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[Federal Register: March 8, 2004 (Volume 69, Number 45)]
[Proposed Rules]               
[Page 10620-10627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr04-25]                         

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================



[[Page 10620]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 212

[CIS No. 2255-03]
RIN 1615-AA91

 
Implementation of the Agreement Between the Government of the 
United States of America and the Government of Canada Regarding Asylum 
Claims Made in Transit and at Land Border Ports-of-Entry

AGENCY: Department of Homeland Security.

ACTION: Proposed rule.

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

SUMMARY: On March 1, 2003, the Immigration and Naturalization Service 
transferred from the Department of Justice to the Department of 
Homeland Security (DHS), pursuant to the Homeland Security Act of 2002 
(Public Law 107-296). The responsibility for administering the asylum 
program was transferred to U.S. Citizenship and Immigration Services 
(``USCIS'') within DHS. The terms of a recently signed agreement 
between the United States and Canada bar certain categories of aliens 
arriving from Canada at land border ports-of-entry and in transit from 
Canada from applying for protection in the United States. This proposed 
rule would establish USCIS asylum officers' authority to make threshold 
determinations concerning applicability of the Agreement in the 
expedited removal context.

DATES: Written comments must be submitted on or before May 7, 2004.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Department of Homeland Security, 425 I 
Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling 
please reference CIS No. 2255-03 on your correspondence. You may also 
submit comments electronically to USCIS at rfs.regs@dhs.gov. When 
submitting comments electronically, you must include CIS No. 2255-03 in 
the subject box. Comments are available for public inspection at the 
above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Joanna Ruppel, Deputy Director, Asylum 
Division, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Ave., NW., Third Floor, Washington, 
DC 20536, telephone number (202) 305-2663.

SUPPLEMENTARY INFORMATION:

What Legal Authority Permits USCIS To Use a Safe Third Country 
Agreement as a Bar To Applying for Asylum?

    Section 208(a)(1) of the Immigration and Nationality Act (``Act'') 
permits any alien who is physically present in or who arrives at the 
United States to apply for asylum. However, section 208(a)(2)(A) of the 
Act specifically states that paragraph (1) shall not apply where, 
``pursuant to a bilateral or multilateral agreement, the alien may be 
removed to a country where the alien's life or freedom would not be 
threatened on account of race, religion, nationality, membership in a 
particular social group, or political opinion, and where the alien 
would have access to a full and fair procedure for determining a claim 
to asylum or equivalent temporary protection, unless the Attorney 
General [now deemed to be the Secretary of Homeland Security under the 
Homeland Security Act] finds that it is in the public interest for the 
alien to receive asylum in the United States.''
    On December 5th, 2002, the governments of the United States and 
Canada signed the Agreement Between the Government of the United States 
and the Government of Canada For Cooperation in the Examination of 
Refugee Status Claims from Nationals of Third Countries (``Safe Third 
Country Agreement'' or ``Agreement''). The Agreement will take effect 
when the United States has promulgated implementing regulations and 
Canada has completed its own domestic procedures necessary to bring the 
Agreement into force. This Agreement will be implemented by USCIS 
asylum officer determinations.
    The Agreement allocates responsibility between the United States 
and Canada whereby one country or the other (but not both) will assume 
responsibility for processing the claims of certain asylum seekers who 
are traveling from Canada into the United States or from the United 
States into Canada. The Agreement provides for a threshold 
determination to be made concerning which country will consider the 
merits of an alien's protection claim, enhancing the two nations' 
ability to manage, in an orderly fashion, asylum claims brought by 
persons crossing our common border. This Safe Third Country Agreement 
between the United States and Canada currently constitutes the only 
agreement, for purposes of section 208(a)(2)(A) of the Act, that would 
bar an individual in or arriving at the United States from applying for 
asylum.
    During the bilateral negotiations that have resulted in the Safe 
Third Country Agreement, the delegations of both countries acknowledged 
certain differences in their respective asylum systems. However, 
harmonization of asylum laws and procedures is not a prerequisite to 
entering into responsibility-sharing arrangements. The salient factor 
is whether the countries sharing responsibility for refugee protection 
have laws and mechanisms in place that adhere to their international 
obligations to protect refugees. The Executive Committee for the Office 
of the United Nations High Commissioner for Refugees (UNHCR) has 
concluded, ``Overall it is UNHCR's position that, while in principle 
each State Party to the 1951 Convention and 1967 Protocol has a 
responsibility to examine refugee claims made to it, ``burden-sharing'' 
arrangements allowing for readmission and determination of status 
elsewhere are reasonable, provided they always ensure protection of 
refugees and solutions to their problems.'' Background Note on the Safe 
Country Concept and Refugee Status (EC/SCP/68), July 26, 1991. While 
the asylum systems in Canada and the U.S. are not identical, both 
country's asylum systems meet and exceed international standards and 
obligations under the 1951 Convention relating to the Status of 
Refugees (1951 Refugee Convention) and the 1967 Protocol relating to 
the Status of Refugees (1967 Protocol), and the United Nations 
Convention Against Torture and Other Cruel, Inhuman, or Degrading 
Treatment or Punishment (Convention Against Torture).

