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[Federal Register: November 29, 2004 (Volume 69, Number 228)]
[Rules and Regulations]               
[Page 69490-69498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no04-14]                         

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

DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1208, 1212, 1235, and 1240

[EOIR No. 142F; AG Order No. 2740-2004]
RIN 1125-AA46

 
Asylum Claims Made by Aliens Arriving From Canada at Land Border 
Ports-of-Entry

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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

SUMMARY: This rule adopts without substantial change the proposed rule 
to implement the December 5, 2002, 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 Counties 
(``bilateral Agreement with Canada'' or ``Agreement''). The Agreement 
bars certain aliens who are arriving from Canada, or in transit during 
removal from Canada, from applying for asylum and related protections 
in the United States. In the context of expedited removal proceedings, 
the Department of Homeland Security (``DHS'') will conduct a threshold 
screening interview to determine whether the Agreement applies to an 
alien. The DHS final rule is published elsewhere in this Federal 
Register. The role of the Executive Office of Immigration Review 
(``EOIR'') is limited to an evaluation of how the Agreement applies to 
aliens whom DHS has chosen to place in removal proceedings.

DATES: This rule is effective December 29, 2004.

FOR FURTHER INFORMATION CONTACT: Mary Beth Keller, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Introduction

    On March 8, 2004, the Department of Justice (``Department'') and 
DHS promulgated proposed rules implementing the Agreement. See 69 FR 
10627 (March 8, 2004). This final rule adopts the Department's proposed 
rule without significant change. The proposed rule described procedures 
implementing the Agreement in removal proceedings under section 240 of 
the Immigration and Nationality Act (``Act'').
    The Agreement covers certain aliens who are arriving at U.S.-Canada 
land border ports-of-entry or arriving in transit through the U.S. 
during removal by the Canadian government and who express a fear of 
persecution or torture. Subject to several specific exceptions, the 
Agreement provides for the United States to return such arriving aliens 
to Canada, the country of last presence, to seek protection under 
Canadian law, rather than applying in the United States for the 
protective claims of asylum, withholding of removal, or protection 
under the United Nations Convention Against Torture and Other Cruel, 
Inhuman, or Degrading Treatment or Punishment (``Convention Against 
Torture'' or ``CAT''). Therefore, aliens covered by the Agreement will 
be allowed to seek asylum and related protections in one country or the 
other, but not in both.
    The Agreement specifically recognizes that Canada offers a generous 
system of refugee protection, and has a tradition of assisting refugees 
and displaced persons abroad. The Agreement also ensures that asylum 
seekers returned to Canada will have access to a full and fair 
procedure for determining their protection claims before they can be 
removed to a third country.
    As implemented in the United States, the Agreement will operate as 
follows. First, a United States Citizenship and Immigration Services 
(``USCIS'') asylum officer will conduct a threshold screening interview 
in the context of expedited removal proceedings. The DHS final rule, 
published elsewhere in this edition of the Federal Register, and the 
DHS proposed rule, published at 69 FR 10620 (March 8, 2004), address 
this process in more detail. To summarize, the asylum officer will 
conduct a threshold screening interview to determine whether an 
arriving alien who is subject to the Agreement meets any of its 
exceptions, or whether the alien should be returned to Canada for 
consideration of his or her protection claims in that country.
    If the asylum officer determines that the alien qualifies for an 
exception to the Agreement, the asylum officer will then proceed 
immediately to a consideration of whether the alien has a credible fear 
of persecution or torture if returned to his or her country. The 
existing credible fear process of section 235(b) of the Act will apply 
to those aliens, including the potential for review by an immigration 
judge.
    On the other hand, if the asylum officer determines that an 
arriving alien does not meet an exception to the Agreement and should 
be returned to Canada for consideration of his or her asylum or other 
protection claims under Canadian law, the asylum officer's

[[Page 69491]]

decision will not be reviewed by an immigration judge. These aliens are 
not eligible to apply for asylum via the credible fear process, by 
operation of the Agreement and section 208(a)(2)(A) of the Act.
    Finally, this rule recognizes that DHS may choose, in certain 
cases, to place an arriving alien into removal proceedings under 
section 240 of the Act, rather than expedited removal under section 235 
of the Act. The immigration judges will apply the terms of the 
Agreement with respect to the alien. In that case, if the immigration 
judge determines that the Agreement is applicable and orders the alien 
removed, the alien will be returned to Canada to seek protection under 
Canadian law. This rule also provides that aliens whom DHS places in 
removal proceedings and who are ineligible to apply for protection by 
operation of the Agreement may, nevertheless, apply for any other form 
of relief from removal for which they may be eligible. See 8 CFR 
1240.11(g)(4).

