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[Federal Register: November 29, 2004 (Volume 69, Number 228)]
[Rules and Regulations]               
[Page 69479-69490]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no04-13]                         


[[Page 69479]]

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


Part III





Department of Homeland Security





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



8 CFR Parts 208, 212, and 235



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; Final Rule



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





Department of Justice





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

8 CFR Part 1003 et seq.



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


[[Page 69480]]


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

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208, 212, and 235

[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: Final rule.

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

SUMMARY: This rule codifies specific terms of an agreement between the 
United States and Canada that permits the respective governments to 
manage which government decides certain aliens' requests for protection 
from persecution or torture pursuant to domestic implementation of 
international treaty obligations. This rule establishes U.S. 
Citizenship and Immigration Services (``USCIS'') asylum officers' 
authority to make threshold determinations concerning applicability of 
this agreement in the expedited removal context. In addition, this rule 
codifies the existing definitions of ``credible fear of persecution'' 
and ``credible fear of torture'' without altering those definitions.

DATES: This final rule is effective December 29, 2004.

FOR FURTHER INFORMATION CONTACT: Joanna Ruppel, Deputy Director, Asylum 
Division, Office of Refugee, Asylum, and International Operations, U.S. 
Citizenship and Immigration Services, 20 Massachusetts Avenue, NW, 
Washington, DC 20536; Telephone (202) 272-1663.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Validity of the Threshold Screening Process
III. Detention Issues
IV. Procedural Safeguards Under the Threshold Screening Interview 
Process: Arrivals from Canada
     Screening Process Guarantees
     Post-Interview Process
V. Adjudicating Exceptions to the Agreement
     Family-Based Exceptions
     Unaccompanied Minor Exception
     Public Interest Exception
     Valid Visa Exception
     Other Exceptions
VI. Procedures for Asylum Seekers Going to and Being Returned from 
Canada
     Process for Asylum Seekers Bound for Canada
     Process for Asylum Seekers Returned from Canada
     Cost of Processing Returned Asylum Seekers
VII. Monitoring Plans
VIII. Agreement Terms Unrelated to Processing Asylum Seekers Coming 
to the United States from Canada
     Resettlement under the Agreement
     Terminating the Agreement
IX. Miscellaneous
     Resolving U.S.-Canadian Differences in Interpreting the 
Agreement
     Defining ``land border port-of-entry'
     Aliens ``directed back'' from Canada
     Indirect refoulement
X. Conforming Amendment to Part 235 of Title 8 of the Code of 
Federal Regulations

I. Background

    On March 8, 2004, the Secretary of Homeland Security and the 
Attorney General promulgated proposed rules to implement terms of the 
``Agreement Between the Government of the United States of America 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''), which, consistent with section 
208(a)(2)(A) of the Immigration and Nationality Act (``Act'') (8 U.S.C. 
1158(a)(2)(A)), provide for the return of certain asylum seekers to the 
``country of last presence.'' 69 FR 10620, 69 FR 10627. The Agreement 
is available both on the USCIS Web site, http://www.uscis.gov, and the Web site for the U.S. Embassy in Canada, http://www.usembassycanada.gov/content/can_usa/safethirdfinal_agreement.pdf.
    The proposed rules outlined how the Department of Homeland Security 

(DHS) and the Department of Justice (DOJ) proposed to address the 
asylum, withholding of removal, and Convention Against Torture claims 
(``protection claims'') of aliens seeking to enter the U.S. at U.S.-
Canada land border ports-of-entry, or in transit through the U.S. 
during removal by the Canadian government, in accordance with the Safe 
Third Country Agreement. 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. As discussed in the 
Supplementary Information section in the preamble to those proposed 
rules, the Agreement allocates resources and provides for prescreening 
of asylum and related claims in certain instances during the expedited 
removal process, where the asylum officer would determine whether any 
of the Agreement's exceptions apply or whether aliens should be 
returned to Canada for consideration of their protection claims. The 
limited number of aliens arriving from Canada at land border ports-of-
entry or in transit during removal by the Canadian government who are 
placed in removal proceedings under section 240 of the Act (8 U.S.C. 
1229a) (instead of being processed through expedited removal 
procedures) would have the Agreement applied to them in the first 
instance by immigration judges of the Executive Office for Immigration 
Review (``EOIR''), as outlined in the DOJ proposed rule at 69 FR 10627 
et seq. In response to the DHS proposed rule, DHS received 7 sets of 
comments from non-governmental organizations (``NGOs'') and the Office 
of the United Nations High Commissioner for Refugees (``UNHCR''). While 
incorporating several of the comments, this final rule implements the 
basic approach discussed in the March 8 rule proposed by DHS.
    The following discussion of the comments received by DHS 
corresponds generally to the variety of issues raised by commenters and 
is arranged into the following categories: Validity of the threshold 
screening process identified in the proposed rule; issues related to 
detention of asylum seekers; procedural safeguards under the threshold 
screening process; adjudication of the Agreement's several exceptions 
to its general rule of returning certain asylum seekers to Canada; 
procedures for asylum seekers bound for and returned from Canada; 
monitoring of the Agreement's implementation and impact; and Agreement 
terms unrelated to processing asylum seekers coming to the United 
States from Canada. Within each category, the discussion summarizes the 
relevant comments and offers the Department's responses, including an 
explanation of any changes made to the rule. Following the discussion 
of the comments is an explanation of one minor conforming regulatory 
amendment included in the final rule to ensure that existing 
regulations governing the expedited removal process are consistent with 
the threshold screening interview mechanism adopted in DHS'' final 
rule. Many commenters took issue with the Agreement itself, challenging 
its wisdom on policy grounds. This

[[Page 69481]]

Supplementary Information to the final rule, while endeavoring to 
address each comment as fully as possible, does not engage in a policy 
debate about the Agreement itself.

