Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 208, 236, 242, 274a, and 299

[INS No. 1651-93; AG Order No. 1937-94]

RIN 1115-AD64

Rules and Procedures for Adjudication of Applications for Asylum

or Withholding of Deportation and for Employment Authorization

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule streamlines the adjudication of asylum

applications submitted to the Immigration and Naturalization Service

(INS). Asylum officers who adjudicate the applications of persons who

have no legal immigration status will no longer prepare detailed

denials. Instead, in almost all cases, asylum officers will grant

meritorious applications and refer applications that they do not grant

to immigration judges, who will adjudicate the claims in either

exclusion or deportation proceedings. The rule restricts employment

authorization to applicants for asylum or withholding of deportation

whose claims either have been granted or remain pending after more than

150 days, a period which would not run until the alien has filed a

complete application and which would not include delays sought or

caused by the applicant. This rule conforms existing regulations to the

current practice of receiving applications for asylum and withholding

of deportation at the four INS Service Centers. The rule also updates

the regulations by removing references to the Asylum Policy and Review

Unit.

EFFECTIVE DATE: This rule is effective January 4, 1995.

FOR FURTHER INFORMATION CONTACT: Christine Davidson, Senior Policy

Analyst, Asylum Division, Immigration and Naturalization Service, 425 I

Street NW., ULLICO 3rd Floor, Washington, DC 20536, (202) 633-4389, or

Gerald S. Hurwitz, Counsel to the Director, Executive Office for

Immigration Review, 2400 Skyline Tower, 5107 Leesburg Pike, Falls

Church, VA 22041, (703) 305-0470.

SUPPLEMENTARY INFORMATION: The Department of Justice published a

proposed rule on March 30, 1994 (59 FR 14779) as part of a

comprehensive initiative to streamline the process for adjudication of

applications for asylum and withholding of deportation. Other aspects

of this initiative have increased the government's ability to

adjudicate such applications efficiently.

The proposed rule was designed to streamline the asylum

adjudications process by making several principal reforms. First, the

role and functions of asylum officers would change to allow the

officers to address a greater volume of applications and to concentrate

their efforts on approving meritorious claims. Asylum officers would no

longer deny applications from persons who are excludable or deportable,

but instead would refer such cases directly to an immigration judge for

adjudication. The original application also would be forwarded to the

immigration judge to form part of the record of proceedings. Second,

the proposed rule would have instituted a fee for filing asylum

applications. Third, an asylum applicant would not be eligible to apply

for employment authorization based on his or her asylum application

until 150 days after the date on which the asylum application is filed.

The Immigration and Naturalization Service (INS) and the Executive

Office for Immigration Review (EOIR) would strive to complete the

adjudication of asylum applications, through the decision of an

immigration judge, within this 150-day period. Persons granted asylum

would become eligible immediately to apply for and receive employment

authorization. Persons whose cases were not decided by an immigration

judge within the 150-day period would be eligible to apply for

employment authorization. The INS would have 30 days to adjudicate such

applications. Persons denied asylum by an immigration judge either

within the 150-day period or prior to the issuance of employment

authorization by the INS would not be eligible to receive employment

authorization.

Beyond these principal reforms, the proposed rule would have:

eliminated the requirement that asylum officers and immigration judges

await the receipt of advisory opinions from the Department of State;

curtailed the authority of asylum officers to grant or deny withholding

of deportation under section 243(h) of the Immigration and Nationality

Act, 8 U.S.C. 1253(h) (INA or Act); and specified that information

provided in asylum applications could be used as a basis for an Order

to Show Cause against the applicant under 8 CFR 242.1. The proposed

rule also would have made several technical and conforming amendments.

The Department of Justice received 345 comments in response to this

proposed rule. Many were submitted as a result of consultations between

various non-governmental organizations. The following sections

summarize the comments, set forth the response of the Department of

Justice, and explain the revisions adopted.

The comments primarily focused upon the following topics:

conformity with the Administrative Procedure Act (APA); constitutional

questions; the proposed $130 filing fee; retroactivity of the proposed

rule; service of notice; employment authorization; the discretionary

nature of asylum interviews; interpreters; the ``safe third country''

ground of denial for applicants otherwise eligible for asylum; the

elimination of the Notice of Intent to Deny (NOID) and the applicant's

opportunity to rebut a NOID; and the definition and treatment of

persons convicted of an aggravated felony. In addition, there were

general comments regarding United States immigration policy.

Many comments agreed that asylum reforms and a solution to the

backlog problem are needed. Some stated, however, that even if the

proposed rule met the objectives of the Immigration and Naturalization

Service, it would do so at the expense of bona fide asylum applicants

and would compromise fairness and humanitarian principles. Many

comments stated that the proposed rule would not stop frivolous claims

or reduce the backlog.

1. Administrative Procedure Act Issues

Comment: Several comments stated that the proposed rule violated

the requirements of the Administrative Procedure Act (APA) because the

rule included changes to regulations affecting the Executive Office for

Immigration Review (EOIR), and the INS has no authority to promulgate

regulations on behalf of EOIR. Sections alleged to fall within EOIR's

jurisdiction were 208.1, 208.2, 208.3, 208.12, 208.14, 208.18, 236.3,

and 242.17. The comments suggested that the Department should republish

the sections of the proposed rule that pertain to EOIR proceedings with

instructions that comments should be directed to the EOIR.

Response and Disposition: The proposed rule was published by the

Department of Justice. The Attorney General has authority to promulgate

regulations on behalf of all Department of Justice agencies, including

INS and EOIR. Officials of EOIR participated in drafting all relevant

provisions of the proposed rule. Upon publication of the rule, the

name, address, and phone number of the Counsel to the Director of EOIR

were included as a point of contact for further information. Since this

rule chiefly concerns the process for adjudicating asylum applications

that are received in the first instance by the INS, public comments

were directed to the INS; however, a copy of every comment was

forwarded by the INS to EOIR. Specific suggestions were made by EOIR

and have been incorporated into this final rule. Accordingly, this rule

has been issued in compliance with the notice and comment requirements

of the APA.

2. Constitutional Issues

Comment: Several comments stated that the proposed rule would

violate the Constitution by infringing upon liberty and property

interests protected under the due process clauses of the Fifth and

Fourteenth Amendments. The comments identified the following as

violations of due process: (a) not every asylum applicant would receive

an asylum officer interview, which is essential for an asylum officer

genuinely to evaluate a case; (b) those denied an interview would be

deprived of the opportunity to have their claim decided in a non-

adversarial setting and instead would be required to present their

asylum claim to an immigration judge during an adversarial proceeding;

(c) an applicant not granted asylum would be denied the opportunity,

available under the current procedures, to rebut the asylum officer's

initial determination to deny the claim (Notice of Intent to Deny); and

(d) due to elimination of the Notice of Intent to Deny (NOID), the

applicant would not have access to the information that the asylum

officer relied upon in deciding not to grant the claim. The comments

stated that such infringement could not be justified by the

Government's interest in improving the efficiency or financial

viability of the asylum process.

Comments stated that procedures similar to those in the proposed

rule have been invalidated by the federal courts. They pointed to

Mendez v. Thornburgh, No. 88-04995 (C.D. Cal., Order filed May 26,

1989, modified June 23, 1989), in which the court preliminarily

enjoined an expedited adjudication process put into place in Los

Angeles and stated that applicants were entitled to a re-interview.