Public Comments

    The public was provided a 60-day comment period that ended on May 
7, 2004. The Department received comments from the United Nations High 
Commissioner for Refugees, three non-governmental organizations, and an 
interested individual. The comments covered a broad range of issues, 
and included arguments for both expanding the rule, and for making it 
more restrictive. The comments also included some general opposition to 
the Agreement itself.\1\ The DHS final rule published elsewhere in this 
edition of the Federal Register addresses public comments received in 
response to the DHS proposed rule.
---------------------------------------------------------------------------

    \1\ The Department notes that the public was provided an 
opportunity to express their views about the proposed Agreement 
during a meeting at the former Immigration and Naturalization 
Service. See 67 FR 46212 (July 12, 2002). The Agreement is now 
final.
---------------------------------------------------------------------------

    Several commenters asserted that there should be a provision 
permitting independent review of an asylum officer's negative threshold 
determination, or that the evaluation should be conducted as part of 
the credible fear determination, which would include review by an 
immigration judge. In contrast, one commenter took the position that 
positive threshold determinations should be automatically reviewed by 
an immigration judge, but there should be no review of negative 
determinations. Other comments related to the procedures to be applied 
when the Agreement is applied in removal proceeding under section 240 
of the Act.
    Several commenters were concerned about precluding aliens covered 
by the Agreement from applying for withholding of removal and 
protection under the Convention Against Torture. The commenters also 
raised issues related to the administration of the Agreement's 
exceptions, procedures for asylum seekers returned to the United States 
under the Agreement, requests for reconsideration of decisions made by 
the Canadian government to return asylum seekers to the United States, 
the inadmissibility of aliens subsequent to removal to Canada, and the 
possibility of accepting motions to reopen or reconsider filed by 
asylum seekers after they are returned to Canada.
    These and other comments about the proposed rule are summarized by 
subject matter and responded to below. After careful review and 
consideration of all comments, the Department will retain the structure 
of the proposed rule without modification except for a few minor 
technical changes and corrections.

A. The Threshold Screening Interview

    As outlined in the DHS proposed rule and summarized above, the 
Agreement will be implemented by DHS in expedited removal proceedings 
by means of a ``threshold screening interview.'' During this interview, 
an asylum officer will question aliens who are subject to the Agreement 
to determine whether they meet one of the Agreement's exceptions. See 8 
CFR 208.30(e)(6). Aliens in expedited removal proceedings who do not 
meet one of the exceptions will be returned to Canada without 
initiation of the credible fear process or involvement of the 
Department's immigration judges. Several commenters asserted that the 
asylum officer's decision in the threshold screening interview should 
be subject to independent review by an immigration judge. The 
Department declines to adopt this suggestion.
    In the supplementary information to the Department's proposed rule, 
the Department explained that, compared to the myriad of issues that 
can arise in a credible fear interview, the matters in a threshold 
screening interview are narrow in scope. See 69 FR at 10630. The 
commenters contest this characterization, and assert that many 
complicated issues could arise. Specifically, the commenters gave 
examples of age determination of ``unaccompanied minors,'' and of 
whether an asylum seeker has a qualifying relative under the relevant 
Agreement exceptions.
    The Department remains confident that asylum officers will be able 
to adequately address the issues that could arise during the threshold 
screening interview, and that further review by an immigration judge is 
unnecessary, regardless of whether the ultimate determination is 
positive or negative. Asylum officers are trained personnel who must 
regularly make factual and legal determinations. Additionally, the DHS 
final rule has been amended to require that a supervisory asylum 
officer must concur in any negative threshold determination by an 
asylum officer. These requirements ensure a comprehensive review at the 
screening level, and one which comports with due process.
    Relatedly, several commenters asserted that any determination under 
the Agreement should be part of the credible fear interview process, 
and that the proposed screening process would controvert the existing 
statutory and regulatory scheme governing the credible fear process. 
The commenters argue that an assessment under the Agreement is really a 
question of eligibility for asylum and related relief, and, under 
current 8 CFR 208.30(e), once credible fear is established, any 
question of eligibility for relief must occur in removal proceedings.
    The Department has concluded that the threshold screening interview 
is not inconsistent with the Immigration and Nationality Act. See 8 
U.S.C. 1158(d)(5)(B). The threshold factual determinations under the 
Agreement--e.g., whether the alien is under the age of 18 or has a 
qualifying relative in the United States--relate only to the 
applicability of the terms of the Agreement, which is expressly 
authorized by section 208(a)(2)(A) of the Act, not to a determination 
whether the alien has suffered past persecution or faces future 
persecution or torture if returned to his or her country. In short, the 
purpose of the determinations under the Agreement is not to evaluate 
the merits of the alien's claims for asylum or other protections, but 
instead relate to which forum will consider the merits of those claims. 
There is no requirement under the Agreement that an immigration judge 
review a decision that an alien is ineligible to apply for asylum in 
the United States. An asylum officer's determination that the alien 
should be returned to Canada under the Agreement means that the alien 
will then pursue his or her protection claims in Canada under Canadian 
law rather than in the United States, pursuant to section 208(a)(2)(A). 
Although the current version of the regulations referenced by 
commenters does not permit asylum officers to apply the asylum bars 
during the credible fear