[[Page 10621]]

What Are the Terms of the Safe Third Country Agreement Between the 
United States and Canada?

    The Agreement permits the United States to remove to Canada certain 
asylum seekers attempting to enter the United States from Canada at a 
land border port-of-entry and aliens who are being removed from Canada 
in transit through the United States. Similarly, it permits Canada to 
return to the United States certain asylum seekers attempting to enter 
Canada from the United States at a land border port-of-entry and 
certain aliens being removed from the United States through Canada. In 
either case, the Agreement provides (with certain exceptions) that the 
alien be returned to the ``country of last presence'' for consideration 
of his or her protection claims, including asylum, withholding of 
removal, and protection under the Convention Against Torture, under the 
laws of that country.
    For aliens arriving at a land border port-of-entry, the Agreement 
provides for a number of exceptions. These exceptions are based upon 
the principles underlying the U.S. position while negotiating the 
Agreement: (1) To the extent practicable, the Agreement should not act 
to separate families; (2) the Agreement must guarantee that persons 
subject to it would have their protection claims adjudicated in one of 
the two countries; and (3) it would be applied only in circumstances 
where it is indisputable that the alien arrived directly from the other 
country. These principles have been achieved by including a robust 
family unity exception that allows asylum seekers to join certain 
family members residing in the United States or Canada while they 
pursue their protection claims; by clearly stipulating that the alien 
must have his or her claim adjudicated in either Canada or the United 
States; and by limiting the application of the Agreement to situations 
where it is clear that the alien arrived directly from the other 
country; e.g., at land border ports-of-entry or in-transit while being 
removed from Canada.
    The Agreement's family unity exceptions are particularly generous. 
The range of family members who may qualify as ``anchor'' relatives due 
to their presence in the United States is far broader than those 
recognized under other provisions of immigration law. The list of 
eligible family members includes spouses, sons, daughters, parents, 
legal guardians, siblings, grandparents, grandchildren, aunts, uncles, 
nieces, and nephews. For purposes of the Agreement, a ``legal 
guardian'' will be construed as someone who is currently vested with 
legal custody of the asylum seeker or with the authority to act on 
behalf of the asylum seeker, provided that the asylum seeker is both 
unmarried and less than 18 years of age. USCIS will provide field 
guidance to asylum officers to standardize the approach used in 
construing other family member relationships relevant to the Agreement 
but not defined in the Act. Finally, these family members may qualify 
as anchor relatives even if they themselves do not possess permanent 
immigration status in the U.S. Aliens in valid immigrant or 
nonimmigrant status may qualify as anchor relatives, with the exception 
of aliens who maintain only nonimmigrant visitor status under section 
101(a)(15)(B) of the Act or based on admission under the Visa Waiver 
Program, who are precluded from serving as anchor relatives by the 
language of the Agreement.
    More specifically, an alien who arrives at a land border port-of-
entry is exempt from return under the Agreement if the alien:
    (1) Is a citizen of Canada or, not having a country of nationality, 
is a habitual resident of Canada;
    (2) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who has been granted asylum, refugee, or other lawful status in 
the United States, except visitor status;
    (3) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who is at least 18 years of age and has an asylum application 
pending in the United States;
    (4) Is unmarried, under 18 years of age, and does not have a parent 
or legal guardian in either Canada or the United States;
    (5) Is applying for admission at a United States land border port-
of-entry with a validly issued visa or other valid admission document, 
other than for transit, issued by the United States, or, being required 
to hold a visa to enter Canada, was not required to obtain a visa to 
enter the United States; or
    (6) Has been permitted, as an unreviewable exercise of discretion 
by DHS, to pursue a protection claim in the United States because it 
was determined that it is in the public interest to do so.
    The specific terms of the Safe Third Country Agreement are 
available on the USCIS Web site at http://www.uscis.gov.


How Does This Rule Propose To Implement the Safe Third Country 
Agreement?

    The rule proposes to revise Sec.  208.4 and add a new Sec.  
208.30(e)(6) to permit asylum officers to conduct a ``threshold 
screening interview'' in order to determine whether an alien is 
ineligible to apply for asylum under section 208(a)(2)(A) of the Act by 
operation of the Safe Third Country Agreement. New Sec.  
208.30(e)(6)(iii) would codify the exceptions to the Agreement. Under 
this rule, in any case where an asylum officer determines that the 
alien qualifies for an exception to the Agreement with Canada, the 
asylum officer will proceed immediately to a determination as to 
whether or not the alien has a credible fear of persecution or torture, 
as provided under existing law.
    In Sec.  208.30(e)(6)(i), this proposed rule also makes clear that, 
when an asylum officer determines that an alien is ineligible to pursue 
his or her protection claims in the United States based on the 
applicability of the Safe Third Country Agreement, the alien will be 
removed to Canada, the country of the alien's last presence, in order 
to pursue his or her claims there.
    The rule also proposes to incorporate the existing definitions of 
``credible fear of persecution'' and ``credible fear of torture'' in 
the new Sec. Sec.  208.30(e)(2) and (e)(3). The definition of credible 
fear of persecution, derived from section 235(b)(1)(B)(v) of the Act 
and existing policy that incorporates consideration of eligibility for 
withholding of removal, is ``a significant possibility, taking into 
account the credibility of the statements made by the alien in support 
of the alien's claim and such other facts as are known to the officer, 
the alien can establish eligibility for asylum under section 208 of the 
Act or for withholding of removal under section 241(b)(3) of the Act.'' 
The proposed rule incorporates the existing definition of credible fear 
of torture provided in the supplementary information to the interim 
rule implementing the United States' obligations under the Convention 
Against Torture published in the Federal Register at 64 FR 8484 on 
February 19, 1999. Under current procedures, as provided in the 
supplementary information to the interim rule, an alien is found to 
have a credible fear of torture if the alien shows that there is a 
significant possibility that he or she is eligible for withholding of 
removal or deferral of removal under the Convention Against Torture. 
The rule does not propose to