Comments also noted American Baptist Churches v. Thornburgh, 760 F.

Supp. 796 (N.D. Cal. 1991) (hereinafter ``ABC''), in which the

Government agreed to re-interview Salvadoran asylum-seekers. Comments

suggested that agency efforts to expedite the asylum process through

measures compromising due process and equal protection have been

enjoined as a ``pattern and practice violation'' in a number of other

cases.

Response and Disposition: The proposed rule fully recognized the

due process rights of asylum applicants. By preserving asylum and

withholding of deportation proceedings before an immigration judge, the

rule provides due process: (a) the applicant is permitted to testify

and submit all relevant evidence in support of his or her claim; (b)

the applicant may be represented by an attorney; (c) the applicant is

entitled to cross-examine all witnesses presented by the Government and

to rebut any documentary evidence submitted by the Government; and (d)

the applicant has the right to administrative appeal and judicial

review of an adverse decision. In addition, as discussed below, the

final rule amends the proposed rule by providing that the INS will

conduct interviews for all asylum applicants within its jurisdiction

who have filed a complete application. All who apply for asylum before

an asylum officer will thus have an opportunity to present their claim

in a nonadversarial proceeding. Furthermore, neither the settlement

agreement in Mendez nor the settlement agreement in ABC suggests that

INS procedures were invalid. The rule does not single out any class of

applicants for distinct treatment and all asylum applicants will be

treated in the same manner without regard to nationality or country of

origin. Asylum officers will interview all applicants who appear for

their scheduled interviews before determining whether to grant, deny,

or refer their applications.

3. Federalism Issues

Comments: Several comments argued that the proposed rule required a

``cost benefit assessment'' under Executive Order 12866 because it

constitutes a ``significant regulatory action.'' The comments also

suggested that the Department was required to perform a ``federalism

assessment'' under Executive Order 12612, since portions of the

regulation could affect state governments' public welfare programs. The

comments argued that the inability of asylum applicants to work for 180

days and during the appeal process could lead the applicants and their

families to rely on state public assistance that they might not turn to

if authorized to work. This, the comments stated, constitutes a

``substantial direct effect on the States,'' triggering the need for a

federalism assessment.

Response and Disposition: Executive Order 12866 requires an agency

to submit a draft proposed rule and an assessment of the potential

costs and benefits of the regulation to the Office of Management and

Budget (OMB) for review if the agency or OMB considers the rule ``to be

a significant regulatory action'' under section 3(f) of that Order. The

Department of Justice considered the proposed rule to be a significant

regulatory action and complied with the Executive Order by submitting a

copy of the draft proposed rule and a summary of the reasons for the

regulation to the OMB. See 59 FR 14784 (March 30, 1994).

Executive Order 12612 requires a federalism assessment if a

proposed regulation has ``substantial direct effects on the States, on

the relationship between the national government and the States, or on

distribution of power and responsibilities among the various levels of

government.'' Whether policies have federalism implications depends

principally on whether the policies would preempt state law or

interfere with an area of regulation that is usually reserved to the

states. If an agency determines that a policy has federalism

implications, the federalism assessment must consider the costs or

burdens the regulations would impose on the states and resources

available to the states to offset the added costs or burdens.

The Department and OMB determined that Executive Order 12612 did

not require a federalism assessment of this rule. Regulations regarding

immigration and alienage are an exclusive federal concern, and thus do

not preempt state law or impinge upon areas of state regulation.

Furthermore, Congress has enacted specific legislation governing the

employment of aliens which authorized the promulgation of regulations

on the subject. The rule also would not have a substantial direct

effect on the states. While it is possible that asylum applicants not

eligible to apply for work authorization might seek state benefits, the

nature and degree of any such claims are at best an indirect effect of

the adoption of new asylum procedures. Many asylum seekers have entered

the United States illegally and are not eligible for most state

benefits; and some state benefits, such as education, are available

regardless of whether an applicant has work authorization. Meanwhile,

the overall asylum reform effort should reduce the pressure on state

public assistance benefits by more promptly granting asylum and work

authorization to those deserving of these benefits and more promptly

removing from the United States those who are not. Accordingly, there

is no need for a federalism assessment under Executive Order 12612.

4. Filing Fee for Asylum Applications (8 CFR 103.7(b)(1))

Proposed Rule: The proposed rule would have amended 8 CFR

103.7(b)(1) to provide that a fee of $130 be charged for an application

for asylum or withholding of deportation. Section 208.4(d) would have

been amended to provide that an application be accompanied by such fee

or by an application for waiver of fee in accordance with 8 CFR

103.7(c)(1).

Comments: Comments supporting fees argued that asylum applicants

should have to pay a filing fee if they can afford to do so, that the

general public does not benefit from services provided by the INS, and

that taxpayers should not have to bear the entire cost.

Most comments, however, urged either elimination or reduction of

the fee. It was argued that the proposed fee would unfairly punish

persons seeking protection from persecution, treat asylum as a

privilege limited to those who could afford it, discourage bona fide

applications, and create a burden for the INS in administering the fee

waiver provisions. Several comments claimed that the fee would be

unfair in light of the proposed rule's limitation on an asylum

applicant's access to employment authorization pending the adjudication

of the asylum claim. Other comments stated that the amount of the fee

was excessive: even if an applicant could not qualify for a fee waiver,

he or she might still be unable to apply for asylum due to the overall

cost, including those for an attorney, counselor, and interpreter, to

complete the asylum application process. These comments unfavorably

compared the proposed fee to those charged by The Netherlands ($25.00)

and Australia ($30.00), the only countries that now charge an

application fee, and suggested that a fee at this level would be more

appropriate.

Several comments also argued that charging a fee would not be

economically efficient. Collecting the fee and administering a waiver

system would create significant administrative costs. Adjudicating

waivers, aside from being time-consuming, would increase personnel

costs and paperwork, would add an additional step to the adjudication

process, and would expose the INS to litigation over contested waiver

decisions. If, as anticipated, a large number of applicants applied for

and obtained fee waivers, the costs in administering the fee and the

waiver might not even offset the relatively low amount of fees

collected.

Several comments also questioned whether the INS could fairly

administer a fee waiver process. They alleged that the INS previously

has used improper criteria in adjudicating applications for waivers of

fees for Temporary Protected Status and for renewal of employment

authorization documents. These comments urged that the process be

fairly implemented by removing irrelevant discretionary factors from

the waiver procedure and focusing solely on the applicant's ability to

pay the fee. Some argued that the INS should propose, publish, and

elicit public comments on uniform guidelines for adjudicating fee

waivers for all INS applications. Others argued that the INS should

create a fee waiver process for asylum applicants under a separate

regulation, independent of 8 CFR 103.7(c). Some proposed that asylum

applicants filing through an approved voluntary agency or an accredited

representative should receive automatic fee waivers. Many comments

suggested that waiver guidelines should incorporate the poverty

guidelines of the Department of Health and Human Services. Some

comments suggested that a time limit be set within which the INS must

make waiver determinations and, if the decision is not made within that

time, that the waiver be granted. Comments also suggested that the fee-

paying or waiver status of the applicant not be disclosed to the asylum

officer adjudicating the claim. One comment suggested that the filing

of a fraudulent fee waiver be used as evidence weighing against the

applicant's credibility on the underlying asylum claim.

