EOIR jointly
published in the Federal Register a proposed rule to change portions of
8 CFR 208.13 and 208.16 in order to provide further guidance on
adjudicating asylum cases and withholding of removal cases when an
applicant has established past persecution and when the applicant may
be able to avoid persecution in his or her home country by relocating
to another area of that country. The rule proposed to establish new
guidelines concerning the Attorney General's exercise of discretion in
cases in which past persecution is established, and the types of
evidence that may be considered in determining whether an applicant has
a well-founded fear of future persecution. Additionally, the rule
proposed to identify new factors that could be considered in the
determination whether to grant asylum when an applicant has established
past persecution but no longer has a well-founded fear of future
persecution. The Department received 35 comments on the proposed past
persecution rule.
The Department has elected to split part 208 from the rest of the
IIRIRA interim regulations and to incorporate amendments to part 208
into this final rule based both on comments to the IIRIRA interim rule
and on comments to the June 1998 proposed rule regarding past
persecution. In the future, the Department will publish a proposed rule
concerning the definition of ``persecution'' and the definition of
``particular social group.'' Those new proposals are based in part on
certain of the provisions being made final in this rule.
II. Comments
Most of the commenters on both the interim IIRIRA rule and proposed
past persecution rule represented either attorney organizations or
voluntary organizations predominantly involved with refugees and asylum
claimants. The Department also received comments from individual
attorneys and the regional representative of United Nations High
Commissioner for Refugees (UNHCR). Since many of the comments were
duplicative or endorsed the submissions of other commenters, the
Department will address the comments by section and topic, rather than
reference each comment and commenter. The following discussion
[[Page 76122]]
also identifies amendments made by the Department to clarify and
streamline the regulations as part of the Administration's reinvention
and regulation streamlining initiative.
Sec. 208.2--Jurisdiction
To clarify jurisdiction over asylum applications, the Department
has reorganized and revised this section as follows:
(1) Language has been added to Sec. 208.2(a) to establish that the
Office of International Affairs has initial jurisdiction over credible
fear determinations under Sec. 208.30 and reasonable fear
determinations under Sec. 208.31.
(2) Language in Sec. 208.2(a) relating to the filing of a complete
application has been removed as redundant with the provisions of
Sec. 208.3.
(3) Section 208.2(b)(3) has been redesignated as Sec. 208.2(b) to
provide a general description of Immigration Court jurisdiction,
relevant to the majority of asylum applications adjudicated in
Immigration Court, prior to discussion of the more limited jurisdiction
applicable in circumstances described in new Sec. 208.2(c).
(4) The first sentence in new Sec. 208.2(b) (formerly
Sec. 208.2(b)(3)), which refers to an immigration judge's jurisdiction
over asylum applications ``after a copy of the charging document has
been filed with the Immigration Court,'' has been amended. The
Department has removed the words ``a copy of'' from that sentence
because, in general, only the charging document with the original
signature of the Service officer who issued the charging document may
be filed with the Immigration Court. The Department also amended the
last sentence in Sec. 208.2(b) to establish that immigration judges
have exclusive jurisdiction over credible fear determinations that have
been referred to the Immigration Court pursuant to Sec. 208.30, as well
as reasonable fear determinations that have been referred to the
Immigration Court pursuant to Sec. 208.31. In addition, the reference
to ``Executive Office for Immigration Review'' has been replaced with
``Immigration Court'' because only immigration judges have jurisdiction
over credible fear and reasonable fear review proceedings.
(5) Section 208.2(b)(1) has been redesignated as Sec. 208.2(c),
governing asylum and withholding proceedings for those aliens not
entitled to removal proceedings under section 240 of the Act. Section
208.2(c)(1) relates to aliens who are not entitled to proceedings under
section 240 of the Act and are eligible to apply only for asylum and
withholding of removal. Section 208.2(c)(2) relates to jurisdiction
over proceedings that are limited to requests for withholding of
removal pursuant to Sec. 208.31, after an alien subject to
reinstatement of a prior order under section 241(a)(5) of the Act or
administrative removal under section 238(b) of the Act has been found
to have a reasonable fear.
(6) The Department has rewritten the language of
Sec. 208.2(c)(1)(v) (formerly Sec. 208.2(b)(1)(v)), to clarify the
existing rules relating to cases falling under section 235(c) of the
Act. Section 235(c) provides an expedited removal process for certain
aliens who are suspected of being inadmissible on national security
grounds; the Service has the authority to order such an alien removed
without further inquiry or hearing by an immigration judge, as provided
in Sec. 235.8 of this chapter.
The current regulatory scheme provides adequate safeguards to
ensure that the expedited nature of removal under section 235(c) is
balanced against the right to apply for asylum in appropriate cases. An
immigration officer or immigration judge must initiate certain
procedures described in 8 CFR 235.8 when an arriving alien is suspected
of being inadmissible on security or related grounds. Only after those
procedures have been completed and a permanent order of inadmissibility
is issued would the question arise regarding eligibility for asylum or
withholding of removal. Although some categories of persons found
inadmissible on those grounds are ineligible for asylum, other persons,
such as those found inadmissible based on membership in a terrorist
organization, remain eligible for asylum.
The Regional Director is authorized to pretermit an asylum
application for aliens who have been issued a permanent order of
inadmissibility. However, in some cases, and in the exercise of
prosecutorial discretion, the Regional Director may choose to place
persons found subject to removal under section 235(c) of the Act, but
who are not subject to the bars to asylum, in asylum-only proceedings
under Sec. 208.2(c)(1) by issuing a Form I-863, Notice of Referral to
Immigration Judge. In those cases in which the Service has
affirmatively decided to place an alien in asylum-only proceedings and
has issued a Form I-863, the immigration judge would then have
jurisdiction to hear the alien's asylum application. Of course, unless
the Service has issued a Form I-863 to an alien who is found to be
removable under section 235(c) of the Act, the immigration judges have
no jurisdiction with respect to those cases.
The Department further notes that Sec. 235.8 of this chapter, as
amended by the regulations implementing the Convention Against Torture,
expressly limits the applicability of Sec. 208.2. Section 235.8(b)(4)
specifically states that persons seeking withholding under section
241(b)(3) of the Act or the Convention Against Torture are not subject
to the ``provisions of part 208 of this chapter relating to
consideration or review by an immigration judge, the Board of
Immigration Appeals or an asylum officer.'' Instead, it is the
Service's responsibility to ensure that no removals are conducted under
section 235(c) that violate our international obligations; the process
for making such a determination remains within the Service's control.
(7) Section 208.2(c)(1)(vi) [formerly section 208.2(b)(1)(vi)] has
been amended to clarify that the exclusive jurisdiction of the
immigration judge comes into effect only when the district director
refers an alien described in this provision for a hearing that is
limited to asylum and withholding of removals.
(8) In Sec. 208.2(c)(3)(i) (formerly Sec. 208.2(b)(2)(i)), which
describes rules of procedures, the reference to ``8 CFR part 240'' in
the first sentence has been amended to read ``8 CFR part 240, subpart
A,'' to clarify that hearings limited to eligibility for asylum and/or
withholding of removal shall be conducted under the same procedures
that apply in removal proceedings.
(9) Section Sec. 208.2(b)(2)(ii) has been redesignated as
Sec. 208.2(c)(3)(ii), but otherwise is unchanged.
(10) Section 208.2(b)(2)(iii) has been redesignated as
Sec. 208.2(c)(3)(iii). Additionally, it has been amended by removing
reference to sections 208, 212(h), 212(i) of the Act and by adding an
exception based on a showing of exceptional circumstances, in order to
reflect the statutory language in section 240(b)(7) of the Act.
Sec. 208.3--Form of Application
The name of the Form I-589, Application for Asylum and Withholding
of Removal, as it appeared in Sec. 208.3(a) has been corrected to
``Form I-589, Application for Asylum and for Withholding of Removal.''
Section 208.3(c)(4) has been corrected to reflect that section 274C of
the Act provides for criminal as well as civil penalties for knowingly
placing false information on an Application.
Sec. 208.4--Filing the Application
A considerable number of comments were received regarding the 1-
year filing deadline contained in section 208(a)(2)(B) of the Act and
the
[[Page 76123]]
provisions for exemption contained in section 208(a)(2)(D) of the Act
relating to changed conditions.
Some commenters took issue with the deadline itself. While the
Department understands the concerns of those commenters, the 1-year
filing deadline is a statutory requirement and therefore cannot be
removed by rulemaking.
Some commenters suggested that an asylum officer or immigration
judge should question an applicant before an application can be
rejected as untimely filed. This suggestion has been adopted for two
reasons. First, the decision on a tardy filing issue can best be made
only after an asylum officer, in an interview, or immigration judge, in
a hearing, has given an applicant the opportunity to present any
relevant and useful information bearing on any prohibitions on filing.
Second, for applicants who are placed in removal proceedings, the
immigration judge must still determine whether the applicant is
eligible for withholding of removal, even if it is found that the alien
is ineligible to apply for asylum.
Language in Sec. 208.4(a)(2)(ii) was added for consistency with
Sec. 1.1(h), which defines the term ``day'' for computing the period of
time for taking action provided in 8 CFR. When calculating the one-year
period when the last day of the period falls on a Saturday, Sunday, or
legal holiday, the period shall run until the end of the next day that
is not a Saturday, Sunday, or legal holiday. One commenter suggested
that the Department consider the filing of an asylum application to be
the date the application is mailed or otherwise sent to the Service or
Immigration Court. This suggestion has been adopted in part. For an
application filed with the Service, an application is considered to
have been filed on the date it is received by the Service. In a case in
which the 1-year filing deadline has not been met, however, if the
applicant provides clear and convincing documentary evidence of mailing
the application within the 1-year period, the mailing date shall be
considered the filing date. For a case before the Immigration Court or
the Board of Immigration Appeals (Board), an asylum application is
considered to have been filed on the date it is received by the Court
or the Board.
In addition, other references to filing an application in paragraph
(a) relating to ``submission of,'' ``submitted,'' or ``applied for''
have also been changed to ``filed'' in order to make language in the
section consistent. Language was also added to reflect that the
provisions of this section apply to asylum applications decided by an
asylum officer, an immigration judge, or the Board.
Many commenters recommended a change in the language of
Sec. 208.4(a)(4) and Sec. 208.4(a)(5) that would indicate the list of
circumstances is not all-inclusive. That suggestion has been adopted.
The Department agreed with several of the recommended amendments to
Sec. 208.4(a)(4), relating to changed circumstances. First, the
Department eliminated the requirement that the changed circumstances be
``objective.'' The modifier ``objective'' was removed to avoid
confusion in cases where, for example, the changed circumstance relates
to a subjective choice an applicant has made, such as a religious
conversion or adoption of political views. Additionally, the Department
eliminated the requirement that the changed circumstances occur within
the United States, because there may be situations in which the changed
circumstances, such as religious conversion, took place outside the
United States, but not in the applicant's home country. The Department
also specified that cessation of the requisite relationship between a
principal applicant and a dependent after the dependent has been
included in the principal applicant's application as a derivative
applicant may constitute a changed circumstance. Finally, the
Department clarified that an adjudicator must take into account an
applicant's delayed awareness of a changed circumstance, such as events
in the home country, when determining whether a period of delay is
reasonable.