[[Page 10622]]

alter current procedures related to these existing definitions.
    Finally, this rule proposes to remove the provisions of 8 CFR 
208.30(g)(2) relating to the conduct of credible fear review by 
immigration judges. In view of the transfer of the responsibilities of 
the former INS to DHS on March 1, 2003, the Attorney General published 
a rule creating a new chapter V in 8 CFR, beginning with part 1001 and 
containing the regulations pertaining to the functions of the Executive 
Office for Immigration Review (EOIR), which remains under the authority 
of Attorney General. The Attorney General's rule was published in the 
Federal Register at 68 FR 9824 on February 28, 2003. Accordingly, this 
rule revises Sec.  208.30(g)(2) to remove the previous provisions and 
to substitute a new cross-reference to the current EOIR regulations 
which are now codified at 8 CFR 1208.30(g)(2).

Why Is USCIS Proposing To Amend the Regulations Governing Credible Fear 
Determinations?

    The Safe Third Country Agreement between the United States and 
Canada bars certain aliens from pursuing protection claims in the 
United States if they are either arriving from Canada at land border 
ports-of-entry or are being removed from Canada in transit through the 
United States. Instead, those aliens will be returned to Canada to have 
their protection claims adjudicated by Canada. In general, the 
Agreement will be applied to such aliens who are subject to expedited 
removal provisions under section 235(b) of the Act, which provides a 
specific removal mechanism for aliens who are inadmissible under 
sections 212(a)(6)(C) (fraud or willful misrepresentation) or 212(a)(7) 
(failure to have proper documents) of the Act. However, in light of the 
Safe Third Country Agreement's purpose in allowing asylum seekers 
access to only one of the signatory countries' protection systems, this 
rule proposes a modified approach to the expedited removal process in 
the form of a threshold asylum officer screening as to which country 
(Canada or the United States) will consider an alien's protection 
claims. Only after this threshold issue has been resolved in favor of 
allowing the alien to pursue an asylum claim in the United States will 
an asylum officer make a determination as to whether or not the alien 
has a credible fear of persecution or torture.
    Under section 235(b), aliens subject to expedited removal who seek 
asylum in the United States or otherwise express a fear of persecution 
or torture are referred to an asylum officer. During a ``credible fear 
interview,'' the asylum officer inquires as to the nature and basis of 
the alien's claims relating to past persecution and fear of future 
persecution or torture. The asylum officer then determines whether or 
not there is a significant possibility, taking into account the 
credibility of the statements made by the alien in support of the 
alien's claims and other facts known to the officer, that the alien 
could establish eligibility for protection under U.S. law. In the event 
that the asylum officer determines that the alien has not established a 
credible fear of persecution or torture, the alien may request review 
of that determination by an immigration judge.
    For aliens who are subject to the Agreement, however, the threshold 
question is whether the alien should be returned to Canada for Canadian 
authorities to consider the merits of the alien's claims, or whether 
the alien will instead be allowed to pursue his or her protection 
claims in the United States. Accordingly, this rule provides for a 
threshold screening interview by an asylum officer to determine whether 
an alien subject to the Agreement will be permitted to remain in the 
U.S. to pursue his or her protection claims, based on the alien's 
qualification for one of the Agreement's exceptions. It is only after 
this threshold screening interview (i.e., only after the asylum officer 
has decided that the alien is not going to be removed to Canada for an 
adjudication of the alien's claims) that the asylum officer would 
proceed to promptly consider the alien's claims for protection under 
United States law through the credible fear determination process. The 
asylum officer's notes regarding the threshold issues raised by the 
Agreement would then be included in the asylum officer's written record 
of the credible fear determination. In those instances where an asylum 
officer determines, after review by a supervisory asylum officer, that 
the alien has not provided reason to believe, by a preponderance of the 
evidence, that he or she qualifies for any of the Agreement's 
exceptions, then the asylum officer will advise the alien that he or 
she is being returned to Canada based on the terms of the Agreement so 
that the alien will be able to pursue his or her claims for asylum or 
protection under Canadian law.
    Given the narrowness of the factual issues relevant to the 
threshold screening determination that the Agreement and/or its 
exceptions are applicable to an alien, which can readily be considered 
and adjudicated by asylum officers, this rule does not provide for 
referral to immigration judges for further review of these threshold 
screening determinations. The narrow factual issues concerning the 
Agreement's applicability and exceptions (such as the presence of 
family members in the U.S. or the possession of validly issued visas) 
do not relate to whether an alien has a fear of persecution or torture, 
and can adequately be resolved by asylum officers. Thus, under this 
proposed rule, when an asylum officer makes and a supervisor reviews 
this threshold determination, there would be no further administrative 
review of that decision. Elsewhere in the Federal Register, the 
Department of Justice is publishing a proposed rule to specify the 
authority of the immigration judges with respect to issues arising 
under the Agreement.
    This method for implementing the Safe Third Country Agreement, 
which bars certain aliens from applying for asylum in the United 
States, is within the authority of the Secretary of DHS, under section 
208(a)(2)(A) of the Act and under section 208(d)(5)(B) of the Act, 
which provides authority to impose regulatory conditions or limitations 
on the consideration of an application for asylum not inconsistent with 
the Act. Section 208(a)(2)(A) of the Act makes an alien ineligible to 
apply for asylum in the United States if, pursuant to a bilateral 
agreement, the Secretary concludes that the alien ``would have access 
to a full and fair procedure for determining a claim to asylum or 
equivalent temporary protection'' in a safe third country. An alien who 
is covered by section 208(a)(2)(A) is thus not eligible to apply for 
asylum regardless of the statutory means by which he is ordered removed 
from the United States. By this rule, the Secretary is proposing, in a 
manner consistent with the Act, to delegate to asylum officers the 
authority to make the threshold determination whether an alien is 
ineligible to apply for asylum by operation of the Agreement with 
Canada.
    USCIS thus proposes to amend the regulations governing the credible 
fear determination in order to implement the threshold screening 
process described above for aliens subject to the Safe Third Country 
Agreement, prior to a credible fear determination. However, this rule 
preserves unchanged the existing credible fear process itself, 
including the availability of a credible fear review by an immigration 
judge, in every case where the asylum officer determines that an alien 
subject to the Agreement does satisfy any of the threshold 
jurisdictional exceptions, including a discretionary decision by