Several comments stated that under section 286(m) of the Act, 8

U.S.C. 1356(m), the INS may not impose a fee for asylum applications.

This section provides that the INS may set its fee for providing

adjudication and naturalization services at a level that will ensure

the full recovery of costs for those services, including those provided

without charge to asylum applicants or other immigrants. Several

comments also stated that a specific fee for asylum applications is

unnecessary because after the implementation of asylum reform, the

surcharge added to INS fees in conformance with section 286(m) should

generate sufficient revenues to cover the costs of the asylum program.

A number of comments made recommendations for changing the fee

proposal. One comment proposed setting the fee at $615, which is the

estimated total cost of adjudicating an asylum application. Under this

proposal, if the applicant could not pay the fee at the time of filing,

then he or she should pay half of the fee at the time of filing and pay

the balance within 90 days or at the time of the interview, whichever

is sooner. One comment suggested loaning the entire cost of asylum

processing ($615) to the applicant. The loan could be paid back in one

to three years as the person begins to work.

Some comments suggested that the fee be deferred so that a person

granted asylum pay the fee when he or she applies for adjustment of

status or for any other subsequent benefit under the Act. For those

whose applications are denied and who subsequently seek another

immigration benefit, such as adjustment of status upon marriage or

reentry after deportation, the asylum fee would be collected at the

time the applicant submits the respective application. The comments

argued that applicants will be in a better position to pay the fee at

the time of these subsequent applications.

One comment suggested that the fee not be charged to those who file

their asylum application before an immigration judge in exclusion or

deportation proceedings. This comment noted that most of the alleged

abuse of the asylum system occurs in applications filed with asylum

officers and that it is unfair to charge a fee to those who are

defending themselves in removal proceedings.

Response and Disposition: The comments received in response to the

fee proposal have been carefully considered. It has been concluded that

imposition of the fee at this time would likely impose administrative

burdens that would not be offset by the anticipated receipts from the

fee. Accordingly, the provisions relating to the fee are not included

as part of the final rule. Adjudication of asylum applications before

the INS will continue to be funded by way of a statutorily authorized

surcharge assessed on applications for other immigration benefits.

Additional funding provided by the 1995 appropriations for Asylum

Reform will provide resources for INS and EOIR. As part of an ongoing

comprehensive economic review of its entire fee structure, the INS will

examine alternative sources of funding for asylum adjudications,

including the possibility of a user fee.

5. General (8 CFR 208.1)

a. Effective Date (8 CFR 208.1(a))

Proposed Rule: The proposed rule would have amended 8 CFR 208.1(a)

to state that Part 208 applies to all adjudications of asylum

applications, whether by an asylum officer or by an immigration judge,

on or after the effective date of the final rule.

Comments: Many comments urged INS not to apply some or all of the

proposed amendments to Part 208 to applications filed prior to the

effective date of the final rule. These comments suggested that a

``retroactive'' application of the rule could result in different

treatment for asylum applicants who filed at the same time, but prior

to the effective date of the final rule--namely: claims filed and

adjudicated before the effective date of the final rule will have been

processed under the prior practice of a mandatory asylum officer

interview and opportunity to rebut a NOID; NOIDs are eliminated for

claims filed but not adjudicated by the effective date and, under the

proposed rule, such claims could be referred immediately to an

immigration judge without an interview by an asylum officer. Some

comments also noted that making the rule applicable to applications

that have already been filed would have no effect in discouraging the

prospective filing of non-meritorious applications.

A number of comments argued that the proposed rule is invalid under

the Supreme Court's decision in Bowen v. Georgetown University

Hospital, 488 U.S. 204 (1988), which held that retroactive rulemaking

is improper under the APA absent express statutory authority, because

Congress has not given the Attorney General retroactive rulemaking

authority through the Immigration and Nationality Act.

Finally, one comment argued that applying the proposed rule to

``all adjudications'' creates conflicts with judicial decisions and

settlement agreements in litigation concerning asylum procedures.

Response and Disposition: These comments were carefully considered,

but it was concluded that the effective date provision does not run

afoul of Bowen v. Georgetown University Hospital. The rule is not

``retroactive'' within the meaning of that case because it does not

alter the past legal consequences of past actions; rather, it affects

only procedures that are to be followed in cases that are yet to be

adjudicated.

The effective date provision applies only to adjudications of

applications for asylum or withholding of deportation under 8 CFR Part

208. The rule therefore will not apply to the amended provisions of 8

CFR 242.17(e) regarding the use of information provided on an asylum

application as the basis for establishing the alienage or deportability

of an asylum applicant, or to the related provision at 8 CFR

208.3(c)(2). These amended provisions will apply only to applications

received by the INS after the effective date of the final rule.

Similarly, the effective date provisions do not affect 8 CFR

274a.12(c)(8). Thus, asylum applicants who have filed their

applications prior to the effective date of the final rule will not be

subject to the final rule's provisions governing initial applications

for employment authorization. Sections 208.7(a) and 242.17(e) of the

final rule will be amended to clarify this point. However, the rule

governing extensions of employment authorization in Sec. 208.7(d) shall

apply to all asylum applicants upon the effective date of this rule.

Furthermore, the final rule cannot and does not intend to alter any

obligations imposed on the INS or asylum applicants by judicial

decisions or settlement agreements in cases such as ABC or Mendez.

Finally, the rule will not apply to cases pending in district courts,

courts of appeals, or the Supreme Court.

The other aspects of the rule, while they would affect pending

applications, do not affect the past legal consequences of past

actions, but merely affect procedures to be applied in the future. The

main procedural differences under this rule are elimination of the NOID

and written denial decisions by asylum officers. These changes,

however, do not alter the legal circumstances or rights of any person

with a pending application. No person eligible for asylum under

existing regulations will be rendered ineligible due to any change made

by this rule. Asylum claims will continue to be adjudicated under the

same legal standard.

Limiting application of the final rule to applications filed after

the effective date would severely impair efforts at asylum reform

because it would require two parallel systems of adjudication: one for

cases filed before the effective date, one for cases filed afterwards.

Neither the Supreme Court's decision in Bowen nor any section of the

APA requires such a result. The rule achieves the goal of streamlining

the asylum process while maintaining the same legal standards used to

adjudicate each asylum application in a timely manner. This provision

of the proposed rule will be adopted in the final rule with amendments

for clarity.

b. Qualifications and Training of Asylum Officers (8 CFR 208.1(b))

Comments: Two comments suggested that both immigration judges and

asylum officers receive special training in international human rights

law, conditions in countries of origin, and other relevant national and

international refugee laws. One comment observed that the current rule

that provides for extensive training of asylum officers has improved

their decision-making, and reasoned that the same requirement would

have a similar effect on the decisions of immigration judges.

Response and Disposition: The Department provides extensive initial

training and continuing education to immigration judges that includes

training related to asylum adjudications. The Department will continue

to work to improve such training programs. However, the Department does

not consider it necessary that there be specific regulatory

requirements regarding the training of immigration judges.