Section 208.4(a)(5), relating to extraordinary circumstances, has
been revised to reflect the numerous comments regarding the current
list of circumstances that may constitute extraordinary circumstances.
The Department has added additional circumstances to the non-exhaustive
list, as discussed below. Additionally, the Department has changed the
word ``shall'' in the second sentence of paragraph (a)(5) to ``may'' to
better reflect the statutory language in section 208(a)(2)(D) and to
reinforce the necessity of analyzing each case on an individual basis.
The Department has also added language to the burden of proof
requirement to specify clearly that the applicant bears the burden to
demonstrate that the delay was reasonable under the circumstances.
With respect to Sec. 208.4(a)(5), some commenters suggested that
extraordinary circumstances not be limited to factors beyond the
alien's control. That suggestion has been partially adopted. While it
is hard to imagine a situation that both would be entirely within the
alien's control and would also prevent him or her from filing the
application, it is not difficult to imagine qualifying situations in
which the alien might be forced to choose between the lesser of two
evils, or the alien might be able to exercise a limited amount of
control. The regulation has been amended to provide that the alien must
not have intentionally created the circumstance.
Additionally, the phrase ``but for those circumstances he or she
would have been able to file the application within the 1-year period''
has been modified to ensure consistency with the statutory language to
read ``those circumstances were directly related to the alien's failure
to file the application within the 1-year period.''
In Sec. 208.4(a)(5)(i), the phrase ``of significant duration,'' in
reference to an experience of serious illness or disability, was
removed to allow for a situation in which the timing of an applicant's
serious illness or disability prohibited him or her from filing the
asylum application within one year of the individual's arrival in the
United States, even though the illness or disability was of short
duration.
Several commenters recommended that the list of extraordinary
circumstances be expanded to include maintaining valid immigrant or
nonimmigrant status, in addition to maintaining Temporary Protected
Status. The Department has accepted the recommendation because there
are sound policy reasons to permit persons who were in a valid
immigrant or nonimmigrant status, or were given parole, to apply for
asylum within a reasonable time after termination of parole or
immigration status. The Department does not wish to force a premature
application for asylum in cases in which an individual believes
circumstances in his country may improve, thus permitting him to return
to his country. For example, an individual admitted as a student who
expects that the political situation in her country may soon change for
the better as a result of recent elections may wish to refrain from
applying for asylum until absolutely necessary. The Department would
expect a person in that situation to apply for asylum, should
conditions not improve, within a very short period of time after the
expiration of her status. Failure to apply within a reasonable time
after expiration of the status would foreclose the person from meeting
the statutory filing requirements. Generally, the Department expects an
asylum-seeker to apply as soon as possible after expiration of his or
her valid status, and failure to do so will result in rejection
[[Page 76124]]
of the asylum application. Clearly, waiting six months or longer after
expiration or termination of status would not be considered reasonable.
Shorter periods of time would be considered on a case-by-case basis,
with the decision-maker taking into account the totality of the
circumstances.
Others recommended including situations involving the death or
serious illness or incapacity of the applicant's legal representative
or of a member of the applicant's immediate family. The Department
agrees that there may be situations in which the serious illness of an
applicant's representative or family member could relate to an
applicant's delay in applying for asylum. Therefore, that suggestion
has been adopted. As with all exceptions to the 1-year filing
requirement based on extraordinary circumstances, the applicant would
have to demonstrate that the illness of the representative or family
related to the delay in filing and that the applicant applied for
asylum within a reasonable amount of time after the illness.
Some commenters suggested broadening the two illustrative lists.
The lists have been expanded to include some, but not all, of the
suggestions. The Department's decision to include only some of the
circumstances suggested in the comments does not mean that the
Department has determined that those that were not included could never
excuse tardiness. The fact that an applicant's circumstances are
described in the list of possible changed or extraordinary
circumstances does not in itself mandate that a tardy filing be
excused; nor does the lack of such a description mean that the
circumstances cannot be raised during an interview or hearing and
result in excuse of the untimely filing. The lists merely provide
examples of circumstances that might result in a tardiness being
excused. In order for a tardy filing to be excused, an applicant must
first credibly show the existence or occurrence of the circumstances
(regardless of whether those circumstances are specifically listed in
the regulations), and then show (1) for changed circumstances, that
those changes materially affect the alien's eligibility for asylum, or
(2) for extraordinary circumstances, that those circumstances directly
relate to the alien's failure to file the application within the 1-year
deadline. Without the direct connection, the alien is statutorily
ineligible to apply for asylum.
The Department notes that the existing provision in this section
relating to ``ineffective assistance of counsel'' raises questions that
have arisen under the Act more generally concerning whether, and if so
when, errors by counsel may furnish a ground for an alien to obtain
relief, such as setting aside a final order or excusing a failure to
comply with a statutory deadline. For example, in a case that is
currently pending before the Board of Immigration Appeals, the Service
is arguing that because there is no constitutional right to government-
furnished counsel in immigration proceedings, there is, under Coleman
v. Thompson, 501 U.S. 722 (1991), no constitutional basis for relief
based on a claim of ineffective assistance of counsel. Similar issues
concerning errors of counsel have been raised in court in other
contexts under the Act. The Department accordingly is re-examining the
ineffective-assistance-of-counsel provision in the asylum regulations
as part of a broader assessment of the role that counsel error may play
in requests for relief in immigration proceedings. However, because
those issues have not yet been raised in the context of the current
rulemaking proceedings, this provision is being carried forward
unchanged at the present time. The Department will address those issues
separately in the future.
Certain commenters appeared to be confused about the amount of
additional time an applicant should receive in order to file an
application when it has been determined that a changed or extraordinary
circumstance is present in a particular case. While most understood
that the finding of changed or extraordinary circumstances justifies
the tardiness being excused to the extent necessary to allow the alien
a reasonable amount of time to submit the application, some believed
that the alien would automatically receive one year from the date of
the circumstance involved to file a timely application. Although there
may be some rare cases in which a delay of one year or more may be
justified because of particular circumstances, in most cases such a
delay would not be justified. Allowing an automatic one year extension
from the date a changed or extraordinary circumstance occurred would
clearly exceed the statutory intent that the delay be related to the
circumstance. Accordingly, that approach has not been adopted.
Section 208.4(b)(2) has been clarified to reflect that the director
of the local asylum office, in addition to the director of the asylum
program, can authorize the filing of an application directly with a
local asylum office instead of with a Service Center. A provision was
also added to this section that allows an application to be filed
directly with an asylum office in a case in which an individual who was
previously included in a principal applicant's asylum application as a
dependent has lost derivative status and wants to file as a principal
applicant.
The title of Sec. 208.4(b)(3) has been changed from ``With the
immigration judge'' to ``With the Immigration Court,'' and in
Sec. 208.4(b)(3)(i), the phrase ``jurisdiction over the port, district
office, or sector after service and filing of the appropriate charging
document'' has been changed to ``jurisdiction over the underlying
proceeding.'' The form number of the Notice of Referral to Immigration
Judge (I-863) has also been added to Sec. 208.4(b)(3)(iii).
Finally, the second sentence of Sec. 208.4(b)(5) has been amended
to reflect that submission of an asylum application to the district
director does not automatically trigger the issuance of a Form I-863,
Notice of Referral to an Immigration Judge.
Sec. 208.5--Special Duties Towards Aliens in Custody of the Service
Language was added to reflect that paragraph (a), which relates to
aliens in the custody of the Service who request asylum or withholding
of removal, or who express a fear of persecution or harm, does not
pertain to an alien in custody pending a reasonable fear determination
pursuant to Sec. 208.31, just as it does not pertain to an alien
pending a credible fear determination. However, a sentence was added to
reflect that, even though the Service is not required to provide
application forms to aliens pending a credible fear or reasonable fear
determination, the Service may provide the forms upon request. The word
``persecution'' was deleted after the terms ``credible fear'' and
``reasonable fear'' to reflect that a credible fear or reasonable fear
determination involves an evaluation of both fear of persecution and
fear of torture. Finally, Sec. 208.5(b)(1)(ii) has been amended to
allow a district director to extend the 10-day filing period for
crewmen when good cause exists.
Sec. 208.6--Disclosure to Third Parties
One commenter suggested the restoration of the second sentence in
Sec. 208.6(a), which had been removed as superfluous, relating to the
deletion of identifying details from copies of asylum cases in public
reading rooms. The Department believes Sec. 208.6 protects the
confidentiality of asylum applicants in public reading rooms and,
therefore, has decided not to restore the removed language to this
section. The Department has added language to
[[Page 76125]]
Sec. 208.6 regarding the disclosure to third parties of information and
records relating to credible fear interviews and determinations, as
well as reasonable fear interviews and determinations, to protect
claimants' confidentiality in those proceedings.
The Department is considering further amendments to the
confidentiality provisions and will publish a proposed rule if it
decides further change is necessary.
Sec. 208.7--Employment Authorization
One commenter suggested a clarification that an asylum office
referral of an asylum application to an immigration judge does not stop
the 150-day employment authorization clock. This suggestion has not
been adopted because it is not entirely accurate. Although the 150-day
clock continues to run even if an asylum application is referred to the
Immigration Court, an applicant may cause a delay that could stop the
clock, including failing to appear at a hearing before the Immigration
Court, or failing to follow fingerprinting requirements. Accordingly,
this section has not been changed.
Sec. 208.9--Procedure for Interview Before an Asylum Officer
This section has not been substantively changed, although several
comments were received. The reference to Sec. 208.14(b) in paragraph
(d) of this section was amended to refer to Sec. 208.14(c) for
consistency with revisions to Sec. 208.14.
One commenter suggested that the regulations should contain
protections to ensure the non-adversarial nature of the asylum
interview and further commented that, because Sec. 208.9(b) states that
interviews will be conducted separate and apart from the public except
at the request of the applicant, the asylum applicant, not the asylum
officer, has the right to determine the number of individuals who may
be present during an asylum interview. The Department believes that the
regulations contain sufficient guidelines regarding the nonadversarial
nature of the interview and has not amended them. The asylum officer
needs to retain control over the flow and parameters of the interview,
and the Department believes it is appropriate for asylum officers,
taking into account the applicant's right to bring a representative and
to present witnesses, and his or her need for an interpreter, to
determine the number of individuals who may be present at the
interview. Individual problems that may arise are more appropriately
addressed by raising them with local asylum office directors than
through regulatory changes.
The same commenter suggested that the asylum interview should be
taped for accurate preservation of the record. While the Department has
carefully considered that comment, and the Service does not rule out
adopting a policy to tape record interviews in the future, at the
present time the Department will not adopt that suggestion. In order to
benefit the process, the taping would have to be transcribed for
inclusion in the record. That would increase the cost, time, and
personnel resources required to adjudicate an asylum application in a
system that was designed to have an initial nonadversarial hearing with
an asylum officer, followed, if the case is referred, by a de novo,
more formal adversarial hearing, which is recorded, before an
immigration judge. The Service believes that, in light of current
circumstances, the administrative cost and burden of tape recording
asylum interviews outweigh any expected benefit from the recording of
interviews. As previously stated, however, the Service does not rule
the option out for the future.