II. Validity of the Threshold Screening Process

    One commenter indicated that creating a special process to assess 
the applicability of the Agreement and its exceptions would result in 
increased inefficiency and bureaucracy. The Department disagrees and, 
to the contrary, believes that the threshold screening process is the 
most efficient mechanism for implementing the Agreement. It will not 
create additional bureaucracy. The threshold screening process adopts 
existing processes from the credible fear process, will be a 
streamlined determination, and can be transitioned seamlessly to the 
credible fear process if an exception to the Agreement is found.
    Other commenters argued that the new threshold screening process is 
legally insufficient, if not contrary to existing laws, because it does 
not occur as part of the credible fear determination and does not 
provide for independent administrative review of negative decisions by 
immigration judges. These commenters have concluded that the proposed 
process does not, therefore, comport with statutory expedited removal 
provisions. Specifically, the commenters identify sections 
235(b)(1)(A)(ii) and 235(b)(1)(B) of the Act (8 U.S.C. 
1225(b)(1)(A)(ii), 1225(b)(1)(B)), which provide that asylum officers 
shall interview arriving aliens who are inadmissible under section 
212(a)(6)(C) or 212(a)(7) of the Act (8 U.S.C. 1182(a)(6)(C), 
1182(a)(7)) and who indicate either an intention to apply for asylum or 
a fear of persecution in order to determine whether such aliens have a 
``credible fear of persecution,'' and further provide that negative 
credible fear determinations may be reviewed by immigration judges. 
Similarly, arriving aliens who express a fear of torture are subject to 
these same procedures as a matter of regulation. 8 CFR 208.30(e).
    While the Department agrees that these provisions generally do call 
for the administration of credible fear interviews to those aliens in 
expedited removal processing who express an intent to apply for asylum 
or a fear of persecution or torture, a careful reading of the Act makes 
clear that credible fear interviews are not required for aliens subject 
to the Safe Third Country Agreement. Under section 208(a)(1) of the Act 
(8 U.S.C. 1158(a)(1)), any alien physically present in or arriving in 
the United States may apply for asylum in accordance with that section, 
or where applicable, section 235(b) of the Act (8 U.S.C. 1225(b)). The 
following paragraph, section 208(a)(2)(A) of the Act (8 U.S.C. 
1158(a)(2)(A)), however, creates an exception to this generally 
permissive asylum filing standard, revealing Congress' intent that an 
alien may not apply for asylum in accordance with section 235(b) (8 
U.S.C. 1225(b)) if the alien ``may be removed, pursuant to a bilateral 
or multilateral agreement, to a country * * * in which the alien's life 
or freedom would not be threatened. * * * Section 235(b)(1)(B)(ii) of 
the Act (8 U.S.C. 1225(b)(1)(B)(ii)) states that, when an alien 
successfully completes the credible fear interview process, ``the alien 
shall be detained for further consideration of the application for 
asylum.'' (emphasis added). Clearly, then, the credible fear interview 
process constitutes the initiation of the asylum application process 
described in section 208(a)(1) or the Act (8 U.S.C. 1158(a)(1)). For 
this reason, and in light of section 208(d)(5)(B)'s (8 U.S.C. 
1158(d)(5)(B)) authorization to promulgate regulations that impose 
``conditions or limitations on the consideration of an application for 
asylum,'' as long as they are ``not inconsistent with this Act,'' the 
Department finds the threshold screening interview process described in 
the proposed rule to be in accord with the Act.
    A closely related comment raised by some commenters is the request 
that the rule include an independent review or appeals process for 
asylum officer findings that an alien does not meet one of the 
Agreement's exceptions and is, accordingly, ineligible to pursue an 
asylum application via the credible fear interview process. The 
Department believes that, given the narrow legal and factual issues 
present in the threshold screening process, review of an asylum 
officer's threshold determination by a supervisory asylum officer will 
adequately serve to ensure that proper decisions are made on this 
limited issue. In light of the comments received, the requirement that 
a supervisory asylum officer must concur in the asylum officer's 
finding that the alien is subject to return to Canada under the 
Agreement has been expressly added to the final rule at 8 CFR 
208.30(e)(6)(i).

III. Detention Issues

    Several commenters addressed the issue of detention. For instance, 
some commenters suggested adding to the rule the statement that asylum 
seekers subject to the Agreement generally should not be detained. 
Another commenter advocated a mechanism for the Department to refer 
individuals entering the United States or being returned by Canada 
under the Agreement to NGOs in the United States, to facilitate 
alternatives to detention. Commenters also expressed concern about the 
detention of returnees from Canada. One commenter would have the rule 
prohibit detention of this group under any circumstances, while another 
suggested that the Department only detain returnees under exceptional 
circumstances, and, if detention is necessary, to avoid detention in 
local and county jails. The Agreement does not amend the detention 
authority under sections 236, 236A and 241 of the Act (8 U.S.C. 1226, 
1226a, 1231) or require that DHS alter its current detention policies 
or practices. No amendments to the detention regulations were proposed 
in the proposed rule, and any changes in these regulations would 
require a new proposed rule. After reviewing the comments, DHS is not 
convinced that there is any reason to amend the detention provisions of 
the regulations because of the implementation of the Agreement or this 
rule. The comments do not articulate any legitimate basis for treating 
aliens without lawful immigration status in the United States who are 
returned under the Agreement differently from other asylum seekers in 
the United States without lawful immigration status.

IV. Procedural Safeguards Under the Threshold Screening Interview 
Process: Arrivals From Canada

Screening Process Guarantees

    Several commenters were concerned that the rule does not specify 
that individuals arriving from Canada would receive the same procedural 
safeguards in the threshold screening interview process that are 
provided to arriving aliens who receive credible fear interviews. In 
particular, the Department was urged to incorporate, in the final rule, 
the following such safeguards: Option to consult with a person of the 
alien's choosing; sufficient time to contact a consultant, relative, or 
relevant advocates, at no expense to the U.S. government; sufficient 
time to prepare for the eligibility interview; an assurance that the 
interview would not occur sooner than 48 hours after the asylum 
seeker's arrival at a detention facility, unless the individual waives 
this preparation period; the ability to request that the threshold 
screening interview be postponed, which the Department should grant if 
there are good reasons to do so; use of an