6. Form of Application (Section 208.3)

a. Required Copies of Forms (8 CFR 208.3(a))

Proposed Rule: Section 208.3(a) of the proposed rule stated that

the applicant file three copies of any supporting documentation and one

completed fingerprint card (Form FD-258) for all individuals ages 14

years and older who are included on the application.

Comments: One comment stated that it is not clear whether two or

three copies of the application are required, and another questioned

the reason for requiring three copies of supporting documentation.

Response and Disposition: The final rule has been clarified to make

clear that the I-589 and supporting documents, plus two copies, are

required. Three copies of supporting documentation are required because

one copy is retained by the INS in the applicant's alien registration

file, one copy is forwarded to the Department of State under 8 CFR

208.4(a), and, if the application is not granted by the asylum officer,

a copy of the application with all supporting documents is forwarded to

the immigration judge under the referral process described in 8 CFR

208.14(b). This provision of the proposed rule has been amended to

clarify that the original and two copies of the application are

required.

b. Use of Information in Application (8 CFR 208.3(c)(2))

Proposed Rule: Section 208.3(c)(2) of the proposed rule stated that

information provided in an asylum application may be used to satisfy

the Government's burden of proof in establishing deportability under

section 242 of the Act, 8 U.S.C. 1252.

Comment: One comment asserted that the proposed rule should state

that the information in the asylum application may not satisfy the

clear, convincing, and unequivocal standard of evidence for

deportability.

Response and Disposition: The Department believes that an alien's

written admission of alienage and of having no lawful status in the

United States is sufficient to satisfy the standard of evidence for

establishing deportability. Consequently, the new asylum application

will contain a clear warning that the application may be used to

establish deportability. This part of the final rule will not be

applied retroactively and will affect only those persons who make an

application on the new form after the effective date of this rule.

Accordingly, this provision of the proposed rule will be adopted

without amendment in the final rule.

c. Delivery by Mail (8 CFR 208.3(c)(3))

Proposed Rule: Section 208.3(c)(3) of the proposed rule stated that

mailing to the address provided on the application shall constitute

adequate service of all notices and other documents, including any

charging documents (Forms I-221 and I-122).

Comments: Several comments argued that delivery by regular mail of

an Order to Show Cause (OSC) violates section 242B(a)(1) of the Act, 8

U.S.C. 1252b(a)(1), which requires that OSCs be presented by personal

service or certified mail. Other comments argued that the OSC should be

served by certified mail to ensure that it is actually received and

that the rule does not take into consideration that an applicant may

move after his or her application has been filed.

Three comments also addressed the issue of service to legal

representatives. One comment stated that if the applicant is

represented by an attorney, service should be made on the applicant's

legal representative, rather than on the applicant. Another comment

recommended that mailing documents to the applicant's attorney or

representative also should constitute adequate service. Finally, a

comment asserted that EOIR should be informed whether an applicant was

represented by an attorney at the Asylum Office.

Response and Disposition: This provision is not intended to--and

legally could not--alter the certified mail delivery requirements in

section 242B of the Act, 8 U.S.C. 1252b. In cases where personal

delivery of the OSC is not possible, OSCs will continue to be served by

certified mail. This provision is adopted with an appropriate

clarifying amendment in the final rule.

The recommendations regarding service upon attorneys or registered

representatives have been considered carefully. The Department believes

that the rules for service of an OSC must ensure that the person

subject to proceedings has actually received the document. The

Department also is concerned that an attorney retained for the asylum

process might not remain as the applicant's attorney in exclusion or

deportation proceedings. As this final rule is implemented, the INS

will work with attorneys and advocacy organizations to consider these

and other proposals relating to the service of notices and other

documents, but the suggestion of having charging documents mailed to an

applicant's attorney or representative constitute adequate service has

not been adopted.

d. Signatures under Penalty of Perjury (8 CFR 208.3(c)(4) and 8 CFR

208.3(d))

Proposed Rule: Sections 208.3(c)(4) and 208.3(d) of the proposed

rule stated that the applicant and anyone other than an immediate

relative of the applicant who prepares or assists the applicant in

preparing the asylum application must sign the application subject to

penalty of perjury. A person other than an immediate relative who

prepares or assists the applicant in preparing the application also

must provide his or her full mailing address. In addition, if the

applicant later claims ignorance of the contents of the application,

his or her signature may provide the basis for denial of the claim.

Comments: Several comments suggested that any preparer, including

an immediate relative, sign the asylum application under penalty of

perjury and provide an address. One comment argued that exempting

family members from signing the I-589 weakens the regulation because

unscrupulous preparers, to remain undetected, will not sign the

application.

Many other comments criticized this provision as unduly punitive

because many asylum applicants have limited education, are unfamiliar

with United States laws, and rely on those who claim to be qualified to

assist them with their asylum applications. Such applicants should not

be subject to prosecution if there are errors in the application. Some

comments asserted that this provision will prevent applicants from

obtaining help in completing their applications. In addition, one

comment claimed that those assisting applicants might fear reprisal

from their own governments if their role in assisting asylum applicants

were known. Another stated that organizations may not wish to sign the

forms because of their unwillingness to incur potential liability for

an inaccurate representation not known to them. One comment argued that

subjecting persons other than the applicant to penalty of perjury

places an undue burden on attorneys and translators who are assisting

applicants but can do little to verify the veracity of the applicants'

statements.

The comments made several recommendations directed at protecting

applicants and the individuals and organizations who assist applicants.

One comment recommended that only the preparers, not the applicants,

should sign the asylum application subject to a penalty of perjury

because genuine asylum-seekers, particularly those that do not speak

English, may be unaware of the actions of an unprincipled preparer. One

comment advocated that those who prepare asylum applications without

charging the applicant a fee should not be required to sign the form.

Another comment suggested that if an improperly prepared asylum

application is not signed by the preparer, the asylum officer should

ask the applicant who prepared the application. With the applicant's

permission, the asylum officer then could relay the information about

the preparer to the appropriate local INS enforcement division.

Finally, two comments asserted that the signature requirement is

too broad. The comments claimed that the signature requirement in the

proposed rule is more sweeping than the requirement on the form itself,

and that it fails to specify the degree of assistance that triggers the

necessity to sign the form.

Response and Disposition: The requirement that the applicant and

outside preparers sign the Form I-589 under penalty of perjury is

necessary and appropriate for several reasons. An asylum applicant is

seeking an important benefit and should be required to provide only

truthful information to the Government. The evidentiary rules for

adjudicating asylum applications treat the credible testimony of the

applicant as sufficient to meet the applicant's burden of proof and

thus there should be appropriate consequences for making false

statements. Those who assist in preparing applications also should bear

these consequences if they have knowingly included false information on

the application.

The fact that a signature is made under penalty of perjury does

not, of course, alter the Government's burden to establish the elements

of the crime in the event of prosecution. Many of the objections raised

in the comments would apply to situations where perjury could not be

proved. Nevertheless, those applying for asylum and those who assist

others in doing so should have the same obligation to make truthful

statements as persons who make other applications to the Government.