[[Page 69492]]

process, the threshold screening process created in the DHS rules is 
separate and distinct from the credible fear process. Further, with 
respect to this concern about the inconsistency between the ``threshold 
screening interview'' and existing regulatory provisions, the 
Department and DHS rules, after notice to the public and opportunity 
for comment, are amending these existing regulations under authorized 
rulemaking procedures.
    The Department also notes that, under the DHS rule, once an alien 
satisfies any of the exceptions under the Agreement, an asylum officer 
will then make a credible fear determination relating to the alien's 
protection claims. See 8 CFR 208.30(e)(6) and 235.3(b)(4). As with any 
other credible fear determination, the alien will be able to seek a 
review of any adverse decision by an immigration judge.
    The commenters also refer to section 235(b)(1)(A)(ii) of the Act, 
which states that immigration officers shall refer an arriving alien 
for a credible fear interview before an asylum officer if that alien 
indicates an intention to apply for asylum or expresses a fear of 
persecution. The Act generally requires that an arriving alien be given 
a credible fear interview if the alien expresses either an intention to 
apply for asylum under section 208 of the Act or a fear of persecution. 
In particular, section 208(a)(1) of the Act recognizes the right of an 
arriving alien to present a claim for asylum, specifically by means of 
the credible fear process under section 235(b) of the Act. However, 
section 208(a)(2)(A) of the Act provides that the right to apply for 
asylum as stated in section 208(a)(1) of the Act shall not apply in the 
case of an alien who can be removed to a safe third country pursuant to 
a bilateral or multilateral agreement. That is, aliens who can be 
removed to a safe third country under this process do not have a right 
to apply for asylum in the United States. Since, as noted in section 
208(a)(1) of the Act, the credible fear process is the means by which 
arriving aliens present their claim for asylum, this necessarily means 
that aliens who can be removed to a safe third country do not have a 
statutory right to a credible fear review. Accordingly, an arriving 
alien who is subject to the bilateral Agreement with Canada, and does 
not qualify for an exception to that Agreement, would not have the 
right to present a claim for asylum through the credible fear process, 
including immigration judge review. Rather, in accord with the Act, the 
alien would be returned to Canada so that Canadian officials can 
consider the merits of his or her protection claims under Canadian law.
    Finally, as the Department discussed in the supplementary 
information to the proposed rule, permitting immigration judge review 
of an asylum officer's determination to return the alien to Canada 
under the Agreement would likely result in prolonging the detention of 
arriving aliens who otherwise could be returned promptly to Canada to 
pursue their asylum claims there. See 69 FR at 10630.
    For the foregoing reasons, the Department believes that the 
threshold screening interview to determine if an arriving alien should 
be returned to Canada should remain separate from the credible fear 
process, which relates to the merits of an alien's claims of past or 
future persecution. The Department acknowledges the legal sufficiency 
of the threshold screening interview approach specified in the DHS rule 
and declines to adopt the commenters' suggested changes to this 
approach.

B. Consideration of the Agreement in Removal Proceedings

    One commenter sought clarification as to whether certain provisions 
normally applicable in removal proceedings would apply to arriving 
aliens whom DHS has chosen to place in removal proceedings. The 
Department notes that individuals placed in removal proceedings 
pursuant to section 240 of the Act who are subject to the terms of the 
Agreement will be subject to the usual statutory and regulatory 
provisions applicable in removal proceedings before an immigration 
judge.
    The commenter specifically requested the issuance of regulatory or 
field guidance for the immigration judges to make clear that a 
reasonable request for a continuance to obtain evidence for Agreement-
related issues should be granted. The Department declines to take this 
action. The regulations governing removal proceedings provide that the 
immigration judge has the discretion to deny a request for a 
continuance, or to grant one when ``good cause'' is shown. See 8 CFR 
1003.29. This rule would apply to any removal proceeding where the 
applicability of the Agreement is at issue. The parties therefore have 
an established procedure by which to make a request for a continuance, 
and the immigration judge will adjudicate such requests on a case-by-
case basis.
    One commenter questioned whether individuals placed in removal 
proceedings will be permitted to appeal the findings of an immigration 
judge under the Agreement to the Board of Immigration Appeals 
(``Board''). The Board has jurisdiction to review appeals from all 
decisions of immigration judges in removal proceedings. See 8 CFR 
1003.1(b)(3) and 1240.15. This would include a decision of an 
immigration judge concerning the applicability of the Agreement.

C. Withholding of Removal and Convention Against Torture Claims

    Several commenters challenged the provision of the proposed rule 
that states that aliens who are ineligible to apply for asylum in the 
United States under the Agreement are also precluded from applying for 
withholding of removal or protection under the Convention Against 
Torture. The commenters assert that section 208(a)(2)(A) of the Act 
only provides for safe third country agreements as a bar to asylum, and 
does not extend to withholding of removal or protection under CAT.
    As the Department pointed out in the supplementary information to 
the proposed rule, there is nothing in section 241(b)(3)(A) of the Act, 
or in Article 3 of CAT, and their respective implementing regulations, 
which prevents the United States from removing an alien to a safe third 
country so that the alien can pursue his or her protection claims in 
that country. See 69 FR at 10631. In this discussion, we explained that 
the specific terms of the Agreement are consistent with the United 
States' obligation not to return an individual to a country where the 
person would face persecution or torture. See id.
    The Department agrees that withholding of removal under section 
241(b)(3)(A) of the Act, and withholding or deferral of removal under 
CAT, are mandatory forms of relief for aliens who establish that they 
are entitled to such relief. However, it is essential to keep in mind 
that, in order to be entitled to such relief, an alien must demonstrate 
that it is more likely than not that he or she would be persecuted, or 
tortured, in the particular removal country. That is, withholding or 
deferral of removal relates only to the country as to which the alien 
has established a likelihood of persecution or torture--the alien may 
nonetheless be returned, consistent with CAT and section 241(b)(1) and 
(b)(2) of the Act, to other countries where he or she would not face a 
likelihood of persecution or torture.
    In the context of aliens covered by the Agreement, the United 
States and Canada have acknowledged that Canada is a safe third country 
where aliens will have resort to its asylum system, and where they will 
have access to a full and