[[Page 10623]]

DHS to allow the alien to pursue an asylum claim as a matter in the 
public interest. If the asylum officer determines the alien is not 
barred by the Agreement from pursuing his or her protection claims in 
the U.S., the asylum officer will then proceed immediately to a 
credible fear determination on the merits of the alien's claims, and, 
if necessary, an immigration judge will conduct a review of this 
determination on the merits, as provided under existing law and 
regulations.

How Does This Rule or the Safe Third Country Agreement Affect 
Unaccompanied Minors?

    In order to understand how this rule affects unaccompanied minors, 
it is important to understand that the definition of an ``unaccompanied 
minor'' customarily used in determining appropriate immigration 
processes is different than the definition used in the Agreement for 
determining whether an exception to the Agreement applies. While 
``unaccompanied minor'' has not been formally defined in the Act or in 
regulations, for immigration processing purposes, an individual who is 
under age 18 and is not accompanied by an adult relative or guardian is 
considered an ``unaccompanied minor.'' This definition differs from the 
Agreement's language. Article 1(f) of the Agreement defines 
``unaccompanied minor'' as ``an unmarried refugee status claimant who 
has not yet reached his or her eighteenth birthday and does not have a 
parent or legal guardian in either Canada or the United States.'' This 
rule does not propose replacing the customary definition of 
``unaccompanied minor'' with the Agreement's definition for purposes of 
determining immigration issues unrelated to the Agreement. However, in 
applying the Agreement, this difference in definitions will result in 
finding that some individuals under age 18 who are not accompanied by 
an adult relative or legal guardian when they arrive at a land border 
port-of-entry will not qualify for the unaccompanied minor exception in 
the Agreement, because they have a parent or legal guardian in the 
United States or Canada.
    Since August of 1997, the Immigration and Naturalization Service's 
policy, now DHS's policy, has been to place unaccompanied minors into 
expedited removal proceedings only under limited circumstances. Under 
existing policy, an unaccompanied minor would be placed into expedited 
removal proceedings only if he or she (1) in the presence of a DHS 
immigration officer, engaged in a crime that would qualify as an 
aggravated felony if committed by an adult; (2) has been convicted or 
adjudicated delinquent of an aggravated felony in the United States or 
any other country, and a U.S. Customs and Border Protection (CBP) 
officer has confirmation of that order; or (3) has been formally 
removed, excluded, or deported previously from the United States. 
Existing guidelines permit granting a waiver, deferring the inspection, 
permitting a withdrawal of the application for admission, or using 
other discretionary means to process unaccompanied minors who seek 
admission to the United States, where appropriate. This rule does not 
propose to change that existing policy. The Safe Third Country 
Agreement will be applied in the expedited removal proceedings of 
unaccompanied minors only when such other processing of an 
unaccompanied minor seeking admission at a land border port-of-entry is 
not appropriate. When an unaccompanied minor arrives from Canada at a 
land border port-of-entry and seeks protection, he or she still will be 
processed according to existing guidelines, which often results in 
placing the minor into removal proceedings under section 240 of the 
Act. Where the minor is placed into removal proceedings under section 
240 of the Act, the Agreement, including its definition of 
``unaccompanied minor,'' will be applied by the immigration judge, as 
provided in the Department of Justice proposed rule published in the 
Federal Register.