[[Page 69482]]

interpreter; explanation of and guidance on the interview procedure; 
and the issuance of a reasoned written decision.
    The Department has clarified, in the final rule, that the same 
safeguards accorded to aliens who are eligible for a credible fear 
determination will be accorded to aliens who receive threshold 
screening interviews. However, the suggestion that the threshold 
screening interview be postponed upon an alien's request has no 
parallel in the sections of 8 CFR 208.30 outlining the credible fear 
process. Also, this suggestion would compromise the principle 
underlying the Agreement that aliens be returned promptly to the 
country of last presence; therefore, it will not be incorporated into 
the final rule. In appropriate cases, the Department may exercise its 
discretion to delay the threshold screening process where the delay is 
justified.
    One commenter recommended that the final rule include a statement 
requiring the Department to accommodate reasonable requests for 
assistance in securing evidence in support of an asylum seeker's claim 
arising from the asylum seeker's detention. For example, an asylum 
seeker may need access to a telephone or fax machine to secure evidence 
establishing relationships, a family member's legal status, or the 
asylum seeker's age. The Department currently provides access to 
telephones to detained asylum seekers who are subject to expedited 
removal. If additional assistance is needed, such as access to a fax 
machine, an asylum officer may be able to facilitate such access. 
However, the Department does not believe it is necessary to incorporate 
this suggestion into the final rule, because it is operational in 
nature and instead will be incorporated into field guidance upon 
implementation of the rule.

Post-Interview Process

    One commenter suggested that the rule should clarify that return to 
Canada under the Agreement would not render a person inadmissible to 
the United States on that basis. While the Agreement does not address 
matters of inadmissibility, the Department may only remove aliens from 
the United States using a mechanism provided by Congress. Generally, 
for aliens arriving in the United States without valid documents 
required for admission, expedited removal under section 235(b) of the 
Act (8 U.S.C. 1225(b)) is the removal mechanism provided by Congress. A 
removal order under section 235(b) of the Act would, as a matter of 
law, constitute a temporary inadmissibility ground under section 
212(a)(9)(A)(i) of the Act (8 U.S.C. 1182(a)(9)(A)(i)). Waivers and 
exceptions to this inadmissibility ground do exist and will be 
considered by the Department on a case-by-case basis, consistent with 
existing regulations and operational directives. Similarly, discretion 
exists on the part of Customs and Border Protection (``CBP'') officers 
to allow aliens to withdraw their applications for admission (so that 
they would face no admissibility bar to a subsequent admission to the 
United States) and this discretion will continue to be used on a case-
by-case basis.
    Another commenter recommended that either the final rule or 
operating procedures should include a mechanism for reconsideration by 
the Department of its decision to remove an asylum seeker to Canada 
following a decision that he or she does not qualify for one of the 
Agreement's exceptions if new evidence subsequently becomes available. 
The Department plans to continue working with its Canadian counterparts 
to establish common procedures to resolve matters like these at the 
local level through operational guidance.

V. Adjudicating Exceptions to the Agreement

    A substantial number of the comments to the proposed rule concerned 
the interpretation and adjudication of Agreement exceptions for asylum 
seekers arriving at land border ports-of-entry. These comments 
corresponded roughly to the specific exceptions themselves, and can be 
addressed with reference to the following categories: family unity; 
unaccompanied minors; public interest; validly issued visas; and other 
exceptions. Many of the concerns evident from these comments were 
raised initially at meetings with NGOs, including a public meeting in 
August 2002, before the Agreement was signed. The Department carefully 
considered several of the issues outlined in these comments at that 
time and incorporated many suggestions into the text of the Agreement.

Family-Based Exceptions

    Many commenters believe that the rule should define ``family 
member'' broadly and in a more culturally sensitive manner that 
reflects the reality of the refugee experience. For example, one 
commenter recommended considering ``de facto'' family members as 
eligible anchor relatives within this exception, or, in the 
alternative, as part of the public interest exception. The definition 
of ``family member'' was the subject of prolonged discussion while 
negotiating the Agreement. The United States delegation advocated and 
succeeded in achieving a definition much broader than the class of 
family members recognized for other purposes under United States and 
Canadian immigration law. During negotiations, both Canada and the 
United States took into account the reality that different cultures 
define ``family member'' differently. Given the specificity of the 
Agreement's enumerated relationships in its ``family member'' 
definition, the Department will not now, in effect, unilaterally amend 
the Agreement's definition by means of this rule to include additional 
individuals. The Department's position is that using the regulatory 
process to create new definitions at this stage would serve to 
undermine the compromise represented by this carefully negotiated, 
bilateral agreement.
    Other commenters suggested including ``cousins'' as part of the 
``family member'' definition in the rule. As explained above, the 
Agreement's list of who may qualify as an anchor ``family member'' is 
not subject to amendment by the rule. For the same reason, the 
Department will not include, as suggested in a separate comment, 
``other close relatives'' to the list of family members.
    Several commenters recommended that the rule specifically include a 
``common-law partners'' exception, as it is included in the Canadian 
regulations' definition of ``family member.'' Canada has included 
common-law partners in the definition of ``family member'' in the 
Canadian regulations implementing the Agreement because this 
relationship has often been recognized as a matter of Canadian law. 
Article 1 of the Agreement provides that each Party will apply the 
Agreement's family member exceptions in a manner that is consistent 
with its national law. While valid foreign marriages, including common 
law marriages, are generally given effect under U.S. immigration law, 
see Matter of H-, 9 I&N Dec. 640, 641 (BIA 1962); but see section 
101(a)(35) of the Act (8 U.S.C. 1101(a)(35)), U.S. federal law 
precludes use of the terms ``marriage'' or ``spouse'' to refer to same-
sex partnerships. See Defense of Marriage Act, Public Law 104-199, 
section 3, 110 Stat. 2419 (1996) (providing that, for purposes of 
federal law, ``'marriage'' means only a legal union between one man and 
one woman as husband and wife, and * * * `spouse' refers only to a 
person of the opposite sex who is a husband or a wife.''). Because the 
Department cannot promulgate regulations that are contrary

[[Page 69483]]

to law, the Department did not adopt the commenters' suggestion to add 
a ``common-law partner'' interpretation of the term ``spouse,'' as used 
in the Agreement's family member exceptions.
    A few commenters believe that the rule should eliminate the 
Agreement's age and immigration status limits on anchor relatives, 
reasoning that the limits result in separating families when children 
cannot serve as anchors for their parents. Both countries have 
expressed their concern for reuniting separated families. To that end, 
both intend to work with the UNHCR and NGOs to monitor the Agreement's 
effect, addressing this potential problem operationally rather than by 
regulation. A key reason that age limits were included in the 
Agreement's family unity exceptions was that neither government wanted 
to trigger an increase in the smuggling and trafficking of minors, sent 
ahead by family members for the purpose of serving as anchors in either 
country. Further, the requirement that anchor relatives hold lawful, 
non-visitor immigration status derives from the negotiated Agreement 
terms, see art. 4, para. 2(a), which will not be modified through the 
rule-making process.