[[Page 69493]]

fair procedure for determining their claims for protection against 
persecution or torture if returned to any country in which they fear 
such harm. Canada is a safe third country, and in the absence of a 
showing that an alien would face the likelihood of persecution or 
torture in Canada, the United States clearly would not be in violation 
of its international obligations (as those obligations are codified in 
the Act and its implementing regulations) by returning such an alien to 
Canada.\2\ Thus this rule is fully consistent with the legal 
requirements under section 241(b)(3) of the Act and CAT.
---------------------------------------------------------------------------

    \2\ The commenters do not appear to be challenging the 
designation of Canada as a safe third country. We note that Article 
2 of the Agreement provides that the Agreement does not apply to 
refugee claimants who are citizens of Canada or the United States or 
to aliens who, not having a country of nationality, are habitual 
residents of Canada or the United States. If an alien has any 
additional arguments about why return to Canada is not appropriate 
under the Agreement, they could be raised with DHS in the context of 
the public interest exception.
---------------------------------------------------------------------------

    The commenters also assert that Canada's mere accession to CAT is 
an insufficient basis to exclude aliens from seeking CAT relief, 
arguing that the Department and DHS rules somehow set a precedent for a 
``safe country of origin'' list that is a step beyond the safe third 
country concept. They argue that adjudication of refugee claims should 
not be precluded based upon a blanket determination that a country is 
``safe.'' In support of their argument, the commenters state that 
aliens presently seek CAT protection from countries that are 
signatories to CAT, mentioning those countries by name.
    The Department is not persuaded by this line of argument, because 
the provisions of this rule only apply with respect to a safe third 
country agreement that satisfies all of the requirements of section 
208(a)(2)(A) of the Act. At present the only such Agreement is between 
the United States and Canada. The Agreement was created in recognition 
of that country's relationship with the United States, and other 
specific factors. These include Canada's generous refugee system, 
tradition of assisting refugees and displaced persons, and agreement to 
provide each refugee status claimant access to a full and fair refugee 
status determination procedure as a means to guarantee the protections 
of the 1951 Convention Relating to the Status of Refugees, the 1967 
Protocol Relating to the Status of Refugees, and the Convention Against 
Torture.
    Additionally, one commenter argued that returning an alien to 
Canada under the Agreement would constitute ``indirect'' refoulement in 
violation the United States' international obligation to protect 
refugees. The commenter argues that returning the asylum seeker to 
Canada may indirectly constitute refoulement if Canadian authorities 
subsequently send the alien back to the place of feared persecution. 
This rule, however, only deals with returning an individual to Canada 
pursuant to the terms of the Agreement, where the alien will have a 
full opportunity to pursue their claims for protection. As previously 
stated, returning an alien to a safe third country is fully consistent 
with the United States' obligations not to return an individual to a 
country where the person would face persecution or torture.

D. Exceptions to the Agreement

    One commenter expressed several specific concerns about the 
exceptions provided for by the Agreement, and these suggestions will be 
addressed in turn. The Department initially points out that the 
exceptions to the Agreement are found in the DHS final rule at 8 CFR 
208.30(e)(6)(iii), and are incorporated by reference into this final 
rule at 8 CFR 1240.11(g)(3). The DHS rule provides a detailed 
discussion of the exceptions.
1. Family Unity Provisions
    The commenter recommended that under the family unity provisions, 
the term ``spouse'' should be interpreted to include a common-law 
spouse. DHS has not expanded the definition of spouse; similarly, the 
Department will not undertake this action. The Department does point 
out that the Act and case law have addressed the definition of 
``spouse'' under the immigration law. See, e.g., section 101(a)(35) of 
the Act; Matter of H-, 9 I&N Dec. 640 (BIA 1962) (recognizing the 
general rule that the validity of a marriage is determined by the law 
of the place where it is contracted or celebrated). The parties are 
free to present any proper arguments regarding the interpretation of 
the term ``spouse'' before the immigration judge in the course of 
removal proceedings.
    The commenter also recommended that ``de facto'' relatives be 
considered eligible ``anchor'' relatives if the individual serves or 
has served as the alien's primary source of emotional or material 
support, regardless of their relationship to the alien. As explained in 
the supplementary information to the DHS final rule, the definition of 
``family member'' was the subject of much negotiation in the context of 
the Agreement, and DHS has declined to further expand the definition in 
its final rule. The Department accordingly declines to make this 
change.
    On the other hand, one commenter stated that the family unity 
exceptions in the Agreement are too broad, and that they should include 
a provision requiring family members to assume full financial 
responsibility for any alien falling under an exception. The commenter 
also expressed other objections to the exceptions, arguing for example 
that minors should not be treated any differently than adults. The 
Department declines to narrow or limit any exceptions to the Agreement, 
just as the Department has declined to expand upon them.
2. Valid Visa Exception
    One commenter expressed concern about the exception for asylum 
seekers who arrive in the United States pursuant to a validly issued 
United States visa or other valid admission document. The commenter 
effectively noted that DHS may consider such documents, even if 
genuine, to support a charge of fraud in violation of section 
212(a)(6)(C) of the Act if they were procured by applicants whose true 
intentions were to enter the United States to apply for asylum. The 
commenter sought clarification as to whether such United States visas 
would be considered ``validly issued'' under the exception to the 
Agreement. The DHS has not amended its rule in this area; however, the 
supplementary information to the DHS final rule states that for the 
limited purposes of applying the exception to the Agreement, USCIS will 
issue and apply operational guidance interpreting the term ``validly 
issued'' without regard to the asylum seeker's subjective intent. If an 
alien is placed into removal proceedings under section 240 of the Act, 
the parties may raise any issues concerning the interpretation of this 
exception before the immigration judge in the course of removal 
proceedings. The Department notes that the factual basis for a possible 
finding of inadmissibility under section 212(a)(6)(C) of the Act will 
be scrutinized, because such a finding may permanently bar an alien 
from admission. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994).
3. Public Interest Exception
    One commenter raised several issues concerning the application of 
the public interest exception for aliens in removal proceedings. For 
example, the commenter recommended that minors who have a parent or 
legal guardian in the United States and do not meet any of the specific 
exceptions to the Agreement should be considered under the public 
interest exception. The DHS rule provides that an asylum officer may