What Type of Evidence Will Satisfy USCIS When Determining Whether an 
Individual Meets One of the Exceptions in the Agreement?

    As specified in the proposed rule at Sec.  208.30(e)(6)(ii) and 
pursuant to a Statement of Principles concerning the implementation of 
the Agreement, the alien bears the burden of proof to establish by a 
preponderance of the evidence that an exception applies, such that the 
alien falls outside the scope of the Agreement. Asylum officers will 
use all available evidence, including the individual's testimony, 
affidavits and other documentation, as well as available records and 
databases, to determine whether an exception to the Agreement applies 
in each individual's case. Credible testimony alone may be sufficient 
to establish that an exception applies, if there is a satisfactory 
explanation of why corroborative documentation is not reasonably 
available. DHS recognizes that computer systems and DHS records will 
not be sufficient to verify family relationships in all circumstances 
and that asylum seekers fleeing persecution often will not have 
documents establishing family relationships with them at the time they 
seek to enter the United States. Asylum officers receive extensive 
training in evaluating credibility of testimony when there is little or 
no documentation in support of that testimony. Asylum officers will 
document their findings that the Agreement or its exceptions are 
applicable to an alien, and in the case of any alien who qualifies for 
one of the Agreement's exceptions, will immediately proceed to make a 
credible fear determination, as described in sections 235(b)(1)(B)(ii) 
and (iii) of the Act.

How Does the Safe Third Country Agreement Address the Possibility That 
Individuals Will Be Removed Without Having Their Protection Claims 
Heard?

    An individual referred by either Canada or the United States to the 
other country under the terms of Article 4 cannot be removed to a third 
country until an adjudication of the individual's protection claims has 
been made. The Agreement also provides, in Article 3, that an 
individual returned to the country of last presence shall not be 
removed to another country pursuant to any other Safe Third Country 
Agreement or regulation.

How Does the Safe Third Country Agreement Affect People Who Are Being 
Removed From Canada or the United States and Then Seek Protection While 
Transiting Through the Other Country?

    Pursuant to Article 5(a) of the Agreement, if an alien is being 
removed from Canada through the United States and expresses a fear of 
persecution or torture, the alien will be returned to Canada for Canada 
to adjudicate his or her protection claims, in accordance with Canada's 
protection system. Generally, individuals being removed by Canada 
through the United States are pre-inspected in Canada and escorted by 
Canadian immigration officials to their onward destination. Individuals 
who make a protection claim during pre-inspection will not be allowed 
to transit through the United States. Individuals being removed by 
Canada in transit through the United States are considered arriving 
aliens in parole status, as described in section 212(d)(5) of the Act. 
If such an individual asserts a fear of persecution or torture to a 
U.S. immigration officer, while in transit through the United States, 
the individual's parole status will be terminated pursuant to Sec.  
212.5(e)(2)(i), and he or she generally will be placed in expedited 
removal proceedings, though there may be some rare instances

[[Page 10624]]

in which the individual will be placed in removal proceedings under 
section 240 of the Act. Transit aliens placed in expedited removal 
proceedings under this provision will be subject to the same asylum 
officer threshold screening process as aliens arriving at U.S.-Canada 
land border ports-of-entry. For those rare instances in which such a 
transit alien is placed in removal proceedings pursuant to section 240 
of the Act, the Agreement will be applied by the immigration judge as 
provided in the Department of Justice proposed rule, published in the 
Federal Register.
    The effect of the Agreement on an asylum seeker being removed from 
the United States through Canada depends on whether the United States 
already has considered any asylum, withholding, or Torture Convention 
claim(s). If the United States has considered but denied the alien's 
protection claims, the person will be permitted onward movement, in 
accordance with Article 5(c) of the Agreement. If the United States has 
not already adjudicated the alien's protection claims, the person will 
be returned to the United States for such an adjudication.

How Does the Agreement Affect Individuals Who Seek Withholding of 
Removal or Protection Under the Convention Against Torture?

    Article 33 of the 1951 Refugee Convention, as supplemented by the 
1967 Refugee Protocol, requires that signatory states not return 
persons to any country where their lives or freedom would be threatened 
on account of their race, religion, nationality, political opinion, or 
membership in a particular social group. The U.S. is a signatory to the 
1967 Protocol, and Canada is a signatory to both the 1951 Refugee 
Convention and the 1967 Protocol. The U.S. implements its obligations 
under the 1967 Protocol in section 241(b)(3) of the Act, which, as 
implemented, prohibits DHS from removing aliens to any country where it 
is more likely than not that their lives or freedom would be threatened 
on account of the grounds enumerated above. Nevertheless, DHS is not 
prevented from removing aliens to countries where their lives or 
freedom would not be threatened.
    Article 3 of the Convention Against Torture prohibits the return of 
persons to any country where there are substantial grounds for 
believing that they would be subject to torture. Like the United 
States, Canada is a signatory to the Convention Against Torture. The 
United States implements this obligation by granting withholding of 
removal or deferral of removal to a country where it is more likely 
than not that the applicant would be subject to torture.
    Article 3 of the Agreement provides that ``the Parties shall not 
return or remove a refugee status claimant referred by either Party 
under the terms of [the Agreement] to another country until an 
adjudication of the person's refugee status claim has been made.'' In 
Article 1, the Agreement defines a refugee status claim to include a 
request for protection under the 1951 Refugee Convention, 1967 
Protocol, or Convention Against Torture. Returning any alien to Canada 
pursuant to the terms of the Agreement for a consideration of the 
alien's protection claims, in the absence of any grounds for believing 
that the alien would be persecuted or tortured in Canada, is consistent 
with the United States' international protection obligations.