Unaccompanied Minor Exception

    Some commenters felt that the rule should expand the Agreement's 
definition of ``unaccompanied minor'' to include a minor who is 
``separated from both parents and is not being cared for by an adult 
who by law has the responsibility to do so.'' The Department declines 
to incorporate this change to the Agreement's definition into the final 
rule. The Agreement's definition of ``unaccompanied minor,'' as 
explained in the Supplementary Information accompanying the proposed 
rule, differs from the definition customarily used for purposes of U.S. 
immigration processing. As previously explained, the definitions in the 
Agreement were carefully negotiated with the Canadian government and 
the Department will not use the rule-making process to alter 
unilaterally the clear definitions in the Agreement. However, by 
applying DHS'' customary operational definition to unaccompanied minors 
seeking asylum so that they are generally referred for a hearing by an 
immigration judge in proceedings under section 240 of the Act (8 U.S.C. 
1229a), the Department is providing them ample process to explain 
whether they meet one of the Agreement's exceptions and to present 
their protection claims.
    The same commenters also recommended that the rule should shift the 
burden of proof concerning the location of an unaccompanied minor's 
parents from the unaccompanied minor to the government, requiring the 
government to demonstrate that the unaccompanied minor is in the care 
of his or her parents or is following to join them. While the 
Department understands the need to proceed with heightened restraint 
and sensitivity in the cases of unaccompanied minors, there is concern 
that this recommendation could adversely affect the unaccompanied minor 
by resulting in fact-finding delays before a final determination. The 
child likely will have more information than DHS as to the location of 
his or her parents and therefore it is more appropriate for the child 
to bear the burden of proof in establishing the parents' locations. 
Moreover, aliens in removal proceedings--regardless of age--generally 
bear the burden of proving their admissibility to the United States, 8 
U.S.C. 1129a(c)(2), and, similarly, applicants for asylum, withholding 
of removal, and protection under the Convention Against Torture, bear 
the burden of proof to establish eligibility, even in cases where the 
applicant is a child. The commenters did not provide sound rationales 
for shifting the burden of proof for purposes of establishing that an 
exception to the Agreement applies.
    These commenters also suggested that the rule include a mechanism 
for determining a child's relationship to an accompanying adult or to 
individuals present in the United States or Canada, including an 
interview with a child welfare specialist, if the child arrives at the 
border with an individual who is not his or her legal guardian. The 
mechanism, they suggest, should include procedures to identify 
potential family members and determine their suitability to serve as 
the child's guardian. The Department agrees that this is an area 
requiring further consideration; however, the issues surrounding 
identification of individuals accompanying alien children and 
verification of relationships between adults and children are broader 
than the scope of this rule and are not unique to those children 
subject to this rule. These issues may be raised at all borders, and 
all ports-of-entry, even in the case of aliens with lawful status here. 
Therefore, these issues would be more appropriately addressed 
systemically, as a coordinated effort among the Department's various 
agencies to create a uniform approach, rather than within this rule. 
Consequently, the Department declines to incorporate the process 
proposed by commenters within the rule.
    Many commenters, as previously stated, urged the Department to 
consider ``separated children,'' who are not with either parent or with 
an adult responsible for their care, as part of the discretionary 
public interest exception under Article 6 of the Agreement. The 
Department is sensitive to the unique issues facing unaccompanied 
minors and will proceed carefully in cases where an unaccompanied minor 
arriving in the United States appears to be a ``separated child.'' The 
Department will consider, on a case-by-case basis, whether such a child 
might meet the Agreement's public interest exception.

Public Interest Exception

    Many of the commenters recommended that the rule should state that 
``humanitarian concern is a public interest.'' The Department believes 
that the Agreement's public interest exception is best administered 
through operational guidance and on an individualized, case-by-case 
basis, but does acknowledge that ``humanitarian concern'' is certainly 
an important consideration to factor in to a public interest 
assessment.
    Some commenters suggested that the rule include a non-exhaustive 
list of categories that would merit consideration under the public 
interest exception. Three of the suggested categories--common-law 
spouses, de facto family members, and separated children with parents 
or legal guardians in the U.S. who are ineligible to serve as anchors--
were addressed above in the discussion replying to comments about the 
proposed rule's sections concerning the ``family member'' and 
``unaccompanied minor'' exceptions.
    Other categories suggested by commenters for consideration under 
the public interest exception include:
    a. Cases where effective protection cannot be guaranteed in Canada 
because of that country's asylum laws; and, similarly, cases where U.S. 
law and practice are not consistent with Canadian law and practice;
    b. Cases in which the anchor relatives are under age 18 and have 
pending asylum applications;
    c. Cases of survivors of torture; and
    d. Cases of individuals with physical and psychological health 
needs.
    Issues of minor anchor relatives, past torture, and health needs 
are some of the factors that may be considered under the Agreement's 
public interest exception, along with all other relevant circumstances, 
on a case-by-case basis. The intent behind this provision of the 
Agreement was to allow each