These provisions of the proposed rule will be adopted in the final

rule, with amendments for clarity and to eliminate unnecessary words.

e. Incomplete Applications (8 CFR 208.3(c)(5) and 8 CFR 208.3(c)(6))

Proposed Rule: Section 208.3(c)(5) of the proposed rule stated that

an application that is incomplete or lacks a response to each of the

enumerated questions may be referred to an immigration judge for

adjudication or may be denied by the asylum officer. Section

208.3(c)(6) defined an incomplete application as one that does not

include a response to each of the questions contained in the Form I-

589, that is unsigned, that is unaccompanied by the required materials

specified in paragraph (a) of this section, or that is unaccompanied by

the required fee or application for fee waiver.

Comments: Numerous comments criticized these provisions for

establishing overly harsh penalties and for not including a

sufficiently clear definition of what constitutes an incomplete

application. The comments claimed that an application may be denied or

referred because minor or irrelevant questions were not answered. The

comments suggested that the applicant be given a chance to remedy such

an omission. The comments also questioned whether an application would

be deemed incomplete if certain questions were answered but the

responses lacked substance.

Several comments agreed that incomplete applications should not be

adjudicated and recommended amendments to the rule. One comment

suggested that this provision be moved to a new subsection and labelled

``Summary Disposition--Action on Incomplete Forms.'' Another comment

suggested that the term ``incomplete'' be deleted from the final rule

in order to restrict the rule to allow denial or referral only when the

applicant has been completely unresponsive to a question. A third

comment advocated that incomplete applications be returned to the

applicant, rather than denying them or referring them to an immigration

judge.

Response and Disposition: The final rule retains the current

mandate that all asylum applicants who appear as scheduled will receive

an interview with an asylum officer.

Accordingly, incomplete applications will not be denied or referred

to an immigration judge without an interview. These sections of the

proposed rule are therefore adopted with appropriate amendments in the

final rule. The final rule provides that an incomplete application

shall be returned by mailing it to an applicant within 30 days of

receipt of the application by the INS; and that if an application has

not been returned within this 30-day period, the application shall be

deemed complete. Under section 208.7 of the final rule, if the

application is incomplete, the 150-day period will not begin until the

applicant submits a complete application. For clarity, the last

sentence of Sec. 208.3(c)(6) of the proposed rule, defining an

incomplete application, is moved to paragraph Sec. 208.3(c)(5) of the

final rule. This definition also has been clarified to state that an

application that is not returned to an applicant within 30 days of

having been received by the INS shall be deemed complete.

7. Employment Authorization (Section 208.7)

Proposed Rule: The proposed rule would have amended the regulations

governing eligibility of asylum applicants for employment authorization

in the following manner: An application for employment authorization

(Form I-765) could be submitted to the INS no earlier than 150 days

after the date on which a complete application for asylum was filed. If

the asylum application was denied by an immigration judge or an asylum

officer within the 150-day period, the applicant would not be eligible

to apply for employment authorization. After 150 days, the INS would

have 30 days from the date of the filing of the application for

employment authorization to adjudicate the application for employment

authorization. If the INS failed to adjudicate the application for

employment authorization within the 30-day period, the applicant would

be eligible for interim employment authorization. If the application

for asylum was denied by an immigration judge or an asylum officer

within this 30-day period, the application for employment authorization

would be denied. The 150- and 180-day periods would be extended by any

delay sought or caused by the applicant. The proposed rule also would

have prohibited an applicant for asylum who has been convicted of an

aggravated felony from applying for or being granted employment

authorization. If an applicant who has been convicted of an aggravated

felony has previously been granted employment authorization, the

employment authorization would be revoked. Finally, an applicant who

inexcusably failed to appear for a scheduled interview before an asylum

officer or a hearing before the immigration judge would not be granted

employment authorization. The proposed rule also would have amended the

current rule by requiring a fee for the filing of an initial

application for employment authorization.

Comments: A few comments supported these proposals as an

appropriate balance between meeting the needs of asylum applicants

while discouraging frivolous claims. A greater number of comments

criticized these provisions for imposing economic hardship on asylum

applicants. The comments stated that many applicants arrive in the

United States with few belongings, no money, and no network of family

or friends to provide them assistance. Furthermore, the United States

does not provide public assistance benefits to most people who apply

for asylum. As a result, asylum applicants would be forced to work

illegally in jobs where they would be underpaid and treated poorly, but

would have no means of redress because of the fear of reprisals. Other

comments claimed that the rule would violate the right to work of

asylum applicants and is inconsistent with the 1951 Convention Relating

to the Status of Refugees, 189 U.N.T.S. 150, 19 U.S.T. 6260, T.I.A.S.

6577, and the 1967 Protocol Relating to the Status of Refugees, 606

U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S. 6577, because it creates an

obstacle to the filing of an asylum application. Comments also stated

that the rule would deny due process to asylum applicants because they

would be unable to afford attorneys to represent them. Numerous other

comments claimed that the rule would impose new burdens on social

service organizations and state and local governments because asylum

applicants unable to work will turn to these sources for assistance.

One comment specifically observed that a greater number of Cubans

and Haitians will apply for cash and medical benefits under the Refugee

Education Assistance Act of 1980, 8 U.S.C. 1522 note, and suggested

that Cubans and Haitians be exempt from the employment authorization

limitations under 8 CFR 208.7(a). Another comment contended that

applicants paroled into the United States to file asylum claims will

lose their work authorization under the proposed rule, which would be

unjust because many such parolees have been recognized by the INS to

have credible asylum claims.

Some comments indicated that the proposed rule is confusing because

it does not specify that persons granted asylum are immediately

eligible for work authorization and does not provide sufficient detail

on how the 150-day waiting period will be measured. Other comments

expressed doubt that asylum applicants would actually receive work

authorization 180 days after the filing of their applications because

of difficulty and confusion in applying the 150-day waiting period.

Many comments advocated eliminating the waiting period and

maintaining the current rule, which allows immediate applications for

employment authorization and issuance within 90 days. Some comments

suggested a decrease in the waiting period with one specifically

stating that employment authorization valid for 3 to 6 months should be

granted at the time of the interview or within 90 days, except for

cases deemed ``frivolous'' or ``manifestly unfounded.'' Another comment

advised providing exceptions to the waiting period by granting

employment authorization immediately or within 90 days to applicants

who demonstrate hardship or economic need (such as those with no

relatives in the United States or who have small children). Another

comment advocated issuing employment authorization at the time of the

interview or hearing because it would ensure that applicants appear for

their interview or hearing and allow the applicant to receive

employment authorization sooner.

A number of comments suggested clarification of the 150-day waiting

period. One comment noted that the 150-day period should begin when the

application is received by the INS, rather than when the application is

actually processed. Some comments argued that the INS should notify the

applicant in writing of the date of receipt and whether the application

is complete. Other comments criticized the provision for an extension

of the 150-day period in the case of delays caused by the applicant,

and one comment recommended that this aspect be eliminated. Another

comment suggested, however, that the applicant be notified when

additional information is required and the waiting period be extended

only if the additional information is not provided. Other comments

asked for clarification as to what actions serve to extend the waiting

period, and one comment requested that a mechanism to contest the

extension be provided.

Finally, some comments opposed the inability of the applicant to

obtain work authorization during the appeal period if his or her claim

is denied by the immigration judge within the 180-day period. One

comment noted that the applicant's access to counsel will be

jeopardized on appeal while another observed that negative decisions

frequently are reversed. A comment stated that such an applicant may

face the choice of either starving or returning to a country where he

or she faces persecution. Comments also stated that a decrease in

appeals will hinder proper interpretation of the law by preventing the

presentation of novel legal issues. These comments suggested that

employment authorization be granted to applicants during the appeal

process or that an exception for economic necessity be provided.

