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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

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[Federal Register: December 6, 2000 (Volume 65, Number 235)]
[Rules and Regulations]               
[Page 76121-76138]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06de00-2]                         

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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


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