Does CBP Plan To Place Aliens Returned to the United States From Canada 
Under the Safe Third Country Agreement Into Expedited Removal 
Proceedings?

    No. For an alien to be subject to the expedited removal provisions, 
the alien must first meet the definition of arriving alien. The Board 
of Immigration Appeals has held that an alien who goes abroad but is 
returned to the United States after having been formally denied 
admission by the foreign country is not an applicant for admission, 
since, in contemplation of law, the alien did not leave the United 
States. Matter of T, 6 I&N Dec. 638 (1955). Those who entered the 
United States legally or illegally and are later denied admission by 
Canada are not arriving aliens and therefore not subject to expedited 
removal. Depending on their status, they may or may not be subject to 
removal proceedings before an immigration judge, pursuant to section 
240 of the Act, or removal pursuant to sections 241(a)(5) 
(reinstatement of a prior order) or 238(b) (administrative removal 
based on aggravated felony conviction) of the Act. For example, this 
return to the United States would not qualify as an ``arrival'' for 
purposes of determining whether an applicant has filed for asylum 
within one year of the date of his or her last arrival in the United 
States, as required under section 208(a)(2)(B) of the Act.

How Does This Proposed Rule Affect Individuals Who Enter the United 
States Through Canada and Who Then Apply for Asylum?

    The proposed rule does not affect any individuals who apply for 
asylum after entering the United States from Canada. The proposed rule 
is limited only to those individuals who are placed in expedited 
removal or removal proceedings upon arrival at U.S.-Canada land border 
ports-of-entry and to those who are aliens in transit through the 
United States subsequent to removal from Canada. Individuals who 
previously entered the United States, having come from Canada, and 
later apply for asylum affirmatively with USCIS or defensively in 
removal proceedings before an immigration judge are not arriving aliens 
and so will not be barred from applying for asylum by operation of the 
Agreement.

Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)) and by approving it, DHS 
preliminarily certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
affects individual aliens, as it relates to claims of asylum. It does 
not affect 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 one-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 804 of the 
Small Business Regulatory Enforcement Act of 1996. 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

    The Department of Homeland Security has determined that this rule 
is a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review, and, accordingly, this 
rule has been submitted to the Office of Management and Budget for 
review. In particular, the

[[Page 10625]]

Department has assessed both the costs and benefits of this rule as 
required by Executive Order 12866, section 1(b)(6) and has made a 
reasoned determination that the benefits of this regulation justify its 
costs.
    The proposed rule would implement a bilateral agreement that 
allocates responsibility between the United States and Canada for 
processing claims of certain asylum seekers. The rule applies to 
individuals who are subject to expedited removal and, under existing 
regulations, would receive a credible fear interview by an asylum 
officer. This rule simply adds a preliminary screening by asylum 
officers to determine whether the alien is even eligible to seek 
protection in the United States, in which case the asylum officer will 
then proceed to make the credible fear determination under existing 
rules. Based on statistical evidence, it is anticipated that 
approximately 200 aliens may seek to enter the United States from 
Canada at a land border port-of-entry and be placed into expedited 
removal proceedings. A significant number of these aliens will be found 
exempt from the Agreement and eligible to seek protection in the United 
States after the threshold screening interview proposed in this rule. 
It is difficult to predict how many aliens will be returned to the 
U.S.-Canadian border under the Agreement, but the costs incurred in 
detaining and transporting them are not likely to be substantial. 
Therefore, the ``tangible'' costs of this rulemaking to the U.S. 
Government are minimal. Applicants who are found to be subject to the 
Safe Third Country Agreement will be returned to Canada to seek 
protection, saving the U.S. Government the cost of adjudicating their 
asylum claims and, in some cases, the cost of detention throughout the 
asylum process.
    The cost to asylum seekers who, under the proposed rule, will be 
returned to Canada are the costs of pursuing an asylum claim in Canada, 
as opposed to the United States. There is no fee to apply for asylum in 
Canada and, under Canadian law, asylum seekers are provided social 
benefits that they are not eligible for in the United States, including 
access to medical coverage, adult public education, and public 
benefits. Therefore, the tangible costs of seeking asylum in Canada are 
no greater than they are in the United States. However, because there 
may be other tangible costs to asylum seekers attempting to enter the 
United States from Canada at a land border port-of-entry (e.g., 
transportation costs to the U.S. border), public comment is invited for 
further consideration of what such additional costs may include. The 
``intangible'' costs to asylum seekers who would be returned to Canada 
under the proposed rule are the costs of potential separation from 
support networks they may be seeking to join in the United States. 
However, the Agreement contains broad exceptions based on principles of 
family unity that would generally allow those with family connections 
in the United States to seek asylum in the United States under existing 
regulations governing the credible process.
    The proposed rule benefits the United States because it enhances 
the ability of the U.S. and Canada to manage, in an orderly fashion, 
asylum claims brought by persons crossing our common border. By 
implementing the Agreement, the proposed rule furthers U.S. and 
Canadian goals, as outlined in the 30-Point Action Plan under the Smart 
Border Declaration signed by Secretary Ridge and former Canadian Deputy 
Foreign Minister John Manley, to ensure a secure flow of people between 
the two countries while preserving asylum seekers' access to a full and 
fair asylum process in a manner consistent with U.S. law and 
international obligations. Further, the Agreement and proposed rule 
save the U.S. the time and expense of adjudicating protection claims 
brought by asylum seekers who have already had a full and fair 
opportunity to present their claims in Canada.