Response and Disposition: The Department strongly believes that the

asylum process must be separated from the employment authorization

process. This rule will discourage applicants from filing meritless

claims solely as a means to obtain employment authorization. More

important, the rule provides legitimate refugees with lawful employment

authorization. When the system is fully operational, asylum officers

are expected to grant or refer affirmative claims within about 60 days.

Thus, persons with bona fide asylum claims would get work authorization

in approximately the same time as the current 90-day period for

adjudicating work authorization applications. All applicants could have

work authorization after 180 days, unless their claims have been denied

by an immigration judge. Under existing authority, work authorization

may be granted to persons who are paroled into the United States by the

INS. 8 CFR 274a.12(c)(11). This provision, which can be employed in the

case of asylum applicants seeking admission at a port of entry to the

United States and paroled into the country, is not changed in this

rule.

The comments presented on this issue have been carefully

considered. Particular attention was given to the recommendations that

alternative means be established to adjudicate employment authorization

on the basis of the merits of the claim or on the economic situation of

the asylum applicant. Either alternative would invite a large number of

applications, thus diverting resources and undermining the goals of

asylum reform. Using a merit-based standard would require the INS to

adjudicate asylum applications for work authorization eligibility

either through a paper evaluation or a separate work authorization

interview. A need-based standard would impose a similar administrative

burden. Given that the vast majority of those deserving asylum will

promptly receive their decisions and, hence, their employment

authorization, this burden would not be justified by the results

achieved.

The Department also considered the claim that asylum applicants

will disregard the law and work without authorization. While this is

possible, it also is true that unlawful employment is a phenomenon not

limited to asylum applicants, but is found among many categories of

persons who have illegally entered or remained in the United States.

The Department does not believe that the solution to this problem is to

loosen eligibility standards for employment authorization. This is

particularly so because of the evidence that many persons apply for

asylum primarily as a means of being authorized to work. These rules

will discourage applications filed for such reasons and thus will

enable the INS to more promptly grant asylum--and provide work

authorization--to those who merit this relief.

These provisions of the proposed rule also are in keeping with

United States obligations under international law. Article 17 of the

1951 Convention provides that a ``[c]ontracting State shall accord to

refugees lawfully staying in their territory the most favourable

treatment accorded to nationals of a foreign country in the same

circumstances, as regards the right to engage in wage-earning

employment.'' Under this rule, refugees--i.e., persons granted asylum--

are immediately eligible to apply for and receive employment

authorization. Article 17 imposes no further obligations on access to

employment authorization for those who are applying for asylum.

The Department also has carefully considered the comments directed

to the impact that new rules on employment authorization would have

upon the states. These concerns are addressed under heading 3.

Consistent with its decision to remove the requirement for an

asylum application fee, the Department will not adopt in this final

rule a requirement that asylum applicants pay a fee to accompany an

initial application for employment authorization under 8 CFR 274a.13.

The fee requirement will be retained for applications to renew

employment authorization.

The provisions of the proposed rule are adopted with several

amendments in the final rule. Sections 208.3(c)(5) and 208.7(a)(1) of

the final rule will be amended to provide that the 150-day period shall

commence upon the receipt by the INS of a complete application for

asylum. The filing of an incomplete application shall not commence the

150-day period provided that the INS has returned the application by

mailing it within 30 days in accordance with 8 CFR 208.3(c)(5). Section

208.7(a)(4) also will be amended to specify that an applicant's failure

without good cause to appear for an interview under section 208.9(a)

precludes the applicant from receiving employment authorization under

section 274a.12(c)(8). Failure to appear without good cause to receive

the decision of the asylum officer under section 208.9(d) shall be

treated as delay caused by the applicant and shall toll the 150-day

period. A new paragraph 208.7(a)(5) will be added to specify that the

new rules governing eligibility for employment authorization do not

apply to persons whose asylum applications have been filed prior to

January 4, 1995. Finally, section 208.2(b) will be amended to state

that an immigration judge may permit a referred applicant to file an

amended application, but that any delay caused by such a request shall

extend the period within which the applicant may not apply for

employment authorization.

8. Renewal of Employment Authorization (Section 208.7(d))

Proposed Rule: Section 208.7(d) would be amended to require that in

order for employment authorization to be renewed before its expiration,

an application must be received by the INS at least 90 days before the

employment authorization expires. Under current regulations,

applications for renewal must be received at least 60 days prior to

expiration.

Comment: Several comments criticized this proposal for placing an

unfair and unnecessary burden upon applicants for renewal. The comments

stated that the INS should be able to process renewals within 60 days.

Some comments stated that renewal of work authorization should be

assigned to INS District Offices, and not to the INS Service Centers,

because the District Offices are more likely to have access to

information regarding the alien's status. One comment approved of the

practice of charging a fee for renewal of work authorization.

Response and Disposition: Under 8 CFR 274a.13(d), the INS district

director shall adjudicate the application for renewal of employment

authorization within 90 days of receipt.

The lack of uniformity between the current 60-day rule for filing

renewal applications and the 90-day rule for adjudicating such

applications led to disagreements between applicants and the INS. The

INS believes that fewer disputes will result if these periods are

uniform. The INS agrees that many such applications can be adjudicated

in significantly less than 90 days, and will continue to work for

improvements in this area. Due to the workloads involved in processing

a large volume of employment authorization requests, however, the

Department believes that it would not be prudent to establish a shorter

mandatory period for the adjudication of such requests. Accordingly,

these provisions of the proposed rule will be adopted without amendment

in the final rule.

9. Interview and Procedure (Section 208.9(a))

a. Mandatory vs. Discretionary Interview

Proposed Rule: Current regulations require that for each

application for asylum within the jurisdiction of an asylum officer, an

interview shall be conducted by that officer. The proposed rule would

provide that interviews on asylum applications are discretionary.

Comments: Many comments opposed making interviews discretionary.

Some rested their objections in part on constitutional grounds; these

concerns have been addressed above in subheading 2. The comments also

expressed concern that direct referral of claims without an interview

to an immigration judge is inappropriate because the written

application often is not a reliable indicator of the strength or

weakness of the applicant's claim. The comments argued that a system of

discretionary interviews and direct referrals would be unfair because

many applicants are unable fully to articulate their claim in writing

due to language barriers, lack of understanding of the laws governing

asylum, or innocent reliance on unscrupulous paid preparers of asylum

applications. These comments argued as well that the asylum interview

is of significant benefit because it allows the applicant to present

the facts of the case in a nonadversarial manner and compels the asylum

officer to consider the full range of facts, including all relevant

country conditions, before making a determination in the case. While

many comments acknowledged the advantages of adversarial proceedings

before an immigration judge in eliciting the facts of an asylum claim,

the commentators generally felt that the value of an asylum interview

should be given greater weight.

Several comments stated that the proposed rule would be contrary to

the legislative intent behind section 208 of the Act, 8 U.S.C. 1158,

because Congress contemplated that asylum determinations would be made

independent of exclusion and deportation proceedings.