The same commenter also suggested that the Department should secure
interpreters for asylum applicants who are interviewed at an asylum
office. If the Department is unwilling to do so, the commenter
continued, the Department should not penalize an applicant with an
unexcused absence for failing to bring a qualified interpreter. The
interim regulation provided an applicant a greater opportunity to find
a qualified interpreter by permitting an applicant to provide an
interpreter who is fluent in English and the applicant's native
language, or any other language in which the applicant is fluent. The
Service recognizes that Service-appointed interpreters could benefit
applicants and the program. At this time, all federal agencies,
including the Service, are reviewing issues relating to language
interpreters in light of the recent Presidential Executive Order 13116,
which directs federal agencies to establish written policies by
December 11, 2000, on the language-accessibility of their programs and
the programs of those who receive federal funds. The issue of
interpreters raised by the commenter will therefore be addressed in
compliance with Executive Order 13116.
The commenter's final suggestion was to incorporate into this part
of the regulations guidelines for paroling detained asylum-seekers. The
parole of aliens into the United States is within the purview of a
district director and covered under Sec. 212.5. The Department believes
that Sec. 212.5 contains sufficient guidelines to the Service for
determining which aliens may be paroled, and has not included any
guidelines for paroling aliens into this part.
Another commenter suggested that an applicant should be able to
authorize counsel or a representative to pick-up a decision, without
interruption of the 150-day clock. Section 239(a)(1) of the Act,
however, specifically states that a Notice to Appear shall be given in
person to the alien. The Act does not allow for a counsel or
representative to accept service of a Notice to Appear unless the
decision is mailed.
The same commenter suggested that Sec. 208.9(d) should allow an
attorney the opportunity to respond orally to any questions or evidence
presented at the interview rather than allowing an asylum officer to
require a representative to submit comments in writing. The current
provisions in this section do allow for an attorney or representative
to make an oral statement, and they also allow an asylum officer the
discretion to have a representative submit comments in writing rather
than orally, depending upon the particular facts in the case.
Consistent with the current regulations, it is the general practice of
asylum officers to allow an attorney the opportunity for oral responses
and to ask questions at the end of the interview, subject to
appropriate limitations. Therefore, the Department does not believe it
necessary to make the suggested changes.
Sec. 208.10--Failure To Appear at an Interview
The Department received comments from one commenter on this
section. The comments included a request for guidance on how an
applicant can prove that the Service did not mail notice of interview
to his or her address, and what constitutes ``exceptional
circumstances.'' With regard to the latter, the commenter recommended
that the term ``exceptional circumstances,'' which the commenter viewed
as too harsh, be replaced with ``good cause.''
The Department declines to provide guidance on how to prove a
notice of interview was not properly provided, and to further define
``exceptional circumstances'' beyond the definition provided in section
240(e)(1) of the Act. Determining whether a notice was properly
provided and what constitutes ``exceptional circumstances'' must be
reviewed on a case-by-case basis. That
[[Page 76126]]
approach allows an asylum office director the discretion to determine
the type of evidence necessary to show that notice of interview was not
properly given in a particular individual's case, and the types of
circumstances that may be considered ``exceptional.'' In accordance
with section 208(d)(5)(A)(v) of the Act, the Service must excuse the
applicant's failure to appear for an interview for exceptional
circumstances, but may excuse an applicant's failure to appear for good
cause where appropriate. As a practical matter, the Service generally
will exercise discretion to excuse a first-time failure to appear if
(1) good cause has been shown, (2) proceedings before the Immigration
Court have not been initiated, and (3) the excuse is received within a
reasonable amount of time after the interview date. In the near future,
the Service intends to issue a proposed rule clarifying the
consequences of failure to appear, which will give the public further
opportunity to comment on those issues.
Sec. 208.12--Reliance on Information Compiled by Other Sources
In response to one comment, paragraph (b) of this section was
revised to clarify that a prohibition on discovery of information does
not include requests for information made under the Freedom of
Information Act (FOIA).
Sec. 208.13--Establishing Asylum Eligibility
Some commenters suggested that the former Secs. 208.13(b)(2)(ii)
and 208.16(b)(4) (giving due consideration to evidence that the
government persecutes its nationals for unauthorized departure or
seeking asylum) be reinstated in the regulations. This matter was
thoroughly reviewed in the preamble to the interim rule at 62 FR 10312
in response to the earlier comments to the proposed rule at 62 FR 444.
The comments to the interim rule raised no significant issues that were
not previously addressed, and no changes have been made in that regard.
A new Sec. 208.13(c)(2)(F) was added for consistency with the
provisions of the Anti-terrorist and Effective Death Penalty Act of
1996 (AEDPA). For applications for asylum filed prior to April 1, 1997,
an applicant who falls within subclauses (I), (II), or (III) of section
212(a)(3)(B)(i) of the Act (relating to terrorist activity) is
ineligible for a grant of asylum unless it is determined that there are
no reasonable grounds to believe that the individual is a danger to the
security of the United States.
Some commenters argued that language about discretionary denials of
asylum in Sec. 208.13(d) was inconsistent with section 208(a)(2)(A) of
the Act, which provides for rejection of an asylum application when an
alien may be removed pursuant to a bilateral or multilateral agreement
to a safe third country. In drafting the interim rule, the Department
had based its decision to include this regulatory provision on section
208(d)(5)(B) of the Act (which gives the Attorney General the authority
to ``provide by regulation for any other conditions or limitations on
the consideration of an application for asylum not inconsistent with
this Act'') and section 208(b)(2)(C) of the Act (which gives the
Attorney General authority to establish limitations and conditions
under which an alien may be found ineligible for asylum), not on
section 208(a)(2)(A) of the Act. While the Department still finds that
the regulatory provision would be fully in keeping with the Act, it has
decided to remove it from the regulations to avoid confusion.
The Department notes that it has not issued a notice in the Federal
Register announcing that the United States has entered into a bilateral
or multilateral agreement permitting removal to a safe third country
pursuant to section 208(a)(2)(A) of the Act. The Department indicated
in the final rule at 59 FR 62284 its intent to notify the public in
advance through a Federal Register publication should the United States
enter into any such agreements.
Past Persecution Rule
This final rule also incorporates changes to this section and
Sec. 208.16 (withholding of removal) that were the subject of a
proposed rule that was published in the Federal Register on June 11,
1998, at 63 FR 31945. In that rule, changes were proposed for
adjudicating cases in which an applicant has established past
persecution or in which an applicant may be able to avoid persecution
in his or her home country by relocating to another area of that
country.
There were 35 comments submitted in response to the publication of
the June 11, 1998, proposed rule. Twenty-six of the commenters argued
that the proposal should be withdrawn and the effort to amend the
regulation abandoned because the proposed changes violate the Act under
which the Attorney General is given authority over the adjudication of
applications for asylum and withholding of removal, and are
inconsistent with precedent court decisions and international law. The
other commenters were also opposed to virtually all the changes
included in the proposed rule, but did not specifically request that
the proposed rule be abandoned outright.
First, the Department does not agree with the argument that those
regulatory changes are ultra vires, or beyond the authority granted to
the Attorney General under the Act. Under section 208 of the Act, when
an individual has established that he or she is a ``refugee,'' as
defined in section 101(a)(42)(A) of the Act, the Attorney General is
granted the discretion to determine which ``refugees'' will be granted
asylum in the United States. Prior to enactment of IIRIRA, this broad
delegation of power to the Attorney General over the adjudication of
asylum applications withstood challenges to the Attorney General's
authority to implement rules that denied asylum to persons who
otherwise met the ``refugee'' definition for reasons other than those
listed in the Act. Komarenko v. INS, 35 F.3d 432, 435-36 (9th Cir.
1994) (rejected challenge to the Attorney General's authority to issue
a regulatory provision that denied asylum to refugees who were
convicted of particularly serious crimes); Yang v. INS, 79 F.3d 932
(9th Cir.), cert. denied, 519 U.S. 824 (1996) (rejected challenge to
the Attorney General's authority to deny asylum to refugees who were
found to have been firmly resettled). Although the commenters correctly
point out that section 208 of the Act was amended by IIRIRA to make
several categories of individuals ineligible for asylum who had
previously been barred only by regulation, section 208(b)(2)(C) of the
Act specifically continues to give the Attorney General authority ``by
regulation (to) establish additional limitations and conditions * * *
under which an alien shall be ineligible for asylum.''
The Department has concluded that revisions to the regulatory
language providing guidelines on the exercise of discretion in
determining an applicant's eligibility for asylum, once he or she has
been found to meet the definition of refugee based on past persecution,
are justified and in line with the administrative and judicial
precedents outlined in the Supplementary Information section to the
proposed rule at 63 FR 31945. That includes, inter alia, consideration
of the ability of an applicant who has been subjected to past
persecution to relocate safely in his or her home country, a factor
that has been recognized as appropriate for the Attorney General to
consider in the exercise of her discretion to grant or deny asylum.
Harpinder Singh v. Ilchert, 63 F.3d 1501, 1511 (9th Cir.
[[Page 76127]]
1995); Surinder Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995). In
addition, the Department has concluded that requiring consideration of
the applicant's ability to relocate safely in his or her home country
in determining whether the applicant has a well-founded fear of
persecution is in line with the previous administrative and judicial
decisions, such as Matter of Acosta, 19 I. & N. Dec. 211, 235 (BIA
1985), modified on other grounds, Matter of Mogharrabi, 19 I & N Dec.
439 (BIA 1987); Etugh v. INS, 921 F.2d 36, 39 (3rd Cir. 1990);
Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986), outlined
in the Supplementary Information section to the proposed rule.
The Department does agree, however, that some changes to the
proposed language are appropriate in order to ensure that those
provisions are applied in a manner that complies with our international
obligations under the 1951 Convention relating to the Status of
Refugees (``1951 Convention''), as modified by the 1967 Protocol
relating to the Status of Refugees. In determining how to revise these
provisions, the Department referred to the relevant provisions of the
United Nations High Commissioner for Refugee's Handbook on Procedures
and Criteria for Determining Refugee Status (``UNHCR Handbook'').
Although the Department is not bound by the UNHCR Handbook, the
handbook can serve as a ``useful interpretative aid,'' INS v. Aguirre-
Aguirre, 526 U.S. 415, 427 (1999), and ``provides significant guidance
in construing the Protocol, to which Congress sought to conform'' with
the passage of the Refugee Act of 1980. INS v. Cardoza-Fonseca, 480
U.S. 421, 439 n.22 (1987). In Secs. 208.13(b)(1)(i)(A) and
208.16(b)(1)(i)(A), the regulatory language for overcoming the
presumption of a well-founded fear of persecution and a threat to the
applicant's life or freedom because of past persecution is changed to
state that the Service must show a ``fundamental change in
circumstances'' in order to overcome the presumption. That phrase is
consistent with Article 1 C(5) of the 1951 Convention, reflects the
relevant language regarding the fundamental nature of the change at
paragraph 135 of the UNHCR Handbook, and is also the exact language
provided in section 208(c)(2)(A) of the Act concerning the termination
of a refugee's grant of asylum in the United States. By adopting that
language rather than that requiring a showing of changed country
conditions to overcome the presumption, other changes in the
circumstances surrounding the asylum claim, including a fundamental
change in personal circumstances, may be considered, so long as those
changes are fundamental in nature and go to the basis of the fear of
persecution.