[[Page 69494]]

decide in the public interest to allow an alien covered by the 
Agreement to pursue a claim for asylum or other protection even though 
the alien does not meet a specific exception to the Agreement. If the 
alien is in removal proceedings, DHS may file a written notice of its 
decision before the immigration judge. See 8 CFR 240.11(g)(3). The 
Attorney General has decided that the decision to invoke this authority 
will be left solely within the discretion of DHS and will not be within 
the discretion of the immigration judges to review or adjudicate in the 
first instance. The Department therefore declines to expand or amend 
the public interest definition as has been suggested by the commenter. 
We note that the supplementary information to the DHS rule concluded 
that the public interest exception is best administered through 
operational guidance and on a case-by-case basis. In addition, DHS has 
stated in the preamble to its rule that it will be sensitive to the 
unique issues facing minors and will proceed carefully in those cases.
    The commenter also recommended that the proposed rule establish a 
procedure between the Department and DHS to ensure that DHS fully 
considers the application of the public interest exception in those 
cases being adjudicated before an immigration judge. The Department 
declines to accept the commenter's recommendation. This rule provides 
that an immigration judge may consider asylum issues regarding an alien 
who otherwise would be barred by the Agreement if DHS notifies the 
immigration judge that it has invoked the public interest exception. If 
an issue arises in removal proceedings related to the public interest 
exception, and it is within the jurisdiction of the immigration judge 
to address, the parties may raise the matter during the proceedings 
under the existing rules.

E. Procedures for Asylum Seekers Returned to the United States

    One commenter sought an explanation as to how asylum seekers 
returned to the United States from Canada under the Agreement will be 
received and processed. The commenter understood that these returnees, 
without lawful status in the United States, will be processed as if 
apprehended in the interior of the United States and thus will be 
placed in removal proceedings, rather than being treated as arriving 
aliens subject to expedited removal.
    The manner in which asylum seekers returned to the United States 
from Canada under the Agreement will be received and processed is 
within the province of DHS. See, e.g., Matter of Bahta, 22 I&N Dec. 
1381, 1391 (BIA 2000) (addressing the former Immigration and 
Naturalization Service's fundamental authority to exercise procedural 
discretion on whether to commence removal proceedings). The 
supplementary information to the DHS final rule provides a discussion 
of how these asylum seekers will be received and processed.
    The commenter recommended that, if DHS decides to detain an asylum 
seeker returned under the Agreement, immigration judges should either 
order the release of the individual or set a low bond if the person 
does not pose a danger to the community and his or her identity has 
been established.
    The Department declines to adopt special rules in this situation. 
In general, an alien whom DHS has chosen to place in removal 
proceedings before an immigration judge will be subject to the 
established procedures governing custody and bond determinations. See 8 
CFR 236.1, 1003.19, and 1236.1(d). Those procedures do not apply, 
however, with respect to arriving aliens whom DHS has placed in 
expedited removal under section 235 of the Act. See also 8 CFR 235.3(c) 
(arriving aliens remain subject to detention as arriving aliens even if 
they are placed into removal proceedings under section 240 of the Act, 
but may be paroled by DHS). An arriving alien's custody status is not 
subject to review by an immigration judge. See 8 CFR 
1003.19(h)(2)(i)(B); Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998).
    The commenter further expressed concern about a possible surge of 
asylum seekers to the United States-Canadian ports-of-entry before the 
implementation of the Agreement, which would result in the Canadian 
authorities being overwhelmed with requests and having to ``direct 
back'' aliens to the United States with re-scheduled Canadian 
interviews. This has reportedly happened in the past, and one 
consequence was that asylum seekers were detained in the United States 
and unable to return to Canada for their interviews. The commenter 
recommended that, with respect to asylum seekers placed in removal 
proceedings ``as a result of a Canadian direct-back, and absent any 
serious security concerns,'' immigration judges either release these 
individuals on their own recognizance or set a low bond so that they 
can return to Canada to attend their scheduled hearings. The commenter 
also recommended that the removal proceedings of such individuals be 
administratively closed while they pursue their refugee claims in 
Canada.
    The Department declines to accept the commenter's recommendations. 
Because the Agreement does not contemplate that special consideration 
be given to such aliens, DHS will in the first instance decide how to 
deal with these individuals in the exercise of its enforcement 
discretion. If the aliens are placed into removal proceedings before an 
immigration judge, they will have recourse to existing procedures, 
including procedures for custody and bond redeterminations, and 
requests for administrative closure. For a more complete discussion of 
how these aliens may be processed should this situation arise, see the 
SUPPLEMENTARY INFORMATION section in the DHS final rule published 
elsewhere in this Federal Register.