Several comments claimed that the system of discretionary referrals

would actually make the process less efficient because applicants would

be forced to present their claims in a longer, more formal hearing

before an immigration judge. The comments claimed that this would

increase overall expense to the Government, exacerbate the problem of

delay in asylum adjudications, and undermine the intent of the proposed

rule to streamline the asylum system.

The vast majority of the comments directed to this question stated

that asylum interviews should be mandatory. However, a large number of

these comments also suggested that, as an alternative, direct referral

without interview should take place only in circumstances where the

written application indicates that the claim is frivolous or manifestly

unfounded. Some comments criticized the proposed rule for making it

appear that the granting of interviews to asylum applicants will be the

exception, not the rule. The comments also stated that applicants

deserve to know the standard under which the INS will determine whether

or not to grant an interview.

Response and Disposition: The Department has carefully considered

these comments and determined that the goal of streamlining asylum

adjudications can be met without changing the present rule that

mandates the opportunity for an interview of each asylum applicant.

Accordingly, the present rule is retained and there is no provision for

immediate referral of cases, without an interview, to an immigration

judge. The rule is clarified to state that an interview will be granted

for applications that are complete within the meaning of

Sec. 208.3(c)(5). Section 208.10 also is amended to provide that the

failure without good cause of an applicant to appear for a scheduled

interview under Sec. 208.9(a) may be deemed to constitute a waiver of

the right to an interview with an asylum officer or, in the case of an

applicant who is a stowaway, alien crewman, alien temporarily

excludable under section 235(c) of the Act, 8 U.S.C. 1225, or in

current lawful immigration status, may be deemed to constitute an

abandonment of the application.

b. Procedural Issues

Proposed Rule: The proposed rule would have amended 8 CFR 208.9 (b)

and (c) to require the applicant to provide full identifying

information at the time of the application. Section 208.9(d) would have

been amended to require that, at the conclusion of the interview, the

applicant be notified that he or she must appear in person to receive

the written decision of the asylum officer. A new section 208.9(g)

would have been added to specify rules regarding the use of

interpreters during interviews.

Comment: One comment stated that the proposed rule is unclear on

whether witnesses could testify at the interview because section

208.9(b) of the rule states that the applicant ``may . . . submit

affidavits of witnesses'' while section 208.9(g) refers to live

witnesses.

Response and Disposition: An asylum applicant may present live

witness testimony at the time of his or her interview. In the final

rule, section 208.9(b) is amended to clarify this point.

Comment: Several comments criticized the requirement in the

proposed rule that the applicant be informed that he or she must appear

in person to acknowledge receipt of the written decision of the asylum

officer. The comments stated that this requirement would be inefficient

and would result in applicants having to make an unnecessary return

trip to the Asylum Office, where they may have to wait for a long

period of time. A comment also questioned whether those who are

interviewed in ``circuit ride'' locations would be able to go to those

locations, or would be required to travel to the more distant Asylum

Office with jurisdiction over their cases. Several comments suggested

that written decisions be served by certified mail or that mail service

be used in cases where the applicant has an attorney or registered

representative.

Response and Disposition: In order to streamline asylum

adjudications, there must be a reliable system to accomplish and verify

service of the decision to grant, refer, or deny the claim and, if

applicable, service of the charging document. The INS experience with

certified mail under the current rule demonstrates that this may not be

the most effective method to meet this goal. If the applicant has

provided an invalid address or has moved without notifying the INS,

delivery most often will not be accomplished. In addition, postal

delays and difficulties in processing return receipt cards detract from

the INS's ability to confirm timely delivery. It may be somewhat

inconvenient to make a return trip to the Asylum Office; however, under

this system, the applicant will receive his or her decision promptly.

If the decision is to grant the claim, the applicant will be able to

apply more quickly for employment authorization and other benefits. If

the decision is to refer the claim, the applicant will receive a

charging document that will state the date and time of required

appearance in immigration court, and will be able to plan for that

proceeding. Finally, both the asylum adjudications and removal

proceedings systems will benefit if there are fewer disputes regarding

the service of decisions and charging documents. In cases where the

applicant has failed to appear at the appointed time to receive his or

her decision, certified mail will be used in lieu of personal service

to deliver the decision.

The INS has carefully considered whether the rule should be amended

to permit the use of mail service in the case of applicants who have an

attorney or registered representative. The Department has declined to

adopt that proposal at this time, chiefly because of concerns that an

attorney retained for the asylum application process may not remain as

the applicant's attorney in exclusion or deportation proceedings.

However, as this final rule is implemented, the INS will work with

attorneys and advocacy organizations to consider this and other

proposals relating to service of decisions.

These provisions of the proposed rule have been adopted with an

amendment to clarify that an applicant's failure to appear to receive

and acknowledge receipt of the decision of the asylum officer shall be

treated as delay caused by the applicant for purposes of 8 CFR

208.7(a)(3) and shall extend the period within which the applicant may

not apply for employment authorization by the number of days until the

applicant does appear to receive the decision or until the applicant

appears before an immigration judge in response to the issuance of a

charging document under 8 CFR 208.14(b).

Comment: Several comments addressed the proposed rule's provisions

governing the use of interpreters (8 CFR 208.9(g)). Some comments

criticized the requirement, also contained in current regulations, that

the applicant who does not wish to proceed in English provide an

interpreter for the asylum interview. These comments stated that this

will impose a financial burden on applicants and that it may be

difficult for applicants to find competent interpreters, particularly

for certain languages. Other comments recommended that the rule be

amended to specifically permit immediate family members to serve as

interpreters. Some comments suggested that the rule be more lenient in

cases where the applicant has failed to provide an interpreter. One

comment stated that the proposed rule should be amended to prohibit

representatives, as well as attorneys and immediate family members,

from serving as interpreters.

Response and Disposition: The requirement that asylum applicants

wishing to proceed in a language other than English provide an

interpreter is currently enforced by the INS as an operations policy.

Any other rule would impose an undue financial burden on the

Government. Currently, asylum applicants may use a family member,

friend, or volunteer from the community, or may hire a professional

interpreter. The proposed rule was intended to adopt this policy into

the regulations. The recommendation that a registered representative,

as well as an attorney, be prohibited from serving as an interpreter

will be adopted in the final rule; an advocate should not be called

upon to serve two distinct roles in the course of a proceeding.

However, the final rule does not prohibit an employee of the

applicant's attorney or registered representative, such as a paralegal,

from serving as the applicant's interpreter. Finally, while an

applicant's failure without good cause to provide an interpreter may be

considered as a failure without good cause to appear for the asylum

interview itself, the asylum officer has discretion in applying this

sanction. If the failure to provide an interpreter is justified by good

cause, the INS will not consider the applicant to have waived his or

her right to an interview or to have abandoned his or her asylum

application.

These provisions of the proposed rule are retained with appropriate

amendments in the final rule.