The amended language in Secs. 208.13(b)(1) and 208.16(b)(1)(i) is
not intended to alter the holding in the Board decision Matter of N-M-
A, Int. Dec. 3368 (BIA 1998), that the presumption raised by a finding
of past persecution applies only to a fear of future persecution based
on the original persecution, and not to a fear of persecution from a
new source unrelated to the past persecution. In Matter of N-M-A, the
Board explained, ``once an applicant has demonstrated that he has
suffered past persecution on account of a statutorily-protected ground,
and the record reflects that country conditions have changed to such an
extent that the applicant no longer has a well-founded fear of
persecution from his original persecutors, the applicant bears the
burden of demonstrating that he has a well-founded fear of persecution
from any new source.'' While the amendments to Secs. 208.13(b)(1) and
208.16(b)(1)(i) change the regulations to the extent that the
presumption may be overcome by events other than a change in country
conditions, the regulations retain and specify the requirement that the
presumption relates only to fear of harm based on facts that give rise
to the original persecution.
In the sections of the regulations dealing with the issue of
internal relocation, Secs. 208.13(b)(1)(i)(B) and (b)(2)(ii), and
208.16(b)(1)(i)(B) and (b)(2), the provisions have been revised to
require a showing by the Service that ``under all the circumstances, it
would be reasonable to expect the applicant to (relocate).'' That
language is nearly identical to the language used in the relevant
section of the UNHCR Handbook, paragraph 91. The reasonableness
standard with regards to relocation is consistent with the general
standard for adjudicating well-founded fear claims.
With regard to other sections of the proposed rule at 63 FR 31945,
some commenters recommended that the language regarding the burden of
proof to overcome the presumption that arises after a finding of past
persecution should be revised to indicate clearly that the Service
bears the burden to overcome those presumptions, by a preponderance of
the evidence, even in the context of asylum adjudications by an asylum
officer. The Department agrees, and changes have been made accordingly.
The Department declines to adopt the recommendation of many
commenters to allow adjudicators to consider additional humanitarian
factors, unrelated to the severity of the past persecution or other
serious harm, in exercising their discretion to grant asylum to a
refugee who no longer has a well-founded fear of persecution. In
allowing an applicant to be granted asylum based on past persecution
alone when it is determined that the applicant has established either
(1) compelling reasons because of the severity of the past harm, or (2)
a reasonable possibility that he or she may suffer serious harm upon
removal to his or her home country, the Department is already providing
avenues for relief that are consistent with the protection function of
the 1951 Convention, and that go beyond the provisions of the UNHCR
Handbook. See paragraph 136 of the UNHCR Handbook. As explained in the
Supplementary Information to the proposed rule published in the Federal
Register on June 11, 1998, at 63 FR 31945, 31947, by ``other serious
harm,'' the Department means harm that is not inflicted on account of
race, religion, nationality, membership in a particular social group,
or political opinion, but is so serious that it equals the severity of
persecution. Mere economic disadvantage or the inability to practice
one's chosen profession would not qualify as ``other serious harm.''
In summary, the changes in the regulation are consistent with the
Act, relevant case law, international instruments, and guidance in the
UNHCR Handbook. The regulations leave intact the important principle
that an applicant who has established past persecution on account of
one of the five grounds is a refugee. It also continues to provide that
a person who has established past persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion shall be presumed to have a well-founded fear of
future persecution on account of those same grounds, and shall also be
presumed to have established a threat to his or her life or freedom
under the standard for eligibility for withholding of removal. The
regulations also make it clear that the Service has the burden of
overcoming such presumptions by a preponderance of the evidence.
Finally, the Department has renamed paragraph (b) of Sec. 208.13,
currently ``persecution,'' to ``eligibility,'' to reflect the
incorporation of the new paragraph (b)(3), regarding reasonableness of
internal relocation, as well as the other eligibility requirements
contained in paragraphs (b)(1) and (b)(2).
[[Page 76128]]
Sec. 208.14--Approval, Denial, Referral, or Dismissal of Application
This section has been substantially revised and reorganized to
clarify the circumstances under which an asylum officer may grant,
deny, or refer an asylum application. Because an asylum officer's
authority to grant asylum to an applicant within the Asylum Office's
jurisdiction is unrelated to an applicant's status, discussion of
authority to grant asylum has been consolidated in Sec. 208.14(b). The
statutory requirement that identity checks be completed before asylum
can be granted by an asylum officer has been added to paragraph (b).
Discussion of an asylum officer's authority to deny, dismiss, or
refer an application has been placed in a new Sec. 208.14(c), with a
breakdown of how an application will be processed based on the
applicant's status. In Sec. 208.14(c)(1), language was added to clarify
that applicants who are inadmissible or deportable will either be
referred to the Immigration Court, or have their asylum applications
dismissed. Section 208.14(c)(2) now clarifies that the classes of
aliens to whom an asylum officer may grant or deny asylum status
include aliens in valid Temporary Protected Status and immigrant
status. New Secs. 208.14(c)(3) and 208.14(c)(4) were added, and detail
how the Service processes asylum applications of aliens who were
paroled into the United States, depending upon the decision an asylum
officer makes on the application and the validity of the parole.
Sec. 208.15--Definition of ``firm resettlement''
All of the references to ``he'' have been changed to ``he or she,''
and the references to ``nation'' have been changed to ``country.''
Sec. 208.16--Withholding of Removal Under Section 241(b)(3)(B) of the
Act and Withholding of Removal Under the Convention Against Torture
This section was substantially revised with the publication of
February 19, 1999, interim regulations on Article 3 of the Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (Convention Against Torture) in the Federal Register, at 64
FR 8478, with a request for comments. Any comments regarding that
interim rule will be addressed in the final rule implementing the
Convention Against Torture. Some of the comments on the March 6, 1997,
interim rule addressed concerns about how the Department would
implement Article 3 of the Convention Against Torture. Because many of
the commenters' concerns were addressed with the February 19, 1999,
interim rule, they will not be addressed in this supplementary
information.
Language in paragraph (b) relating to eligibility for withholding
of removal is being amended to reflect similar amendments to
Sec. 208.13 on adjudicating claims where past persecution has been
established. See the discussion in this preamble regarding changes in
Sec. 208.13.
Sec. 208.19--Decisions
With the publication of the interim rule at 64 FR 8478 to implement
Article 3 of the Convention Against Torture, Sec. 208.17 was revised,
Secs. 208.18 through 208.22 were redesignated as Secs. 208.19 through
208.23, and a new Sec. 208.18 was added. However, due to Department
error, Sec. 208.17 was not redesignated and was, therefore, dropped
from 8 CFR part 208. This final rule reinstates the former Sec. 208.17
relating to decisions on applications for asylum and for withholding of
removal as the new Sec. 208.19, and redesignates Secs. 208.19 through
208.23 as Secs. 208.20 through 208.24.
Language in Sec. 208.17 that appeared before it was dropped from 8
CFR part 208 has been slightly amended. In response to one comment,
language has been added to indicate that a letter communicating denial
or referral of the application shall state the basis for the denial or
referral.
Sec. 208.20--Determining if an Asylum Application is Frivolous
Section 208.19 has been redesignated as Sec. 208.20, with no
substantive changes. One commenter stated that the regulatory
definition of ``frivolous'' does not contain appropriate safeguards,
and that the Service should advise every asylum applicant of the
consequences of filing frivolous claims. The current regulation
provides appropriate safeguards by stipulating that an immigration
judge or the Board must be satisfied that an applicant had sufficient
opportunity to account for any discrepancies before finding that an
applicant filed a frivolous application, and by permitting an applicant
to seek withholding or removal even if he or she is found to have filed
a frivolous application. The regulation itself also advises an
applicant that he or she is subject to the provisions of section
208(d)(6) of the Act if a final order specifically finds that the alien
knowingly filed a frivolous application. Finally, both the instructions
to the Form I-589 and the application itself warn the applicant about
the consequences of filing a frivolous claim, as required by section
208(d)(4) of the Act.
The Department believes that the current regulation provides for
appropriate safeguards for filing a frivolous asylum application, and
that, for the reasons set forth in the supplemental information to the
January 3, 1997 proposed rule, the definition of frivolous is
sufficient. The Department, therefore, has not changed any language in
this section.
A commenter also suggested that an applicant should not be punished
for voluntarily withdrawing an asylum application, and that the
Department should advise adjudicators that, before finding that an
individual filed a frivolous application, they should consider the fact
that an applicant may not have been able to afford to retain counsel
for advice on the legal strength of an asylum claim. The current
regulation does not contain any provisions that punish an applicant for
withdrawing an asylum application. Any applicant may choose to withdraw
an application at any time prior to a final decision; however, a
withdrawal does not preclude the Service from seeking removal of the
alien if he or she is deportable or removable. The fact that an
applicant may not have hired legal counsel may be one factor, among
others, that an immigration judge or the Board may consider when
determining whether an applicant had sufficient opportunity to account
for any discrepancies or implausible aspects of the claim.
Sec. 208.21--Admission of Asylee's Spouse and Children
Section 208.20 has been redesignated as Sec. 208.21 and
restructured to provide greater clarity. Additionally, this section has
been amended to correct an error in the interim rule published in the
Federal Register at 62 FR 10312, effective April 1, 1997, which omitted
the bar to asylum eligibility based on the commission of a serious non-
political crime outside the United States, for applicants who applied
on or after April 1, 1997. The omission was inadvertent, since such
ground had been specifically included under IIRIRA for asylees. That
error has been corrected and the provision redrafted to specify the
applicable bar for derivative applications filed prior to April 1,
1997, and those filed on or after April 1, 1997. The Service finds that
good cause exists for adopting the provision in this final rule without
the prior notice and comment period ordinarily required by 5 U.S.C.
553(b) because the provision merely codifies in the Service's
regulation the statutory mandates of
[[Page 76129]]
section 604 of IIRIRA. In addition, after reviewing the Department's
implementation of the statutory mandate, it is clear that the omission
was an inadvertent error. Therefore, the notice and comment period
normally required under 5 U.S.C. 553(b) is impracticable and
unnecessary prior to adopting this provision.
Sec. 208.22--Effect on Exclusion, Deportation, or Removal Proceedings
Section 208.21 has been redesignated as Sec. 208.22, and paragraph
(b), which addresses the initiation of removal proceedings upon
termination of an asylum grant, has been moved to Sec. 208.24.
Sec. 208.24--Termination of Asylum and Withholding of Removal
Section 208.23 has been redesignated as Sec. 208.24. Some comments
on Sec. 208.24 suggested that the provision be removed or narrowed, and
that more procedural protections be provided before termination. The
Department finds that the existing procedural protections, which
provide for prior notice of grounds for termination and an opportunity
to respond, are sufficient. No changes have been made in the
regulations governing termination procedures.