F. Reconsideration by Canada for Asylum Seekers Returned to the United 
States

    One commenter has encouraged Canada to establish a mechanism to 
reconsider cases, based on new evidence or changed circumstances, after 
a person has been returned to the United States under the Agreement. 
The commenter seeks an explanation as to how the Department would 
assist Canadian authorities if such a reconsideration was sought. The 
commenter specifically recommends that, in the event Canadian 
authorities seek the alien's presence at the United States-Canadian 
border to reconsider a claim, the immigration judge should order the 
release or appropriately lower the bond of that alien, and 
administratively close the alien's case if he or she is admitted into 
Canada to pursue a refugee claim.
    The Agreement does not address the issue of reconsideration of 
claims after they are adjudicated by either country. The Department 
will not speculate about what future developments in this area might 
occur. If Canadian officials do seek to reconsider the case of an alien 
who is in removal proceedings, the initial determination on how to 
respond would be made by DHS, not by the immigration judge. The parties 
to the proceedings may present their positions concerning the alien's 
detention in the course of any custody review properly before the 
immigration judge. Further, any request for administrative closure of a 
removal proceeding should be addressed on a case-by-case basis. See 
generally Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996) 
(administrative closure is used to temporarily remove a case from the 
docket, and is not permitted if opposed by either party).

[[Page 69495]]

The Department therefore declines to accept the commenter's 
recommendation.

G. Inadmissibility of Aliens Removed to Canada Under the Agreement

    One commenter recommended that an alien who is returned to Canada 
under the Agreement should not subsequently be found inadmissible to 
the United States under section 212(a)(9)(A)(i) of the Act (providing 
that any alien who has been ordered removed under section 235(b)(1) of 
the Act, or at the end of removal proceedings under section 240 of the 
Act initiated upon the alien's arrival, is inadmissible for 5 years 
after the date of such removal).
    The Department notes that the applicability of the Agreement does 
not change the fact that an alien has been ordered removed in the 
context of expedited removal proceedings or removal proceedings under 
section 240 of the Act. The Department finds no reason why section 
212(a)(9)(A) of the Act, or any related provisions concerning aliens 
removed from the United States, would not apply in the case of an alien 
subject to the Agreement who is subject to expedited removal or is 
ordered removed to Canada by an immigration judge. As for other 
arriving aliens who have been ordered removed, the alien may seek DHS' 
consent to reapply for admission, pursuant to section 212(a)(9)(A)(iii) 
of the Act.

H. Requests for Reconsideration for Asylum Seekers Returned to Canada

    One commenter recommended that the immigration judge and the Board 
permit requests by the individual asylum seeker, or the Canadian 
government, to reconsider a decision that an alien did not qualify for 
an exception to the Agreement, even after an alien has been removed to 
Canada.
    The Department declines to accept the commenter's recommendation. 
The rules governing motions for reopening and reconsideration do not 
provide authority for third parties, such as the Canadian government, 
to file motions in proceedings before the immigration judge or the 
Board. See 8 CFR 1003.2(a) and 1003.23(b). In addition, the regulations 
provide that a motion to reopen or reconsider shall not be made by or 
on behalf of a person who is the subject of removal, deportation, or 
exclusion proceedings subsequent to his or her departure from the 
United States. See 8 CFR 1003.2(d) and 1003.23(b). The Department 
declines to make any amendments to these existing regulations.
    The commenter requested that, at a minimum, individuals returned to 
Canada be permitted to resubmit asylum claims at the border, assuming 
they are not detained. With respect to an alien who already has been 
returned to Canada under the Agreement in order to seek protection 
under Canadian law, allowing such an alien to return once again to the 
United States and resubmit his or her asylum claims after being denied 
relief in Canada would undermine a general premise of the Agreement, 
which is that a covered alien is able to seek protection in one country 
or the other, but not both. If such an alien later returns to a U.S.-
Canada land border port-of-entry seeking protection, he or she would 
remain subject to the Agreement and be removed to Canada again unless 
he or she was able to establish an exception to the Agreement.