[[Page 69484]]

government to make case-by-case determinations with broad discretion. 
Had the parties' intent been to include the broad categories of 
individuals listed above, the categories would have been spelled out in 
the Agreement in the same manner as the other exceptions.
    For reasons stated in the Supplementary Information to the proposed 
rule, the Department does not consider differences in Canadian and U.S. 
protection laws germane to decisions made under the Agreement. The 
commenters urged, with respect to this suggestion, that the rule 
include a mechanism for the UNHCR and NGOs to help the Department 
analyze Canadian law and practice, including approval rates by 
nationality and basis for approval, to ensure that the Department 
exercises discretion in cases where there are discrepancies with U.S. 
law. The Department will not apply the public interest exception in a 
manner that would undermine the Agreement's allocation of 
responsibility for adjudication of protection claims. Also, as 
explained in the Supplementary Information to the proposed rule, 
differences in our protection systems were contemplated by the United 
States and Canada during negotiations. In either country, asylum 
seekers will have their protection claims fully and fairly considered.
    Other commenters suggested specific procedures in the rule 
concerning the exercise of discretion, in the public interest, to allow 
an individual to pursue a protection claim in the United States. One 
recommended explaining who specifically may exercise this discretion, 
and the other called for a clear procedure between EOIR and DHS to 
ensure that the Department properly considers cases pending before EOIR 
for the public interest exception. In response to these suggestions, 
the final rule has been amended at 8 CFR 208.30(e)(6)(iii)(F) to 
specify that the Director of USCIS, or the Director's designee, will be 
responsible for DHS determinations made under the Agreement's public 
interest exception. Any party wishing to present a case for 
consideration under this exception should provide relevant case 
information to the Director's office or that of his or her designee.

Valid Visa Exception

    One commenter noted that the rule should define ``validly issued 
visa'' so as not to link the validity of its issue to the asylum 
seeker's presumed subjective intentions. For example, U.S. immigration 
authorities have determined in some instances that valid tourist or 
business visas were obtained by ``fraud'' because of the visa holder's 
true intent to seek asylum. For the limited purposes of applying this 
exception to the Agreement, USCIS will construe the term ``validly 
issued'' to refer to visas that are genuine (i.e., not counterfeit) and 
were issued to the alien by the U.S. government.

Other Exceptions

    One commenter forwarded comments made in response to a review of an 
earlier draft of the Agreement in 2002, in which it recommended that, 
to avoid the separation of families and minimize social and economic 
costs for states, the Agreement add a transit exception. Additionally, 
the commenter suggested a ``community support contact'' exception, 
which could include friends or colleagues willing to submit statements 
about their willingness to support the asylum seeker during the 
process. A transit exception would effectively invalidate the 
Agreement, as the Agreement's stated purpose is quite clearly to return 
asylum seekers to the ``country of last presence.'' With respect to the 
``community support contact'' exception, the Department reiterates that 
the exceptions to the Agreement were determined through careful 
negotiations with the Canadian government, and that to create 
additional exceptions through rule-making would serve to undermine the 
process. Therefore, the Department declines to adopt this 
recommendation.

VI. Procedures for Asylum Seekers Going to and Being Returned From 
Canada

Process for Asylum Seekers Bound for Canada

    Several commenters recommended that the rule include a mechanism 
whereby the Department could refer Canada-bound asylum seekers to NGOs 
in the United States for assistance in locating relatives and providing 
advice regarding eligibility before arriving at a land border port-of-
entry. The commenters do not explain how the Department would identify 
these asylum seekers and implement this recommendation. While the 
Department appreciates the participation of NGOs in the process to date 
and will continue to seek their assistance to educate populations 
likely to be affected by the Agreement, it will not adopt this 
recommendation, because it would be administratively impracticable to 
implement and could unnecessarily delay travel for thousands of 
individuals crossing from the United States to Canada. U.S. officials 
generally do not stop and address individuals leaving the United States 
to go to Canada. Even if immigration officials were to stop individuals 
traveling from the United States into Canada, it is unclear how they 
would identify those who intend to seek asylum in Canada--certainly a 
minimal portion of individuals crossing the border each day--in order 
to refer them to an NGO.

Process for Asylum Seekers Returned From Canada

    Several commenters expressed a desire to have the rule clarify the 
process affecting those asylum seekers who are determined to be 
ineligible by Canada and returned to the United States--the group 
anticipated to constitute the majority of asylum seekers affected by 
the Agreement. One non-governmental organization recommended that the 
rule guarantee that these individuals be exempt from the expedited 
removal process.
    The Department declines to codify the process affecting those 
returned to the United States under the Agreement, because existing 
regulations already govern how they will be treated by DHS. For 
purposes of U.S. immigration law, these returnees will be in the same 
position they would be in had they not left the United States. As the 
Department stated in the Supplementary Information to the proposed 
rule, individuals returned from Canada to the United States, with the 
rare exception noted below, will not be subject to expedited removal 
because they will not meet the definition of ``arriving alien.'' 
Depending on the individual's immigration status in the United States, 
he or she may be subject to removal proceedings under section 240 of 
the Act (8 U.S.C. 1229a). However, it is not possible, practical or 
advisable for the Department to codify such a guarantee in this rule. 
There may be a rare circumstance in which the expedited removal 
provisions of the Act would apply. For example, someone initially 
paroled into the United States may attempt to enter Canada and then be 
returned to the United States after his or her parole period here 
expired. Such a person, as an individual whose parole period has 
expired, may be subject to expedited removal. 8 U.S.C. 1182(d)(5)(A), 
1225(a)(1)-(b)(1)(A)(i); 8 CFR 1.1(q).
    Many commenters suggested that the rule include a mechanism to 
enable Canada, in the event that it decides that the Agreement 
exceptions are inapplicable to an individual alien, to address any 
possible errors in its decision or consider new information offered by 
the alien that he or she

[[Page 69485]]

qualifies for an exception and is eligible to present a protection 
claim in Canada. DHS regulations do not govern Canadian authorities. It 
would be inappropriate for DHS regulations to outline a mechanism for 
the Canadian authorities to correct errors or address new information. 
Nonetheless, the Canadian and United States governments have agreed to 
consult with each other on these matters and to address them 
operationally.
    One commenter also stressed that, in this context, the Department 
should release detainees or provide transport to the nearest land 
border port-of-entry if Canada agrees to reconsider a claim and 
requires the asylum seeker's presence at the border. Release of 
detainees will be determined on a case-by-case basis, depending on the 
facts of the case and applicability of immigration laws. Should an 
individual be released, the logistics for how that person will get to 
the border is best determined on a case-by-case basis and through 
operational, as opposed to regulatory, guidance.