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 responsibilities 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 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The regulations at 8 CFR 208.30 require that an asylum officer 
conduct a threshold screening interview to determine whether an alien 
is ineligible to apply for asylum pursuant to section 208(a)(2)(A) of 
the Act. The threshold screening interview is considered an information 
collection requirement subject to review by OMB under the Paperwork 
Reduction Act of 1995. Written comments are encouraged and will be 
accepted until May 7, 2004. When submitting comments on the information 
collection, your comments should address one or more of the following 
four points.
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.

Overview of This Information Collection

    (1) Type of information collection: New.
    (2) Title of Form/Collection: Credible fear threshold screening 
interview.
    (3) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: No form 
number, U.S. Citizenship and Immigration Services.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals. The information collection is 
necessary in order for the CIS to make a determination whether an alien 
is eligible to apply for asylum pursuant to section 208(a)(2)(A) of the 
Act.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: 200 respondents 
at 30 minutes per response.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 100 burden hours.
    All comments and suggestions or questions regarding additional 
information should be directed to the Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Regulations and Forms 
Services Division, 425 I Street, NW., Room 4034, Washington, DC 20536; 
Attention: Richard A. Sloan, Director, 202-514-3291.

[[Page 10626]]

Family Assessment Statement

    DHS has reviewed this regulation and determined that it may affect 
family well-being as that term is defined in section 654 of the 
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A. 
Accordingly, DHS has assessed this action in accordance with the 
criteria specified by section 654(c)(1). In this proposed rule, an 
alien arriving at a land border port-of-entry with Canada may qualify 
for an exception to the Safe Third Country Agreement, which otherwise 
requires individuals to seek protection in the country of last presence 
(Canada), by establishing a relationship to a family member in the 
United States who has lawful status in the United States, other than a 
visitor, or is 18 years of age or older and has an asylum application 
pending. This proposed rule incorporates the Agreement's definition of 
``family member,'' which may be a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew. The ``family member'' definition was intended to be broad in 
scope, to promote family unity. This proposed rule thereby strengthens 
the stability of the family by providing a mechanism to reunite 
separated family members in the United States.
    In some cases the proposed rule will have a negative effect 
resulting in the separation of family members. The Agreement's 
exceptions, as expressed in the proposed rule, require the family 
member to have either lawful status in the United States, other than 
visitor, or else to be 18 years of age or older and have a pending 
asylum application. Family members who do not meet one of these 
conditions, therefore, would be separated under the proposed rule. 
However, this proposed rule's definition of ``family member'' and the 
exceptions to the Agreement are more generous than other family-based 
immigration laws, which require the anchor family member to have more 
permanent status in the United States (such as citizen, lawful 
permanent resident, asylee or refugee) and which have a more restricted 
list of the type of family relationships that can be used to sponsor 
someone for immigration to the United States (although, unlike those 
laws, this Agreement provides only an opportunity to apply for 
protection and does not directly confer an affirmative immigration 
benefit). Under this rule, family members will be able to reunite even 
if the anchor relative's status is less than permanent in the United 
States.

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be 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 208.4 is amended by adding a new paragraph (a)(6) to 
read as follows:


Sec.  208.4  Filing the application.

* * * * *
    (a) * * *
    (6) Safe Third Country Agreement. Asylum officers have authority to 
apply section 208(a)(2)(A) of the Act, relating to the determination 
that the alien may be removed to a safe country pursuant to a bilateral 
or multilateral agreement, only as provided in Sec.  208.30(e). For 
provisions relating to the authority of immigration judges with respect 
to section 208(a)(2)(A), see 8 CFR 1240.11(g).
* * * * *
    3. Section 208.30 is amended by:
    a. Redesignating paragraph (e)(4) as (e)(7);
    b. Redesignating paragraphs (e)(2) and (e)(3) as (e)(4) and (e)(5) 
respectively;
    c. Revising newly designated paragraphs (e)(4) and (e)(5);
    d. Adding new paragraphs (e)(2), (e)(3), and (e)(6);
    e. Revising paragraph (g)(2)(i), and by
    f. Removing paragraphs (g)(2)(iii) and (g)(2)(iv).
    The additions and revisions 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.