I. Miscellaneous Issues

    The Department also received several miscellaneous comments from 
one commenter who asserted that the United States has too many illegal 
immigrants (which drives up various costs), that battered women should 
stay in their own countries and work to change laws there, and that 
this rule is a ``major rule'' that will costs taxpayers millions of 
dollars.
    In response, it is the Department's long-standing position that 
America is a welcoming country to persons who come here lawfully--
whether they come here as immigrants or non-immigrants (including as 
refugees from human rights abuses)--and that lawful immigration 
benefits this country. However, the Department and other agencies of 
the United States government vigorously enforce American immigration 
laws against illegal immigration. The Department disagrees that this 
rule is a ``major rule'' under the Small Business Regulatory 
Enforcement Fairness Act or that it is ``economically significant'' 
within the meaning of Executive Order 12866. This rule simply 
implements a statutorily-authorized agreement between the United States 
and Canada that allocates responsibility between the United States and 
Canada for processing claims of certain asylum seekers.
    Finally, the Department has added one minor conforming amendment at 
8 CFR 1235.3(b)(4) to accommodate DHS' use of the threshold screening 
process in applying the Agreement. For more details concerning the DHS 
amendment to 8 CFR 235.3(b)(4), see the DHS final rule also appearing 
in this Federal Register. This rule makes a conforming amendment to 8 
CFR 1235.3(b)(4) to cross-reference the provisions of the DHS rule 
rather than restating them. The Department is also correcting a 
typographical error to the part heading of 8 CFR 1235.

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 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 251 of the 
Small Business Regulatory Enforcement 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

    The Attorney General 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 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 rule would implement a bilateral Agreement that allocates 
responsibility between the United States and Canada for processing 
claims of certain asylum-seekers, enhancing the two nations' ability to 
manage, in an orderly fashion,

[[Page 69496]]

asylum claims brought by persons crossing our common border. The rule 
applies to certain individuals in removal proceedings who apply for 
asylum. This rule simply adds another factor for immigration judges to 
consider in removal proceedings. Therefore, the ``tangible'' costs of 
this rulemaking to the U.S. Government are minimal. Applicants who are 
found to be subject to the bilateral Agreement with Canada will be 
returned to Canada to seek asylum, saving the U.S. Government the cost 
of adjudicating their asylum claims.
    The cost to asylum-seekers who, under the 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 
for which they are not eligible in the United States. Therefore, the 
tangible costs of seeking asylum in Canada are no greater than they are 
in the United States. The ``intangible'' costs to asylum-seekers who 
would be returned to Canada under the 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 allow many of those with 
family connections in the United States to seek asylum in the United 
States under existing regulations.

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 provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this final rule because there are no new or 
revised recordkeeping or reporting requirements.

Family Assessment Statement

    The Attorney General has reviewed this regulation and assessed this 
action in accordance with the criteria specified by section 654(c)(1) 
of the Treasury General Appropriations Act, 1999, Public Law 105-277, 
Div. A. The Attorney General has determined that it will not affect 
family well-being as that term is defined in section 654.
    The separate final rule published by the Department of Homeland 
Security explains that an alien arriving at U.S.-Canada land border 
port-of-entry may qualify for an exception to the bilateral Agreement 
with Canada, 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. The DHS proposed rule addresses 
issues relating to family well-being in connection with that rule.
    This rule provides that the immigration judges will apply the 
definition of ``family member'' used in the Agreement and DHS rule, in 
those cases where DHS has chosen to place an alien who is subject to 
the Agreement into removal proceedings under section 240 of the Act. 
However, that is expected to occur only very rarely. In any other case, 
where DHS does not choose to place an arriving alien into removal 
proceedings under section 240 of the Act, this rule has no effect on 
family well-being, because the immigration judges will not be involved. 
DHS determinations made under the Agreement will not be reviewed by the 
Department of Justice.

List of Subjects

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
Services, Organization and function (Government agencies).

8 CFR Part 1208

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

8 CFR Part 1212

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

8 CFR Part 1235

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

8 CFR Part 1240

    Administrative practice and procedure and Aliens.

0
Accordingly, chapter V of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 
1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan 
No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. 
L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 
106-386; 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-
554, 114 Stat. 2763A-326 to -328.


0
2. Section 1003.42 is amended by adding new paragraph (h) to read as 
follows:


Sec.  1003.42  Review of credible fear determinations.

* * * * *
    (h) Safe third country agreement. (1) Arriving alien. An 
immigration judge has no jurisdiction to review a determination by an 
asylum officer that an arriving alien is not eligible to apply for 
asylum pursuant to a bilateral or multilateral agreement (the 
Agreement) under section 208(a)(2)(A) of the Act and should be returned 
to a safe third country to pursue his or her claims for asylum or other 
protection under the laws of that country. See 8 CFR 208.30(e)(6). 
However, in any case where an asylum officer has found that an arriving 
alien qualifies for an exception to the Agreement, an immigration judge 
does have jurisdiction to review a negative credible fear finding made 
thereafter by the asylum officer as provided in this section.
    (2) Aliens in transit. An immigration judge has no jurisdiction to 
review any determination by DHS that an alien being removed from Canada 
in transit through the United States should be returned to Canada to 
pursue asylum claims under Canadian law, under the terms of a safe 
third country agreement with Canada.
* * * * *

[[Page 69497]]

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
3. The authority citation for part 1208 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282.