However, Sec. 208.24(b)(1) was revised for consistency with the
revisions in this final rule to Sec. 208.16 and for consistency with
the provisions for termination of asylum. The provision that ``[t]he
alien is no longer entitled to withholding of deportation or removal
due to a change of conditions in the country to which removal was
withheld'' has been replaced with, ``The alien is no longer entitled to
withholding of deportation or removal because, owing to a fundamental
change in circumstances relating to the original claim, the alien's
life or freedom no longer would be threatened on account of race,
religion, nationality, membership in a particular social group, or
political opinion in the country from which deportation or removal was
withheld.''
In addition, the former Sec. 208.21(b), concerning the initiation
of removal proceedings, is now paragraph (e) of this section. The
Department deleted the phrase ``under section 235 or 240 of the Act''
from the former Sec. 280.21(b) because an alien may be subject to
removal under other sections of the Act, such as section 238, which
concerns administrative removal of aggravated felons, or section
241(a)(5), which requires reinstatement of prior orders under certain
circumstances.
Sec. 208.30--Credible Fear Determinations
The format of this section has been revised for the purpose of
clarity. Also, a new paragraph (b) has been added at Sec. 208.30; that
paragraph provides that an accompanying dependent (spouse or child) may
be included in the application of the principal alien, if the spouse or
child so chooses.
Some commenters objected to the use of telephonic interpreters in
credible fear interviews. Telephonic interpretation has given asylum
officers flexibility in scheduling and conducting credible fear
interviews, and has proven to be a reliable source of interpretation
services. First, because the number of languages available through
telephonic interpretation is quite large, applicants can be interviewed
in the language or dialect with which they are most comfortable.
Relying on physically present interpreters would limit the number of
languages that are available and, although an alien may be able to
speak a particular language or dialect, it may not be the language or
dialect with which the alien is most comfortable speaking and
understanding. Second, if an applicant requests an interpreter of a
gender other than that of the individual initially assigned to perform
telephonic interpretation services, a replacement interpreter can be
easily identified and enlisted when using a telephonic interpreter, so
the interview does not need rescheduling. The use of physically present
interpreters usually limits the ability to secure such quick personnel
replacements. Finally, an asylum officer can always locate an
interpreter for a particular language on short notice regardless of
whether the interview is conducted at a detention facility or at a
remote location, such as a border port-of-entry. In many instances,
live interpreters cannot appear for an interview on short notice or are
not willing to travel to a remote location for an interview. The
current provision for using telephonic interpreters, which has been in
place for approximately 3 years, has worked well. However, as mentioned
earlier, practices relating to language accessibility in federal
programs are under review as part of the Department's compliance with
Presidential Executive Order 13116. Therefore, the use of telephonic
interpretation will be addressed in compliance with that Executive
Order.
Some commenters suggested that the regulations allow counsel to be
present during the credible fear interview. The regulations already
allow any person with whom the alien chooses to consult to be present.
For purposes of this section, the term ``persons'' is interpreted to
include legal counsel. Accordingly, the regulation has not been changed
in that regard.
There were also some suggestions that the asylum officer's credible
fear interview should also serve as an Asylum Pre-Screening Officer
(APSO) interview for purposes of determining whether the alien should
be released from detention. While a positive credible fear
determination may be considered by a district director when making a
parole decision, it is not determinative, and other factors must be
taken into account, such as whether the applicant is likely to appear
for a hearing or may pose a threat to the community.
Some commenters suggested that the rules specify that credible fear
is a low screening standard. The Department finds that language in
section 235(b)(1)(B)(v) of the Act is more precise than the rather
vague term ``low.'' While the Department does not disagree that it is a
threshold or low standard, defining it as such would only foster debate
about what ``low'' means. Accordingly, the regulation has not been
amended in that regard.
There were also some suggestions that, when a case raises a novel
issue of law, the individual should be referred for a full hearing
before an immigration judge. The regulation has been clarified to
provide that, in making a credible fear determination, the asylum
officer or immigration judge shall take into consideration whether the
case presents novel or unique issues.
Likewise, there were also suggestions that such a referral should
be made regardless of any apparent statutory ineligibility under
section 208(a)(2) or 208(b)(2)(A) of the Act. The Department has
adopted that suggestion and has so amended the regulation.
Several commenters suggested that the Service should presume a
request for appeal by any alien who expressed fear to a pre-screening
officer and tried without success to persuade an asylum officer that
the alien has a credible fear of persecution. It would be contrary to
the intent of the statute to mandate a review in every case, including
those where the alien clearly and knowingly decides not to pursue a
review. However, the regulations have been modified to provide that an
alien's failure or refusal to indicate whether he or she desires a
review shall be deemed to be a request for such review.
The Department has also amended paragraph (b) regarding the
interview procedure by adopting language from Sec. 208.9 on eliciting
testimony and who may act as an interpreter.
[[Page 76130]]
Finally, in Sec. 208.30(g)(2)(iv)(A), the Department added language
that would permit the Service to reconsider a negative credible fear
determination, even after such determination has been affirmed by an
immigration judge, as long as the Service provides the immigration
judge with notice of its reconsideration.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant impact on a
substantial number of small entities. This rule will ensure that asylum
applications are processed in accordance with the Act, as amended by
IIRIRA, as well as with international instruments. Moreover, it will
have no effect on small entities, as that term is defined in 5 U.S.C.
601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibility among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
summary impact statement.
Executive Order 12988
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5, Display of control
numbers.
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, part 208 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
1. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
2. Section 208.2 is revised to read as follows:
Sec. 208.2 Jurisdiction
(a) Office of International Affairs. Except as provided in
paragraph (b) or (c) of this section, the Office of International
Affairs shall have initial jurisdiction over an asylum application
filed by an alien physically present in the United States or seeking
admission at a port-of-entry. The Office of International Affairs shall
also have initial jurisdiction over credible fear determinations under
Sec. 208.30 and reasonable fear determinations under Sec. 208.31.
(b) Jurisdiction of Immigration Court in general. Immigration
judges shall have exclusive jurisdiction over asylum applications filed
by an alien who has been served a Form I-221, Order to Show Cause; Form
I-122, Notice to Applicant for Admission Detained for a Hearing before
an Immigration Judge; or Form I-862, Notice to Appear, after the
charging document has been filed with the Immigration Court.
Immigration judges shall also have jurisdiction over any asylum
applications filed prior to April 1, 1997, by alien crewmembers who
have remained in the United States longer than authorized, by
applicants for admission under the Visa Waiver Pilot Program, and by
aliens who have been admitted to the United States under the Visa
Waiver Pilot Program. Immigration judges shall also have the authority
to review reasonable fear determinations referred to the Immigration
Court under Sec. 208.31, and credible fear determinations referred to
the Immigration Court under Sec. 208.30.
(c) Certain aliens not entitled to proceedings under section 240 of
the Act.
(1) Asylum applications and withholding of removal applications
only. After Form I-863, Notice of Referral to Immigration Judge, has
been filed with the Immigration Court, an immigration judge shall have
exclusive jurisdiction over any asylum application filed on or after
April 1, 1997, by:
(i) An alien crewmember who:
(A) Is an applicant for a landing permit;
(B) Has been refused permission to land under section 252 of the
Act; or
(C) On or after April 1, 1997, was granted permission to land under
section 252 of the Act, regardless of whether the alien has remained in
the United States longer than authorized;
(ii) An alien stowaway who has been found to have a credible fear
of persecution or torture pursuant to the procedures set forth in
subpart B of this part;
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver Pilot Program under section 217 of the Act;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Pilot Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status;
(v) An alien who has been ordered removed under Sec. 235(c) of the
Act, as described in Sec. 235.8(a) of this chapter (applicable only in
the event that the alien is referred for proceedings under this
paragraph by the Regional Director pursuant to section 235.8(b)(2)(ii)
of this chapter); or
(vi) An alien who is an applicant for admission, or has been
admitted, as an alien classified under section 101(a)(15)(S) of the Act
(applicable only in the event that the alien is referred for
proceedings under this paragraph by the district director).
[[Page 76131]]
(2) Withholding of removal applications only. After Form I-863,
Notice of Referral to Immigration Judge, has been filed with the
Immigration Court, an immigration judge shall have exclusive
jurisdiction over any application for withholding of removal filed by:
(i) An alien who is the subject of a reinstated removal order
pursuant to section 241(a)(5) of the Act; or
(ii) An alien who has been issued an administrative removal order
pursuant to section 238 of the Act as an alien convicted of committing
an aggravated felony.
(3) Rules of procedure.
(i) General. Except as provided in this section, proceedings
falling under the jurisdiction of the immigration judge pursuant to
paragraph (c)(1) or (c)(2) of this section shall be conducted in
accordance with the same rules of procedure as proceedings conducted
under 8 CFR part 240, subpart A. The scope of review in proceedings
conducted pursuant to paragraph (c)(1) of this section shall be limited
to a determination of whether the alien is eligible for asylum or
withholding or deferral of removal, and whether asylum shall be granted
in the exercise of discretion. The scope of review in proceedings
conducted pursuant to paragraph (c)(2) of this section shall be limited
to a determination of whether the alien is eligible for withholding or
deferral of removal. During such proceedings, all parties are
prohibited from raising or considering any other issues, including but
not limited to issues of admissibility, deportability, eligibility for
waivers, and eligibility for any other form of relief.
(ii) Notice of hearing procedures and in-absentia decisions. The
alien will be provided with notice of the time and place of the
proceeding. The request for asylum and withholding of removal submitted
by an alien who fails to appear for the hearing shall be denied. The
denial of asylum and withholding of removal for failure to appear may
be reopened only upon a motion filed with the immigration judge with
jurisdiction over the case. Only one motion to reopen may be filed, and
it must be filed within 90 days, unless the alien establishes that he
or she did not receive notice of the hearing date or was in Federal or
State custody on the date directed to appear. The motion must include
documentary evidence, which demonstrates that:
(A) The alien did not receive the notice;
(B) The alien was in Federal or State custody and the failure to
appear was through no fault of the alien; or
(C) ``Exceptional circumstances,'' as defined in section 240(e)(1)
of the Act, caused the failure to appear.
(iii) Relief. The filing of a motion to reopen shall not stay
removal of the alien unless the immigration judge issues an order
granting a stay pending disposition of the motion. An alien who fails
to appear for a proceeding under this section shall not be eligible for
relief under section 240A, 240B, 245, 248, or 249 of the Act for a
period of 10 years after the date of the denial, unless the applicant
can show exceptional circumstances resulted in his or her failure to
appear.
3. Section 208.3 is amended by:
a. Revising paragraph (a);
b. Revising paragraph (c)(4); and
c. Revising paragraph (c)(5), to read as follows:
Sec. 208.3 Form of application.
(a) An asylum applicant must file Form I-589, Application for
Asylum and for Withholding of Removal, together with any additional
supporting evidence in accordance with the instructions on the form.
The applicant's spouse and children shall be listed on the application
and may be included in the request for asylum if they are in the United
States. One additional copy of the principal applicant's Form I-589
must be submitted for each dependent included in the principal's
application.