Cost of Processing Returned Asylum Seekers

    The majority of the commenters disagreed with the proposed rule's 
assessment of the costs that will result from the rule's 
implementation, as outlined in the proposed rule's determination made 
under Executive Order 12866. They allege that certain tangible costs--
including increases in adjudications, detention, Border Patrol 
deployment, and criminality--were not adequately addressed. They argue 
that, among the intangible costs of this Agreement that were ignored by 
the proposed rule, are the increased risks to life and safety of those 
seeking to enter either country outside land border ports-of-entry, and 
the potential for the Agreement to attract more smugglers and 
traffickers, which would make this land border more dangerous.
    The costs identified in discussing Executive Order 12866 were the 
costs associated with implementation of the provisions proposed in the 
rule, not the costs associated with the Agreement itself. The proposed 
and final rules are focused solely on asylum seekers seeking to enter 
the United States who may be returned to Canada pursuant to the 
Agreement, not those who are returned from Canada pursuant to the 
Agreement or who seek to cross the border illegally. As such, those 
costs were properly not considered in addressing Executive Order 12866. 
However, the United States Government carefully considered all of the 
potential costs identified by the commenters before it entered into the 
Agreement and determined that the benefits of the Agreement outweigh 
its costs.

VII. Monitoring Plans

    Nearly all of the commenters recommended that the rule explicitly 
refer to the UNHCR's monitoring role, as specified in Article 8 of the 
Agreement. They added that the rule should specify exactly what type of 
information the UNHCR will receive, such as numbers of applicants, 
their ages, their countries of origin, and the disposition of their 
eligibility and credibility determinations. They also recommended that 
the rule establish a timetable for the reports, preferably quarterly or 
whenever a special situation warrants one. In addition, the commenters 
recommended that the rule authorize the UNHCR to monitor eligibility 
and credibility determinations and to intercede in cases in which it 
believes erroneous decisions were made. The same commenters also felt 
that the rule should allow NGOs to operate as the UNHCR's implementing 
partners to monitor the Agreement.
    The Department has not incorporated these recommendations into this 
rule, but plans to take them into consideration when finalizing its 
arrangements with Canada and the UNHCR concerning monitoring of the 
Agreement. The Department also would welcome the assistance and input 
of NGOs. It is fully the intent of the Department to abide by the 
Agreement, which, at Article 8, provides that ``The Parties shall 
cooperate with UNHCR in the monitoring of this Agreement and seek input 
from non-governmental organizations.'' The Department values the 
longstanding consultative, cooperative relationship the UNHCR has had 
with the U.S. government, which includes monitoring the United States' 
application of the Convention Relating to the Status of Refugees, Jul. 
28, 1951, 189 U.N.T.S. 150 (``Refugee Convention''). For example, the 
UNHCR recently monitored and analyzed the expedited removal process and 
made several useful recommendations for the Department. However, the 
Department considers it inappropriate to codify the nature of this 
relationship, or the relationship between the Department and the NGO 
community, in these rules. Details of monitoring plans often change and 
develop over time, as unforeseen events arise, and those involved in 
the monitoring plan identify methods, consistent with evolving events, 
to better gather and analyze data. As such, it is more appropriate to 
include details of such plans in formal action plans and memoranda. One 
comment suggested that the rule include a monitoring plan concerning 
smuggling and trafficking developments. As stated earlier, the 
Department is aware of the potential for increased smuggling and 
trafficking after the Agreement is implemented and intends to monitor 
these developments. The Department does not believe, however, that it 
is appropriate to codify such a monitoring plan in regulations for the 
same reasons noted above.

VIII. Agreement Terms Unrelated to Processing Asylum Seekers Coming to 
the United States From Canada

Resettlement Under the Agreement

    Most commenters wanted the rule to include details concerning the 
implementation of the resettlement side agreement addressed in Article 
9 of the Agreement. Another commenter recommended that the Department 
of State introduce its own proposed rule to implement the resettlement 
agreement.
    This comment concerns an issue separate and distinct from that of 
returning asylum seekers to the country of last presence. The scope of 
this rule will remain limited to implementing the Agreement's terms as 
they concern two limited categories of asylum seekers: Those seeking 
entry to the United States at a land border port-of-entry on the 
Canadian border and those who seek protection while being removed from 
Canada and transiting through the United States.

Terminating the Agreement

    One commenter suggested that the rule include criteria to determine 
whether the Agreement should be cancelled because of negative impacts, 
particularly any increase in smuggling or trafficking. Another made a 
similar, though less specific suggestion, that the rule should include 
procedures for revising or terminating the Agreement, should that prove 
necessary. One commenter added that the Department of State should 
propose its own separate rule concerning the procedures for suspending 
or terminating the Agreement, including adequate or appropriate 
termination grounds.
    With respect to termination procedures, Article 10 of the Agreement 
between the United States and Canada specifically provides that 
termination may occur with six months' written notice from either 
party, and that three months' written notice would result in 
suspension. It would be inappropriate for the U.S. Government to 
negotiate an Agreement with Canada and then unilaterally adopt specific 
criteria that would result in the Agreement's termination. The efficacy 
and ongoing commitment to an international

[[Page 69486]]

agreement is a matter of foreign policy of the United States, the 
proper subject of diplomacy, and inappropriate for regulation under the 
Administrative Procedure Act (5 U.S.C. 551-59, 701-06, 1305, 3105, 
3344, 5372, 7521).

IX. Miscellaneous

Resolving U.S.-Canadian Differences in Interpreting the Agreement

    Most commenters agreed that the rule should provide a detailed 
mechanism to resolve differences between Canada and the United States 
regarding the interpretation and implementation of the Agreement. In 
accordance with the second paragraph of Article 8 of the Agreement, 
which provides that standard operating procedures ``shall include 
mechanisms for resolving differences respecting the interpretation and 
implementation of the terms of this Agreement,'' the Department intends 
to cooperate with its Canadian colleagues to address and resolve 
differences in the same spirit in which the Agreement was negotiated. 
As reflected in the Agreement itself, resolution of such differences is 
more appropriately addressed through operating procedures than through 
the promulgation of regulations.