* * * * *
    (e) * * *
    (2) An alien will be found to have a credible fear of persecution 
if there is a significant possibility, taking into account the 
credibility of the statements made by the alien in support of the 
alien's claim and such other facts as are known to the officer, the 
alien can establish eligibility for asylum under section 208 of the Act 
or for withholding of removal under section 241(b)(3) of the Act.
    (3) An alien will be found to have a credible fear of torture if 
the alien shows that there is a significant possibility that he or she 
is eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to Sec. Sec.  208.16 or 208.17.
    (4) 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 shall consider whether the 
alien's case presents novel or unique issues that merit consideration 
in a full hearing before an immigration judge.
    (5) Except as provided in paragraph (e)(6) of this section, 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 Department of Homeland Security 
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 Department shall place 
the alien in proceedings for consideration of the alien's claim 
pursuant to Sec.  208.2(c)(3).
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the U.S. during removal by Canada has a credible fear 
of persecution or torture, the asylum officer shall conduct a threshold 
screening interview to determine whether such an alien is ineligible to 
apply for asylum pursuant to section 208(a)(2)(A) of the Act and 
subject to removal to Canada under the Agreement Between the Government 
of the United States and the Government of Canada For Cooperation in 
the Examination of Refugee Status Claims from Nationals of Third 
Countries (``Agreement''). In conducting this threshold screening 
interview, the asylum officer shall advise the alien of the Agreement's 
exceptions and question the alien as to applicability of any of these 
exceptions to the alien's case.
    (i) If the asylum officer determines that an alien does not qualify 
for an

[[Page 10627]]

exception under the Agreement during this threshold screening 
interview, the alien is ineligible to apply for asylum in the United 
States. After review of this finding by a supervisory asylum officer, 
the alien shall be advised that he or she will be removed to Canada in 
order to pursue his or her claims relating to a fear of persecution or 
torture under Canadian law. Aliens found ineligible to apply for asylum 
under this paragraph shall be removed to Canada.
    (ii) If the alien establishes by a preponderance of the evidence 
that he or she qualifies for an exception under the terms of the 
Agreement, the asylum officer shall make a written notation of the 
basis of the exception, and then proceed immediately to a determination 
concerning whether an alien has a credible fear of persecution or 
torture.
    (iii) An alien qualifies for an exception to the Agreement if the 
alien is not being removed from Canada in transit through the United 
States and:
    (A) Is a citizen of Canada or, not having a country of nationality, 
is a habitual resident of Canada;
    (B) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who has been granted asylum, refugee, or other lawful status in 
the United States, provided, however, that this exception shall not 
apply to an alien whose relative maintains only nonimmigrant visitor 
status, as defined in section 101(a)(15)(B) of the Act, or whose 
relative maintains only visitor status based on admission to the U.S. 
pursuant to the Visa Waiver Program;
    (C) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who is at least 18 years of age and has an asylum application 
pending before U.S. of Citizenship and Immigration Services, the 
Executive Office for Immigration Review, or on appeal in federal court 
in the United States;
    (D) Is unmarried, under 18 years of age, and does not have a parent 
or legal guardian in either Canada or the United States;
    (E) Arrived in the United States with a validly issued visa or 
other valid admission document, other than for transit, issued by the 
United States, or, being required to hold a visa to enter Canada, was 
not required to obtain a visa to enter the United States; or
    (F) The Department of Homeland Security determines, in the exercise 
of unreviewable discretion, that it is in the public interest to allow 
the alien to pursue a claim for asylum, withholding of removal, or 
protection under the Convention Against Torture, in the United States.
    (iv) As used in Sec.  208.30(e)(6)(iii)(B), (C) and (D) only, 
``legal guardian'' means a person currently vested with legal custody 
of such an alien or vested with legal authority to act on the alien's 
behalf, provided that such an alien is both unmarried and less than 18 
years of age, and provided further that any dispute with respect to 
whether an individual is a legal guardian will be resolved on the basis 
of U.S. law.
* * * * *
    (g) * * *
    (2) * * *
    (i) Immigration judges will review negative credible fear findings 
as provided in 8 CFR 1208.30(g)(2).
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    4. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1225, 1226, 1227, 1228; 8 CFR part 2.

    5. Section 212.5 is amended by adding new paragraph (e)(2)(iii) to 
read as follows:


Sec.  212.5  Parole of aliens into the United States.

* * * * *
    (e) * * *
    (2) * * *
    (iii) Any alien granted parole into the United States so that he or 
she may transit through the United States in the course of removal from 
Canada shall have his or her parole status terminated upon notice, as 
specified in Sec.  212.5(e)(2)(i), if he or she makes known to an 
immigration officer of the United States a fear of persecution or an 
intention to apply for asylum. Upon termination of parole, any such 
alien shall be regarded as an applicant for admission, and processed 
accordingly by the Department of Homeland Security.
* * * * *

    Dated: January 26, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-5077 Filed 3-5-04; 8:45 am]
BILLING CODE 4410-10-P




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