* * * * *
(c) * * *
(4) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to
civil or criminal penalties under section 274C of the Act; and
(5) Knowingly filing a frivolous application on or after April 1,
1997, so long as the applicant has received the notice required by
section 208(d)(4) of the Act, shall render the applicant permanently
ineligible for any benefits under the Act pursuant to Sec. 208.20.
4. Section 208.4 is amended by:
a. Revising paragraph (a);
b. Revising paragraph (b)(2);
c. Revising paragraph (b)(3); and
d. Revising paragraph (b)(5), to read as follows:
Sec. 208.4 Filing the application.
* * * * *
(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits
certain aliens from filing for asylum on or after April 1, 1997, unless
the alien can demonstrate to the satisfaction of the Attorney General
that one of the exceptions in section 208(a)(2)(D) of the Act applies.
Such prohibition applies only to asylum applications under section 208
of the Act and not to applications for withholding of removal under
Sec. 208.16. If an applicant files an asylum application and it appears
that one or more of the prohibitions contained in section 208(a)(2) of
the Act apply, an asylum officer, in an interview, or an immigration
judge, in a hearing, shall review the application and give the
applicant the opportunity to present any relevant and useful
information bearing on any prohibitions on filing to determine if the
application should be rejected. For the purpose of making
determinations under section 208(a)(2) of the Act, the following rules
shall apply:
(1) Authority. Only an asylum officer, an immigration judge, or the
Board of Immigration Appeals is authorized to make determinations
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of
the Act.
(2) One-year filing deadline.
(i) For purposes of section 208(a)(2)(B) of the Act, an applicant
has the burden of proving:
(A) By clear and convincing evidence that the application has been
filed within 1 year of the date of the alien's arrival in the United
States, or
(B) To the satisfaction of the asylum officer, the immigration
judge, or the Board that he or she qualifies for an exception to the 1-
year deadline.
(ii) The 1-year period shall be calculated from the date of the
alien's last arrival in the United States or April 1, 1997, whichever
is later. When the last day of the period so computed falls on a
Saturday, Sunday, or legal holiday, the period shall run until the end
of the next day that is not a Saturday, Sunday, or legal holiday. For
the purpose of making determinations under section 208(a)(2)(B) of the
Act only, an application is considered to have been filed on the date
it is received by the Service, pursuant to Sec. 103.2(a)(7) of this
chapter. In a case in which the application has not been received by
the Service within 1 year from the applicant's date of entry into the
United States, but the applicant provides clear and convincing
documentary evidence of mailing the application within the 1-year
period, the mailing date shall be considered the filing date. For cases
before the Immigration Court in accordance with Sec. 3.13 of this
chapter, the application is considered to have been filed on the date
it is received by the Immigration Court. For cases before the Board of
Immigration Appeals, the application is considered to have been
[[Page 76132]]
filed on the date it is received by the Board. In the case of an
application that appears to have been filed more than a year after the
applicant arrived in the United States, the asylum officer, the
immigration judge, or the Board will determine whether the applicant
qualifies for an exception to the deadline.
(3) Prior denial of application. For purposes of section
208(a)(2)(C) of the Act, an asylum application has not been denied
unless denied by an immigration judge or the Board of Immigration
Appeals.
(4) Changed circumstances.
(i) The term ``changed circumstances'' in section 208(a)(2)(D) of
the Act shall refer to circumstances materially affecting the
applicant's eligibility for asylum. They may include, but are not
limited to:
(A) Changes in conditions in the applicant's country of nationality
or, if the applicant is stateless, country of last habitual residence;
(B) Changes in the applicant's circumstances that materially affect
the applicant's eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside the
country of feared persecution that place the applicant at risk; or
(C) In the case of an alien who had previously been included as a
dependent in another alien's pending asylum application, the loss of
the spousal or parent-child relationship to the principal applicant
through marriage, divorce, death, or attainment of age 21.
(ii) The applicant shall file an asylum application within a
reasonable period given those ``changed circumstances.'' If the
applicant can establish that he or she did not become aware of the
changed circumstances until after they occurred, such delayed awareness
shall be taken into account in determining what constitutes a
``reasonable period.''
(5) The term ``extraordinary circumstances'' in section
208(a)(2)(D) of the Act shall refer to events or factors directly
related to the failure to meet the 1-year deadline. Such circumstances
may excuse the failure to file within the 1-year period as long as the
alien filed the application within a reasonable period given those
circumstances. The burden of proof is on the applicant to establish to
the satisfaction of the asylum officer, the immigration judge, or the
Board of Immigration Appeals that the circumstances were not
intentionally created by the alien through his or her own action or
inaction, that those circumstances were directly related to the alien's
failure to file the application within the 1-year period, and that the
delay was reasonable under the circumstances. Those circumstances may
include but are not limited to:
(i) Serious illness or mental or physical disability, including any
effects of persecution or violent harm suffered in the past, during the
1-year period after arrival;
(ii) Legal disability (e.g., the applicant was an unaccompanied
minor or suffered from a mental impairment) during the 1-year period
after arrival;
(iii) Ineffective assistance of counsel, provided that:
(A) The alien files an affidavit setting forth in detail the
agreement that was entered into with counsel with respect to the
actions to be taken and what representations counsel did or did not
make to the respondent in this regard;
(B) The counsel whose integrity or competence is being impugned has
been informed of the allegations leveled against him or her and given
an opportunity to respond; and
(C) The alien indicates whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of
counsel's ethical or legal responsibilities, and if not, why not;
(iv) The applicant maintained Temporary Protected Status, lawful
immigrant or nonimmigrant status, or was given parole, until a
reasonable period before the filing of the asylum application;
(v) The applicant filed an asylum application prior to the
expiration of the 1-year deadline, but that application was rejected by
the Service as not properly filed, was returned to the applicant for
corrections, and was refiled within a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the applicant's
legal representative or a member of the applicant's immediate family.
(b) * * *
(2) With the asylum office. An asylum application shall be filed
directly with the asylum office having jurisdiction over the matter in
the case of an alien who:
(i) Has received the express consent of the asylum office director
or the Director of Asylum to do so, or
(ii) Previously was included in a spouse's or parent's pending
application but is no longer eligible to be included as a derivative.
In such cases, the derivative should include a cover letter referencing
the previous application and explaining that he or she is now
independently filing for asylum.
(3) With the Immigration Court. Asylum applications shall be filed
directly with the Immigration Court having jurisdiction over the case
in the following circumstances:
(i) During exclusion, deportation, or removal proceedings, with the
Immigration Court having jurisdiction over the underlying proceeding.
(ii) After completion of exclusion, deportation, or removal
proceedings, and in conjunction with a motion to reopen pursuant to 8
CFR part 3 where applicable, with the Immigration Court having
jurisdiction over the prior proceeding. Any such motion must reasonably
explain the failure to request asylum prior to the completion of the
proceedings.
(iii) In asylum proceedings pursuant to Sec. 208.2(c)(1) and after
the Form I-863, Notice of Referral to Immigration Judge, has been
served on the alien and filed with the Immigration Court having
jurisdiction over the case.
(4) * * *
(5) With the district director. In the case of any alien described
in Sec. 208.2(c)(1) and prior to the service on the alien of Form I-
863, any asylum application shall be submitted to the district director
having jurisdiction pursuant to 8 CFR part 103. If the district
director elects to issue the Form I-863, the district director shall
forward such asylum application to the appropriate Immigration Court
with the Form I-863 being filed with that Immigration Court.
* * * * *
5. Section 208.5 is amended by:
a. Revising the first sentence in paragraph (a);
b. Adding a new second sentence in paragraph (a); and
c. Revising paragraph (b)(1)(ii), to read as follows:
Sec. 208.5 Special duties toward aliens in custody of the Service.
(a) General. When an alien in the custody of the Service requests
asylum or withholding of removal, or expresses a fear of persecution or
harm upon return to his or her country of origin or to agents thereof,
the Service shall make available the appropriate application forms and
shall provide the applicant with the information required by section
208(d)(4) of the Act, except in the case of an alien who is in custody
pending a credible fear determination under Sec. 208.30 or a reasonable
fear determination pursuant to Sec. 208.31. Although the Service does
not have a duty in the case of an alien who is in custody pending a
credible fear or reasonable fear determination under either Sec. 208.30
or Sec. 208.31, the Service
[[Page 76133]]
may provide the appropriate forms, upon request. * * *
(b) * * *
(1) * * *
(ii) An alien crewmember shall be provided the appropriate
application forms and information required by section 208(d)(4) of the
Act and may then have 10 days within which to submit an asylum
application to the district director having jurisdiction over the port-
of-entry. The district director may extend the 10-day filing period for
good cause. Once the application has been filed, the district director,
pursuant to Sec. 208.4(b), shall serve Form I-863 on the alien and
immediately forward any such application to the appropriate Immigration
Court with a copy of the Form I-863 being filed with that court.
* * * * *
6. Section 208.6 is revised to read as follows:
Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any asylum
application, records pertaining to any credible fear determination
conducted pursuant to Sec. 208.30, and records pertaining to any
reasonable fear determination conducted pursuant to Sec. 208.31, shall
not be disclosed without the written consent of the applicant, except
as permitted by this section or at the discretion of the Attorney
General.
(b) The confidentiality of other records kept by the Service and
the Executive Office for Immigration Review that indicate that a
specific alien has applied for asylum, received a credible fear or
reasonable fear interview, or received a credible fear or reasonable
fear review shall also be protected from disclosure. The Service will
coordinate with the Department of State to ensure that the
confidentiality of those records is maintained if they are transmitted
to Department of State offices in other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a
need to examine information in connection with:
(i) The adjudication of asylum applications;
(ii) The consideration of a request for a credible fear or
reasonable fear interview, or a credible fear or reasonable fear
review;
(iii) The defense of any legal action arising from the adjudication
of, or failure to adjudicate, the asylum application, or from a
credible fear determination or reasonable fear determination under
Sec. 208.30 or Sec. 208.31;
(iv) The defense of any legal action of which the asylum
application, credible fear determination, or reasonable fear
determination is a part; or
(v) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, State, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of, or failure to adjudicate, the
asylum application, or from a credible fear or reasonable fear
determination under Sec. 208.30 or Sec. 208.31; or
(ii) Arising from the proceedings of which the asylum application,
credible fear determination, or reasonable fear determination is a
part.
Sec. 208.9 [Amended]
7. In Sec. 208.9, paragraph (d) is amended by revising the
reference to ``Sec. 208.14(b)'' to read ``Sec. 208.14(c).''
8. Section 208.12 is amended by revising paragraph (b) to read as
follows:
Sec. 208.12 Reliance on information compiled by other sources.
* * * * *
(b) Nothing in this part shall be construed to entitle the
applicant to conduct discovery directed toward the records, officers,
agents, or employees of the Service, the Department of Justice, or the
Department of State. Persons may continue to seek documents available
through a Freedom of Information Act (FOIA) request pursuant to 8 CFR
part 103.