Defining ``Land Border Port-of-Entry''

    Over half of the commenters suggested that this rule provide a 
definition of ``land border port-of-entry,'' as that term is used in 
the Agreement. Prior regulatory attempts to define ``port-of-entry'' 
have done so in reference to geographical locations where federal 
officers have authority to perform their official functions. For 
example, in the customs regulations at 19 CFR 101.1, this term simply 
``refer[s] to any place designated by Executive Order of the President, 
by order of the Secretary of Treasury, or by Act of Congress, at which 
a Customs officer is authorized to * * * enforce the various provisions 
of the Customs and navigation laws.'' Pursuant to this approach of 
port-of-entry designation, these regulations enumerate specific ports-
of-entry that have been designated as ``Customs port of entry.'' 19 CFR 
101.3(b)(1). Existing immigration regulations take a similar approach, 
defining ``ports-of-entry'' with an exhaustive list of locations, 
broken down into three ``classes.'' 8 CFR 100.4(c)(2). These 
definitional approaches reveal the difficulty of providing one uniform 
definition of ``port-of-entry.'' Indeed, beyond the fact of CBP 
officers' presence, ``ports-of-entry'' can vary in nearly every way 
imaginable. For instance, some ports-of-entry may sit on federally 
owned property, while others may be located on private or municipally 
owned property. Similarly, some land ports-of-entry border waterways or 
bridges, while others are located on busy highways or railroad tracks, 
while still others are situated in remote, rural areas. Given the 
impracticability of a one-size-fits-all definitional approach to ``land 
border ports-of-entry,'' the Department will rely on the current 
definitions of 8 CFR 100.4(c)(2) and 19 CFR 101.3(b)(1) in implementing 
the Agreement. Thus, where an alien arrives at a ``port-of-entry,'' as 
designated in one of these regulatory provisions, which is located at 
the shared U.S.-Canada border, the alien will be subject to the 
Agreement. Aliens apprehended in the immediate vicinity of such ports-
of-entry attempting to avoid inspection will, where reasonable, be 
regarded as having ``arrive[d] at a land border port of entry'' and, 
consequently, be subject to the Agreement. Finally, the Department 
intends to work closely with the Canadian government to provide 
operational guidance concerning the Agreement's applicability in 
marginal cases.

Aliens ``Directed Back'' From Canada

    Two commenters raised the issue of aliens ``directed back'' by the 
Canadian government pending an interview by Canadian immigration 
officials. These commenters explained that, while Canadian authorities 
generally interview an alien who requests protection at the time he or 
she seeks to enter Canada from the United States, Canadian authorities 
have had occasion to direct such aliens back to the U.S. for future 
interview appointments in Canada during periods of increased attempted 
migration that outstrip Canadian processing resources. According to 
these commenters, such an increase is possible during the period 
immediately preceding Agreement implementation. The commenters have 
therefore requested that the Department work to accommodate such 
aliens' attempts to enter Canada for a consideration of their 
protection claims. The Department will not adopt this suggestion. As 
discussed in the Supplementary Information to the proposed rule and, 
again, earlier in the Supplementary Information to this final rule, 
aliens who unsuccessfully attempt to enter Canada do not alter their 
immigration status by the attempted entry. Thus, if an alien who is 
present in the U.S. without having been inspected and admitted (or 
paroled) by an immigration officer unsuccessfully attempts to enter 
Canada, then he or she remains an unlawfully present alien subject to 
removal from the United States under sections 212(a)(6)(A)(i) and 
240(a) of the Act (8 U.S.C. 1182(a)(6)(A)(i), 1229a(a)), just as if an 
immigration officer had apprehended the alien before he or she sought 
to enter Canada. An alien's appointment with Canadian immigration 
officials, while relevant to the Department's prosecutorial discretion 
concerning any decision to place the alien in removal proceedings, does 
not confer legal status upon an unlawfully present alien.

Indirect Refoulment

    One commenter argued that returning aliens to Canada under the 
Agreement would constitute ``indirect'' refoulment, and would therefore 
violate U.S. obligations under the Refugee Convention and the Protocol 
Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.S. 6223 
(``Refugee Protocol''). The Department disagrees. Article 33 of the 
Refugee Convention obligates the U.S., through its accession to the 
Refugee Protocol, not to ``expel or return (`refouler') a refugee in 
any manner whatsoever to the frontiers of territories where his life or 
freedom would be threatened on account of his race, religion, 
nationality, membership of a particular social group or political 
opinion.'' (emphasis supplied). Absent some claim that an alien's life 
or freedom would be threatened in Canada, which the commenter did not 
suggest, the return of the alien to Canada for a full and fair 
consideration of his or her protection claims is consistent with U.S. 
obligations.

X. Conforming Amendment to 8 CFR Part 235

    In preparing this final rule, the Department determined that 8 CFR 
235.3(b)(4) must also be amended to reflect the proposed rule's use of 
a threshold screening interview mechanism preceding the initiation of 
credible fear interviews for those aliens in expedited removal 
proceedings who are subject to the Safe Third Country Agreement. This 
existing regulatory provision explicitly makes reference to a CBP 
officer's referral of protection claims for a ``credible fear'' 
determination under 8 CFR 208.30. As aliens subject to expedited 
removal who are covered by the Agreement must first pass a threshold 
screening interview to determine whether their protection claims may be 
considered in the U.S., 8 CFR 235.3(b)(4) has been revised to refer 
more generally to 8 CFR 208.30 without reference to the credible fear 
process. This amendment ensures that the expedited removal regulations 
conform

[[Page 69487]]

to the threshold screening interview process explained in the proposed 
rule.

Regulatory Flexibility Act

    DHS has reviewed this rule in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)) and by approving it, DHS certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. This rule, which relates to 
asylum claims, applies to individual aliens only. As such, a 
substantial number of small entities, as that term is defined in 5 
U.S.C. 601(6), will not be affected by the rule.