0
4. Section 1208.4 is amended by adding new paragraph (a)(6) to read as 
follows:


Sec.  1208.4  Filing the application.

* * * * *
    (a) * * *
    (6) Safe third country agreement. Immigration judges have authority 
to consider issues under section 208(a)(2)(A) of the Act, relating to 
the determination of whether an alien is ineligible to apply for asylum 
and should be removed to a safe third country pursuant to a bilateral 
or multilateral agreement, only with respect to aliens whom DHS has 
chosen to place in removal proceedings under section 240 of the Act, as 
provided in 8 CFR 1240.11(g). For DHS regulations relating to 
determinations by asylum officers on this subject, see 8 CFR 
208.30(e)(6).
* * * * *

0
5. Section 1208.30 is amended by:
0
a. Revising paragraphs (a) and (e); and by
0
b. Removing and reserving paragraphs (c), (d), (f), and (g)(1).
    The revisions read as follows:


Sec.  1208.30  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), asylum officers have exclusive jurisdiction to 
make credible fear determinations, and the immigration judges have 
exclusive jurisdiction to review such determinations.
* * * * *
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and in making positive 
and negative credible fear determinations, see 8 CFR 208.30. The 
immigration judges will review such determinations as provided in 
paragraph (g)(2) of this section and 8 CFR 1003.42.
* * * * *

PART 1212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
6. The authority citation for part 1212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103.


0
7. Section 1212.5 is revised to read as follows:


Sec.  1212.5  Parole of aliens into the United States.

    Procedures and standards for the granting of parole by the 
Department of Homeland Security can be found at 8 CFR 212.5.

PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
8. The authority citation for part 1235 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note; 1103; 1183; 1201; 1224; 1225; 
1226; 1228.


0
9. The heading for part 1235 is revised to read as above.

0
10. Section 1235.3 is amended by revising paragraph (b)(4) introductory 
text and paragraph (b)(4)(i) to read as follows:


Sec.  1235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (4) Claim of asylum or fear of persecution or torture. (i) The DHS 
regulations at 8 CFR 235.3(b)(4) provide for referring an alien to an 
asylum officer if the alien indicates an intention to apply for asylum 
or expresses a fear of persecution or torture or a fear of return to 
his or her country.
* * * * *

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
11. The authority citation for part 1240 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; sec. 1101, Pub. L. 107-269, 116 Stat. 2135.


0
12. Section 1240.11 is amended by adding a new paragraph (g), to read 
as follows:


Sec.  1240.11  Ancillary matters, applications.

* * * * *
    (g) Safe third country agreement. (1) The immigration judge has 
authority to apply section 208(a)(2)(A) of the Act, relating to a 
determination that an alien may be removed to a safe third country 
pursuant to a bilateral or multilateral agreement (Agreement), in the 
case of an alien who is subject to the terms of the Agreement and is 
placed in proceedings pursuant to section 240 of the Act. In an 
appropriate case, the immigration judge shall determine whether under 
the Agreement the alien should be returned to the safe third country, 
or whether the alien should be permitted to pursue asylum or other 
protection claims in the United States.
    (2) An alien described in paragraph (g)(1) of this section is 
ineligible to apply for asylum, pursuant to section 208(a)(2)(A) of the 
Act, unless the immigration judge determines, by preponderance of the 
evidence, that:
    (i) The Agreement does not apply to the alien or does not preclude 
the alien from applying for asylum in the United States; or
    (ii) The alien qualifies for an exception to the Agreement as set 
forth in paragraph (g)(3) of this section.
    (3) The immigration judge shall apply the applicable regulations in 
deciding whether the alien qualifies for any exception under the 
Agreement that would permit the United States to exercise authority 
over the alien's asylum claim. The exceptions under the Agreement are 
codified at 8 CFR 208.30(e)(6)(iii). The immigration judge shall not 
review, consider, or decide any issues pertaining to any discretionary 
determination on whether the alien should be permitted to pursue an 
asylum claim in the United States notwithstanding the general terms of 
the Agreement, as such discretionary public interest determinations are 
reserved to DHS. However, an alien in removal proceedings who is 
otherwise ineligible to apply for asylum under the Agreement may apply 
for asylum if DHS files a written notice in the proceedings before the 
immigration judge that it has decided in the public interest to allow 
the alien to pursue claims for asylum or withholding of removal in the 
United States.
    (4) An alien who is found to be ineligible to apply for asylum 
under section 208(a)(2)(A) of the Act is ineligible to apply for 
withholding of removal pursuant to section 241(b)(3) of the Act and the 
Convention against Torture. However, the alien may apply for any other 
relief from removal for which the alien may be eligible. If an alien 
who is subject to section 208(a)(2)(A) of the Act is ordered removed, 
the alien shall be ordered removed to the safe third country in which 
the alien will be able to pursue his or her claims for asylum or

[[Page 69498]]

protection against persecution or torture under the laws of that 
country.

    Dated: November 22, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-26238 Filed 11-26-04; 8:45 am]
BILLING CODE 4410-30-P




						



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