9. Section 208.13 is amended by:
a. Revising the heading of paragraph (b);
b. Revising paragraph (b)(1);
c. Revising paragraph (b)(2);
d. Adding new paragraph (b)(3);
e. Adding a new paragraph (c)(2)(i)(F); and
f. Removing paragraph (d), to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(b) Eligibility. * * *
(1) Past persecution. An applicant shall be found to be a refugee
on the basis of past persecution if the applicant can establish that he
or she has suffered persecution in the past in the applicant's country
of nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion, and is unable or
unwilling to return to, or avail himself or herself of the protection
of, that country owing to such persecution. An applicant who has been
found to have established such past persecution shall also be presumed
to have a well-founded fear of persecution on the basis of the original
claim. That presumption may be rebutted if an asylum officer or
immigration judge makes one of the findings described in paragraph
(b)(1)(i) of this section. If the applicant's fear of future
persecution is unrelated to the past persecution, the applicant bears
the burden of establishing that the fear is well-founded.
(i) Discretionary referral or denial. Except as provided in
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the
exercise of his or her discretion, refer or deny, or an immigration
judge, in the exercise of his or her discretion, shall deny the asylum
application of an alien found to be a refugee on the basis of past
persecution if any of the following is found by a preponderance of the
evidence:
(A) There has been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of persecution in the
applicant's country of nationality or, if stateless, in the applicant's
country of last habitual residence, on account of race, religion,
nationality, membership in a particular social group, or political
opinion; or
(B) The applicant could avoid future persecution by relocating to
another part of the applicant's country of nationality or, if
stateless, another part of the applicant's country of last habitual
residence, and under all the circumstances, it would be reasonable to
expect the applicant to do so.
(ii) Burden of proof. In cases in which an applicant has
demonstrated past persecution under paragraph (b)(1) of this section,
the Service shall bear the burden of establishing by a preponderance of
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this
section.
(iii) Grant in the absence of well-founded fear of persecution. An
applicant described in paragraph (b)(1)(i) of this section who is not
barred from a grant of asylum under paragraph (c) of this section, may
be granted asylum, in the exercise of the decision-maker's discretion,
if:
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the
severity of the past persecution; or
(B) The applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal
to that country.
(2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
[[Page 76134]]
(A) The applicant has a fear of persecution in his or her country
of nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution
if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself
or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to another part
of the applicant's country of nationality or, if stateless, another
part of the applicant's country of last habitual residence, if under
all the circumstances it would be reasonable to expect the applicant to
do so.
(iii) In evaluating whether the applicant has sustained the burden
of proving that he or she has a well-founded fear of persecution, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that there is a reasonable possibility he or she would
be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice
in his or her country of nationality or, if stateless, in his or her
country of last habitual residence, of persecution of a group of
persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or
political opinion; and
(B) The applicant establishes his or her own inclusion in, and
identification with, such group of persons such that his or her fear of
persecution upon return is reasonable.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of
this section, adjudicators should consider, but are not limited to
considering, whether the applicant would face other serious harm in the
place of suggested relocation; any ongoing civil strife within the
country; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as
age, gender, health, and social and familial ties. Those factors may,
or may not, be relevant, depending on all the circumstances of the
case, and are not necessarily determinative of whether it would be
reasonable for the applicant to relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that
it would not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for
the applicant to relocate.
* * * * *
(c) * * *
(2) * * *
(i) * * *
(F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III)
of the Act as it existed prior to April 1, 1997, and as amended by the
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless
it is determined that there are no reasonable grounds to believe that
the individual is a danger to the security of the United States.
* * * * *
10. Section 208.14 is amended by:
a. Revising paragraph (b);
b. Redesignating paragraphs (c)-(f) as paragraphs (d)-(g);
c. Adding a new paragraph (c);
d. Revising newly redesignated paragraph (e); and
e. Adding a heading to new redesignated paragraph (g), to read as
follows:
Sec. 208.14 Approval, denial, referral, or dismissal of application.
* * * * *
(b) Approval by an asylum officer. In any case within the
jurisdiction of the Office of International Affairs, unless otherwise
prohibited in Sec. 208.13(c), an asylum officer may grant, in the
exercise of his or her discretion, asylum to an applicant who qualifies
as a refugee under section 101(a)(42) of the Act, and whose identity
has been checked pursuant to section 208(d)(5)(A)(i) of the Act.
(c) Denial, referral, or dismissal by an asylum officer. If the
asylum officer does not grant asylum to an applicant after an interview
conducted in accordance with Sec. 208.9, or if, as provided in
Sec. 208.10, the applicant is deemed to have waived his or her right to
an interview or an adjudication by an asylum officer, the asylum
officer shall deny, refer, or dismiss the application, as follows:
(1) Inadmissible or deportable aliens. Except as provided in
paragraph (c)(4) of this section, in the case of an applicant who
appears to be inadmissible or deportable under section 212(a) or 237(a)
of the Act, the asylum officer shall refer the application to an
immigration judge, together with the appropriate charging document, for
adjudication in removal proceedings (or, where charging documents may
not be issued, shall dismiss the application).
(2) Alien in valid status. In the case of an applicant who is
maintaining valid immigrant, nonimmigrant, or Temporary Protected
Status at the time the application is decided, the asylum officer shall
deny the application for asylum.
(3) Alien with valid parole. If an applicant has been paroled into
the United States and the parole has not expired or been terminated by
the Service, the asylum officer shall deny the application for asylum.
(4) Alien paroled into the United States whose parole has expired
or is terminated.
(i) Alien paroled prior to April 1, 1997, or with advance
authorization for parole. In the case of an applicant who was paroled
into the United States prior to April 1, 1997, or who, prior to
departure from the United States, had received an advance authorization
for parole, the asylum officer shall refer the application, together
with the appropriate charging documents, to an immigration judge for
adjudication in removal proceedings if the parole has expired, the
Service has terminated parole, or the Service is terminating parole
through issuance of the charging documents, pursuant to
Sec. 212.5(d)(2)(i) of this chapter.
(ii) Alien paroled on or after April 1, 1997, without advance
authorization for parole. In the case of an applicant who is an
arriving alien or is otherwise subject to removal under Sec. 235.3(b)
of this chapter, and was paroled into the United States on or after
April 1, 1997, without advance authorization for parole prior to
departure from the United States, the asylum officer will take the
following actions, if the parole has expired or been terminated:
(A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the
Act. If the applicant appears inadmissible to the United States under
section 212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer
does not intend to lodge any additional charges of inadmissibility, the
asylum officer shall proceed in accordance with Sec. 235.3(b) of this
chapter. If such applicant is found to have a credible fear of
persecution or torture based on information elicited from the asylum
interview, an asylum officer may refer the applicant directly to an
immigration judge in removal proceedings under section 240 of the Act,
without conducting a separate
[[Page 76135]]
credible fear interview pursuant to Sec. 208.30. If such applicant is
not found to have a credible fear based on information elicited at the
asylum interview, an asylum officer will conduct a credible fear
interview and the applicant will be subject to the credible fear
process specified at Sec. 208.30(b).
(B) Inadmissible on other grounds. In the case of an applicant who
was paroled into the United States on or after April 1, 1997, and will
be charged as inadmissible to the United States under provisions of the
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7),
the asylum officer shall refer the application to an immigration judge
for adjudication in removal proceedings.
* * * * *
(e) Duration. If the applicant is granted asylum, the grant will be
effective for an indefinite period, subject to termination as provided
in Sec. 208.24.
* * * * *
(g) Applicants granted lawful permanent residence status. * * *
11. Section 208.15 is revised to read as follows:
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he or she entered into another country with, or
while in that country received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he or
she establishes:
(a) That his or her entry into that country was a necessary
consequence of his or her flight from persecution, that he or she
remained in that country only as long as was necessary to arrange
onward travel, and that he or she did not establish significant ties in
that country; or
(b) That the conditions of his or her residence in that country
were so substantially and consciously restricted by the authority of
the country of refuge that he or she was not in fact resettled. In
making his or her determination, the asylum officer or immigration
judge shall consider the conditions under which other residents of the
country live; the type of housing, whether permanent or temporary, made
available to the refugee; the types and extent of employment available
to the refugee; and the extent to which the refugee received permission
to hold property and to enjoy other rights and privileges, such as
travel documentation that includes a right of entry or reentry,
education, public relief, or naturalization, ordinarily available to
others resident in the country.
12. Section 208.16 is amended by
a. Revising paragraph (b)(1);
b. Revising paragraph (b)(2);
c. Revising paragraph (b)(3);
The revisions read as follows:
Sec. 208.16 Withholding of removal under section 241(b)(3) of the Act
and withholding of removal under the Convention Against Torture.
* * * * *
(b) * * *
(1) Past threat to life or freedom. (i) If the applicant is
determined to have suffered past persecution in the proposed country of
removal on account of race, religion, nationality, membership in a
particular social group, or political opinion, it shall be presumed
that the applicant's life or freedom would be threatened in the future
in the country of removal on the basis of the original claim. This
presumption may be rebutted if an asylum officer or immigration judge
finds by a preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant's life or freedom would not be threatened on account of
any of the five grounds mentioned in this paragraph upon the
applicant's removal to that country; or
(B) The applicant could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so.
(ii) In cases in which the applicant has established past
persecution, the Service shall bear the burden of establishing by a
preponderance of the evidence the requirements of paragraphs
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
(iii) If the applicant's fear of future threat to life or freedom
is unrelated to the past persecution, the applicant bears the burden of
establishing that it is more likely than not that he or she would
suffer such harm.
(2) Future threat to life or freedom. An applicant who has not
suffered past persecution may demonstrate that his or her life or
freedom would be threatened in the future in a country if he or she can
establish that it is more likely than not that he or she would be
persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon removal to that
country. Such an applicant cannot demonstrate that his or her life or
freedom would be threatened if the asylum officer or immigration judge
finds that the applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so. In evaluating whether it is more likely
than not that the applicant's life or freedom would be threatened in a
particular country on account of race, religion, nationality,
membership in a particular social group, or political opinion, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that he or she would be singled out individually for
such persecution if:
(i) The applicant establishes that in that country there is a
pattern or practice of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon
return to that country.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (b)(2) of this section,
adjudicators should consider, among other things, whether the applicant
would face other serious harm in the place of suggested relocation; any
ongoing civil strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social and
familial ties. These factors may or may not be relevant, depending on
all the circumstances of the case, and are not necessarily
determinative of whether it would be reasonable for the applicant to
relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that
it would not be reasonable for him or her to relocate, unless the
persecutor is a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that under all the circumstances it would be reasonable for
the applicant to relocate.
* * * * *
[[Page 76136]]
Secs. 208.19 through 208.23 [Redesignated as Secs. 208.20 through
208.24, respectively].
13. Sections 208.19 through 208.23 are redesignated as Secs. 208.20
through 208.24, respectively.
14. Section 208.19 is added to read as follows:
Sec. 208.19 Decisions.
The decision of an asylum officer to grant or to deny asylum or to
refer an asylum application, in accordance with Sec. 208.14(b) or (c),
shall be communicated in writing to the applicant. Pursuant to
Sec. 208.9(d), an applicant must appear in person to receive and to
acknowledge receipt of the decision to grant or deny asylum, or to
refer an asylum application unless, in the discretion of the asylum
office director, service by mail is appropriate. A letter communicating
denial of asylum or referral of the application shall state the basis
for denial or referral and include an assessment of the applicant's
credibility.