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 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 
rule justify its costs.
    The rule implements a bilateral agreement that allocates 
responsibility between the United States and Canada for processing 
claims of certain asylum seekers by codifying the process by which 
individuals seeking entry into the United States, or being removed by 
Canada in transit through the United States, may be returned to Canada 
pursuant to the Agreement. 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 provides 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 Canada 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 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 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. 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 fear process.
    The Executive Order 12866 cost analysis captures the costs which 
apply to those instances where an alien requests protection from the 
United States government under one of two scenarios: when arriving at a 
port-of-entry on the United States-Canada land border; or, when 
transiting through the United States as part of the Canadian 
government's effort to remove the alien to a third country. In either 
scenario, the rule provides asylum officers with authority to make 
basic, threshold screening determinations about how the Agreement 
applies to the alien. Although additional costs may be incurred as part 
of the Safe Third Country Agreement between the United States and 
Canada, the costs discussed in the Executive Order 12866 are limited to 
those costs arising under the two scenarios outlined in the rule and 
not the cost impact of the overall Agreement between the two countries.
    The Agreement provides for a threshold determination to be made 
concerning which country will assume responsibility for processing 
claims of asylum seekers. This rule only clarifies the threshold 
screening determination for a United States asylum officer when 
determining whether an alien should be returned to Canada. It is 
unclear how many individuals will seek asylum in the United States from 
Canada. Similarly, the Agreement 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. The Department does not 
know how many asylum seekers Canada will return to the United States. 
As discussed in the proposed rule and above, individuals returned from 
Canada to the United States will be in the same position as they would 
be in had they not sought entry in Canada. This analysis is beyond the 
purview of the rule. However, the Department will continue to monitor 
the costs associated with handling asylum seekers at land border ports-
of-entry.
    The Department recognizes that there have been pre-existing 
periodic costs associated with the departure of aliens from the United 
States to Canada for purposes of seeking asylum, particularly during 
the period in which the National Security Entry-Exit Registration 
System (NSEERS) was operating. These costs arose when, during a period 
of increased attempted migration to Canada from the United States, the 
Government of Canada decided not to admit asylum seekers until they 
could be scheduled for interview appointments. The Department 
recognizes that many of these costs were directly borne by aliens, 
State and local agencies, and nonprofit organizations. While costs 
similar to those incurred in the past may be borne by aliens attempting 
to enter Canada before the

[[Page 69488]]

Agreement becomes effective, they are not affected by the terms of this 
rule. However, the Department will continue to monitor the costs 
associated with handling asylum seekers at land border ports-of-entry.
    The rule benefits the United States because it enhances the ability 
of the United States and Canada to manage, in an orderly fashion, 
asylum claims brought by persons crossing our common border. By 
implementing the Agreement, the 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.

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 (8 U.S.C. 1158(a)(2)(A)). The threshold screening interview is 
considered an information collection under the Paperwork Reduction Act 
(PRA) of 1995. On March 8, 2004, the Department of Homeland Security, 
published a proposed rule in the Federal Register to provide USCIS 
asylum officers' with authority to make threshold determinations 
concerning applicability 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. In the 
Supplementary Information in the proposed rule under the heading 
``Paperwork Reduction Act'' the USCIS published a 60 day notice 
encouraging the public to submit comments specifically to the 
information collection requirements contained in 8 CFR 208.30. The 
USCIS did not receive any comments on the information collection 
requirements. Accordingly, the USCIS has submitted an information 
collection package to OMB in accordance with the PRA and OMB has 
approved this information collection.

Family Assessment Statement

    The Department has reviewed this rule 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, the Department has assessed this action in accordance with 
the criteria specified by section 654(c)(1). In this 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 (``anchor relative'') 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 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 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 rule will have a negative effect resulting in 
the separation of family members. The Agreement's exceptions, as 
expressed in the rule, require an anchor relative 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 rule. However, this rule's definition of ``family member,'' 
which derives from the exceptions to the Agreement, is more generous 
than other family-based immigration laws, which require the anchor 
relative to have more permanent status in the United States (such as 
that of 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. Further, on a case-by-case basis, the 
Agreement's ``public interest'' exception can be used to minimize this 
cost.

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.

8 CFR Part 235

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

Amendments to the Regulations

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

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
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.


0
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 8 CFR 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).
* * * * *

0
3. Section 208.30 is amended by:
    a. Redesignating paragraph (e)(4) as (e)(7);

[[Page 69489]]

    b. Redesignating paragraph (e)(2) as paragraph (e)(4), and by 
revising newly redesignated paragraph (e)(4);
    c. Redesignating paragraph (e)(3) as parargaph(e)(5) and by 
revising newly redesignated paragraph (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 8 CFR 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 8 CFR 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 by operation of 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 apply all relevant 
interview procedures outlined in paragraph (d) of this section, 
provided, however, that paragraph (d)(2) of this section shall not 
apply to aliens described in this paragraph. 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, with concurrence from a supervisory 
asylum officer, determines that an alien does not qualify for an 
exception under the Agreement during this threshold screening 
interview, the alien is ineligible to apply for asylum in the United 
States. After the asylum officer's documented finding is reviewed 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 the alien has a credible fear of persecution or 
torture under paragraph (d) of this section.
    (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 United 
States 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. 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 to the alien, 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 Director of USCIS, or the Director's designee, 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 8 CFR 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 INADMISSILE ALIENS; PAROLE

0
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, 1223, 1225, 1226, 1227.

0
5. Section 212.5 is amended by adding a new paragraph (e)(2)(iii) to 
read as follows:

[[Page 69490]]

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 8 CFR 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 arriving alien, and processed accordingly 
by the Department of Homeland Security.
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
6. The authority citation for part 235 continues to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32.7.

0
7. Section 235.3 is amended by revising the first sentence of paragraph 
(b)(4) to read as follows:


Sec.  235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (4) * * * If an alien subject to the expedited removal provisions 
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, the 
inspecting officer shall not proceed further with removal of the alien 
until the alien has been referred for an interview by an asylum officer 
in accordance with 8 CFR 208.30. * * *
* * * * *

    Dated: November 19, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-26239 Filed 11-26-04; 8:45 am]
BILLING CODE 4410-10-P




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