15. Newly redesignated Sec. 208.21 is amended by revising paragraph
(a) to read as follows:
Sec. 208.21 Admission of the asylee's spouse and children.
(a) Eligibility. In accordance with section 208(b)(3) of the Act, a
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C.
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also
may be granted asylum if accompanying, or following to join, the
principal alien who was granted asylum, unless it is determined that
the spouse or child is ineligible for asylum under section
208(b)(2)(A)(i), (ii), (iii), (iv) or (v) of the Act for applications
filed on or after April 1, 1997, or under Sec. 208.13(c)(2)(i)(A), (C),
(D), (E), or (F) for applications filed before April 1, 1997.
* * * * *
16. Newly redesignated Sec. 208.22 is revised to read as follows:
Sec. 208.22 Effect on exclusion, deportation, and removal proceedings.
An alien who has been granted asylum may not be deported or removed
unless his or her asylum status is terminated pursuant to Sec. 208.24.
An alien in exclusion, deportation, or removal proceedings who is
granted withholding of removal or deportation, or deferral of removal,
may not be deported or removed to the country to which his or her
deportation or removal is ordered withheld or deferred unless the
withholding order is terminated pursuant to Sec. 208.24 or deferral is
terminated pursuant to Sec. 208.17(d) or (e).
17. Newly redesignated Sec. 208.24 is amended by:
a. Revising paragraph (b)(1);
b. Redesignating paragraphs (e) and (f) as paragraphs (f) and (g),
respectively;
c. Adding a new paragraph (e); and
d. Revising newly redesignated paragraphs (f) and (g), to read as
follows:
Sec. 208.24 Termination of asylum or withholding of removal or
deportation.
* * * * *
(b) * * *
(1) The alien is no longer entitled to withholding of deportation
or removal because, owing to a fundamental change in circumstances
relating to the original claim, the alien's life or freedom no longer
would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion in the
country from which deportation or removal was withheld.
* * * * *
(e) Removal proceedings. When an alien's asylum status or
withholding of removal or deportation is terminated under this section,
the Service shall initiate removal proceedings, as appropriate, if the
alien is not already in exclusion, deportation, or removal proceedings.
Removal proceedings may take place in conjunction with a termination
hearing scheduled under Sec. 208.24(f).
(f) Termination of asylum, or withholding of deportation or
removal, by an immigration judge or the Board of Immigration Appeals.
An immigration judge or the Board of Immigration Appeals may reopen a
case pursuant to Sec. 3.2 or Sec. 3.23 of this chapter for the purpose
of terminating a grant of asylum, or a withholding of deportation or
removal. In such a reopened proceeding, the Service must establish, by
a preponderance of evidence, one or more of the grounds set forth in
paragraphs (a) or (b) of this section. In addition, an immigration
judge may terminate a grant of asylum, or a withholding of deportation
or removal, made under the jurisdiction of the Service at any time
after the alien has been provided a notice of intent to terminate by
the Service. Any termination under this paragraph may occur in
conjunction with an exclusion, deportation, or removal proceeding.
(g) Termination of asylum for arriving aliens. If the Service
determines that an applicant for admission who had previously been
granted asylum in the United States falls within conditions set forth
in Sec. 208.24 and is inadmissible, the Service shall issue a notice of
intent to terminate asylum and initiate removal proceedings under
section 240 of the Act. The alien shall present his or her response to
the intent to terminate during proceedings before the immigration
judge.
18. Section 208.30 is revised to read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction
to make credible fear determinations, and the Executive Office for
Immigration Review has exclusive jurisdiction to review such
determinations. Except as otherwise provided in this subpart,
paragraphs (b) through (g) of this section are the exclusive procedures
applicable to credible fear interviews, determinations, and reviews
under section 235(b)(1)(B) of the Act.
(b) Treatment of dependents. A spouse or child of an alien may be
included in that alien's credible fear evaluation and determination, if
such spouse or child:
(1) Arrived in the United States concurrently with the principal
alien; and
(2) Desires to be included in the principal alien's determination.
However, any alien may have his or her credible fear evaluation and
determination made separately, if he or she expresses such a desire.
(c) Authority. Asylum officers conducting credible fear interviews
shall have the authorities described in Sec. 208.9(c).
(d) Interview. The asylum officer, as defined in section
235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial
manner, separate and apart from the general public. The purpose of the
interview shall be to elicit all relevant and useful information
bearing on whether the applicant has a credible fear of persecution or
torture, and shall conduct the interview as follows:
(1) If the officer conducting the credible fear interview
determines that the alien is unable to participate effectively in the
interview because of illness, fatigue, or other impediments, the
officer may reschedule the interview.
(2) At the time of the interview, the asylum officer shall verify
that the alien has received Form M-444, Information about Credible Fear
Interview in Expedited Removal Cases. The officer shall also determine
that the alien has
[[Page 76137]]
an understanding of the credible fear determination process.
(3) The alien may be required to register his or her identity
electronically or through any other means designated by the Attorney
General.
(4) The alien may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, and may present
other evidence, if available. Such consultation shall be at no expense
to the Government and shall not unreasonably delay the process. Any
person or persons with whom the alien chooses to consult may be present
at the interview and may be permitted, in the discretion of the asylum
officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the
number of persons who may be present at the interview and on the length
of the statement.
(5) If the alien is unable to proceed effectively in English, and
if the asylum officer is unable to proceed competently in a language
chosen by the alien, the asylum officer shall arrange for the
assistance of an interpreter in conducting the interview. The
interpreter must be at least 18 years of age and may not be the
applicant's attorney or representative of record, a witness testifying
on the applicant's behalf, a representative or employee of the
applicant's country of nationality, or, if the applicant is stateless,
the applicant's country of last habitual residence.
(6) The asylum officer shall create a summary of the material facts
as stated by the applicant. At the conclusion of the interview, the
officer shall review the summary with the alien and provide the alien
with an opportunity to correct any errors therein.
(e) Determination. (1) The asylum officer shall create a written
record of his or her determination, including a summary of the material
facts as stated by the applicant, any additional facts relied on by the
officer, and the officer's determination of whether, in light of such
facts, the alien has established a credible fear of persecution or
torture.
(2) In determining whether the alien has a credible fear of
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a
credible fear of torture, the asylum officer or immigration judge shall
consider whether the alien's case presents novel or unique issues that
merit consideration in a full hearing before an immigration judge.
(3) If an alien is able to establish a credible fear of persecution
or torture but appears to be subject to one or more of the mandatory
bars to applying for, or being granted, asylum contained in section
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal
contained in section 241(b)(3)(B) of the Act, the Service shall
nonetheless place the alien in proceedings under section 240 of the Act
for full consideration of the alien's claim, if the alien is not a
stowaway. If the alien is a stowaway, the Service shall place the alien
in proceedings for consideration of the alien's claim pursuant to
Sec. 208.2(c)(3).
(4) An asylum officer's determination shall not become final until
reviewed by a supervisory asylum officer.
(f) Procedures for a positive credible fear finding. If an alien,
other than an alien stowaway, is found to have a credible fear of
persecution or torture, the asylum officer will so inform the alien and
issue a Form I-862, Notice to Appear, for full consideration of the
asylum and withholding of removal claim in proceedings under section
240 of the Act. If an alien stowaway is found to have a credible fear
of persecution or torture, the asylum officer will so inform the alien
and issue a Form I-863, Notice of Referral to Immigration Judge, for
full consideration of the asylum claim, or the withholding of removal
claim, in proceedings under Sec. 208.2(c). Parole of the alien may be
considered only in accordance with section 212(d)(5) of the Act and
Sec. 212.5 of this chapter.
(g) Procedures for a negative credible fear finding. (1) If an
alien is found not to have a credible fear of persecution or torture,
the asylum officer shall provide the alien with a written notice of
decision and inquire whether the alien wishes to have an immigration
judge review the negative decision, using Form I-869, Record of
Negative Credible Fear Finding and Request for Review by Immigration
Judge. The alien shall indicate whether he or she desires such review
on Form I-869. A refusal by the alien to make such indication shall be
considered a request for review.
(i) If the alien requests such review, or refuses to either request
or decline such review, the asylum officer shall arrange for detention
of the alien and serve him or her with a Form I-863, Notice of Referral
to Immigration Judge, for review of the credible fear determination in
accordance with paragraph (f)(2) of this section.
(ii) If the alien is not a stowaway and does not request a review
by an immigration judge, the officer shall order the alien removed and
issue a Form I-860, Notice and Order of Expedited Removal, after review
by a supervisory asylum officer.
(iii) If the alien is a stowaway and the alien does not request a
review by an immigration judge, the asylum officer shall refer the
alien to the district director for completion of removal proceedings in
accordance with section 235(a)(2) of the Act.
(2) Review by immigration judge of a negative credible fear
finding.
(i) The asylum officer's negative decision regarding credible fear
shall be subject to review by an immigration judge upon the applicant's
request, or upon the applicant's refusal either to request or to
decline the review after being given such opportunity, in accordance
with section 235(b)(1)(B)(iii)(III) of the Act.
(ii) The record of the negative credible fear determination,
including copies of the Form I-863, the asylum officer's notes, the
summary of the material facts, and other materials upon which the
determination was based shall be provided to the immigration judge with
the negative determination.
(iii) A credible fear hearing shall be closed to the public unless
the alien states for the record or submits a written statement that the
alien is waiving that requirement; in that event the hearing shall be
open to the public, subject to the immigration judge's discretion as
provided in Sec. 3.27.
(iv) Upon review of the asylum officer's negative credible fear
determination:
(A) If the immigration judge concurs with the determination of the
asylum officer that the alien does not have a credible fear of
persecution or torture, the case shall be returned to the Service for
removal of the alien. The immigration judge's decision is final and may
not be appealed. The Service, however, may reconsider a negative
credible fear finding that has been concurred upon by an immigration
judge after providing notice of its reconsideration to the immigration
judge.
(B) If the immigration judge finds that the alien, other than an
alien stowaway, possesses a credible fear of persecution or torture,
the immigration judge shall vacate the order of the asylum officer
issued on Form I-860 and the Service may commence removal proceedings
under section 240 of the Act, during which time the alien may file an
application for asylum and withholding of removal in accordance with
Sec. 208.4(b)(3)(i).
(C) If the immigration judge finds that an alien stowaway possesses
a credible fear of persecution or torture, the alien shall be allowed
to file an application for asylum and withholding of removal before the
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The
immigration judge shall decide the
[[Page 76138]]
application as provided in that section. Such decision may be appealed
by either the stowaway or the Service to the Board of Immigration
Appeals. If a denial of the application for asylum and for withholding
of removal becomes final, the alien shall be removed from the United
States in accordance with section 235(a)(2) of the Act. If an approval
of the application for asylum or for withholding of removal becomes
final, the Service shall terminate removal proceedings under section
235(a)(2) of the Act.
Dated: November 27, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-30601 Filed 12-5-00; 8:45 am]
BILLING CODE 4410-10-P