10. Failure to Appear (Section 208.10)

New Amendment: The proposed rule would have made no amendment to 8

CFR 208.10. However, in the course of reviewing the comments regarding

the interview of asylum applicants, it was concluded that this section

should be clarified to modify the provision that an applicant who fails

to appear for a scheduled interview may be deemed to have abandoned his

or her application for asylum. The final rule will modify this section

to provide that failure without good cause to appear for a scheduled

interview may be deemed to constitute a waiver of the right to an

interview or, in the case of an alien crewman, stowaway, person

excludable under section 235(c) of the Act, 8 U.S.C. 1225, or person in

current lawful immigration status, may be deemed to constitute an

abandonment of the application. The final rule also will amend 8 CFR

208.14(b) to provide that an applicant who is deemed to have waived the

right to his or her asylum interview in accordance with this section

may be referred to an immigration judge for adjudication in the course

of exclusion or deportation proceedings.

11. Comments From the Department of State (Section 208.11)

Proposed Rule: As amended by the proposed rule, 8 CFR 208.11 would

retain the practice of submitting asylum applications to the Department

of State but would eliminate the mandatory period during which asylum

officers and immigration judges must await the receipt of State

Department comments in individual cases. The State Department could

provide such comments, but the intent of the rule is to change the role

of the State Department to one of providing detailed and current

country conditions information.

Comments: Comments supported this change. Several comments stated

that applicants should have access to the country conditions

information provided by the State Department and relied upon by INS,

and that applicants should continue to receive copies of case-specific

comments from the State Department. Some comments stated that the

applicant should be given 30 days to respond to any such comments from

the State Department.

Response and Disposition: Under section 208.11(c) of the rule,

applicants will receive copies of case-specific comments provided by

the Department of State. Immigration judges will have discretion to

grant an appropriate time period, if necessary, for rebuttal. A uniform

and mandatory waiting period will not be beneficial because it would

add unnecessary delay to the process. Copies of generic country

conditions information relied upon by immigration judges also will

become part of the record available to the applicant. The INS currently

is considering means by which country conditions information used by

asylum officers may be made more generally available and will continue

to work with attorneys, advocacy groups, and other interested members

of the public in accomplishing this goal. This provision of the

proposed rule is adopted in the final rule with amendments to clarify

the text and eliminate unnecessary words.

12. Elimination of Notice of Intent to Deny (Section 208.12(a))

Proposed Rule: The proposed rule, section 208.12(a), would have

eliminated the requirement that an asylum officer provide the applicant

an opportunity to inspect, explain, or rebut the material relied upon

to find that the applicant's claim has not been approved. This is

commonly referred to as a Notice of Intent to Deny, or NOID.

Comments: Many comments criticized this proposal, arguing that the

NOID requirement protects the rights of applicants and promotes more

accurate decisions by asylum officers. Comments characterized the NOID

as useful to clear up misunderstandings or incorrect applications of

the law before cases reach the immigration court. As discussed

previously, some comments also felt that the proposed rule would

violate the due process rights of applicants by denying them an

opportunity to give a meaningful response to material other than the

interview and the application relied upon by the asylum officer.

Other comments praised elimination of the NOID requirement as a

means to expedite the asylum process. Some comments proposed that a

balance be struck by maintaining the NOID requirement but reducing the

time period in which the applicant can respond.

Response and Disposition: The Department gives high priority to all

efforts to improve the fairness, quality, and accuracy of decisions

made by asylum officers and immigration judges. However, the

requirements in 8 CFR 208.12(a) are not necessary to meet these goals,

and modification of this section is pivotal to the streamlining of the

asylum process. Applicants who are not granted asylum by the asylum

officer will have a full opportunity to present their claim to an

immigration judge, with all the procedural protections of a full

adversarial proceeding. This includes, of course, the right to examine

and rebut all evidence and materials that are introduced in opposition

to the asylum claim. The NOID system is, at best, an imperfect

approximation of this hearing process and one that adds unnecessary

time and expense to the process, thus making it more difficult to

adjudicate claims in a timely manner. The Department has considered

seriously the objections stated to this proposal but believes that the

interests of all asylum applicants will best be served by eliminating

the NOID requirement. Accordingly, this provision of the proposed rule

is retained without amendment in the final rule. The Department will,

however, continue to issue Notices of Intent to Deny in the cases of

persons whose asylum applications can be denied by asylum officers,

including stowaways, crewmen, and persons with a lawful immigration

status.

13. Referrals to an Immigration Judge (Section 208.14(b))

Proposed Rule: The proposed rule would have added a new paragraph

208.14(b) to state that if an asylum officer does not grant an

application, and the applicant appears to be deportable or excludable,

the asylum officer shall refer the application to an immigration judge

for adjudication in exclusion or deportation proceedings. The asylum

officer would no longer deny the application in writing, as required

under current regulations. The asylum officer would issue a written

denial in cases where the applicant has a current legal immigration

status not derived from his or her asylum application.

Comments: Several comments stated that the rule should be amended

to state specific guidelines that asylum officers must follow in

deciding whether to refer cases to an immigration judge. According to

these comments, it is unclear whether the application will be judged

under the standard of well-founded fear of persecution set forth in

section 101(a)(42) of the Act, 8 U.S.C. Sec. 1101(a)(42), or under some

other discretionary standard. Some comments also stated that asylum

officers may rely on improper factors such as instinct, prejudice, or

misinformation in making referral decisions. The comments suggested

that a written record of the reasons for referral, provided to the

applicant, would be fairer to applicants and would increase confidence

in the referral system.

Several comments also criticized the provision for automatic

referral of the asylum application to an immigration judge. The

comments argued that in the course of exclusion or deportation

proceedings, the asylum application is defensive in nature, and the

applicant should be able to decide whether to use the application in

the proceedings. The comments also stated that initial asylum

applications are often erroneous or incomplete, not because the

applicant intends to commit fraud, but because the applicant does not

know English and has used a preparer who did not complete the

application correctly. The comments suggested that the applicant

referred to an immigration judge be able to submit an entirely new

application.

Response and Disposition: The proposed rule does not change the

legal standard for granting asylum set forth in sections 101(a)(42) and

208(a) of the Act, 8 U.S.C. 1101(a)(42) and 1158(a), and 8 CFR 208.13

and 208.14: asylum officers will continue to abide by this standard.

Those who have met the burden of proof to establish that they are

refugees will continue to be granted asylum. Those who have not met

their burden of proof will be referred to an immigration judge or, in

the case of those with a current lawful immigration status, will be

issued a denial letter. The rule should create no reason for concern

that factors other than those set forth in the law and regulations will

influence the decisions of asylum officers. Accordingly, there is no

reason to provide any additional regulatory guidelines for asylum

officer decisions.

We have declined to adopt the recommendation that the applications

of referred applicants not be forwarded to an immigration judge. A

referred applicant may decline to seek asylum in the course of

exclusion or deportation proceedings and, if so, can simply move to

withdraw the application. However, if the applicant desires to proceed

with the application, he or she should be held accountable for the

information that has been provided on the initial application. During

the immigration court proceedings, the applicant can provide additional

information and explain any errors or inconsistencies in the

application. In addition, section 208.2(b) of this rule has been

amended to provide that an immigration judge, as a matter of

discretion, may permit the applicant to amend the I-589 prior to the

hearing on the merits.

The proposed rule would have provided that the INS inform an

applicant by letter of the decision to refer his or her case,

accompanied by a charging document. The INS will consider the

recommendation that the letter state briefly the reasons why the

application has not been granted. However, the INS believes that a

regulatory standard mandating the contents of the referral letter is

not necessary to preserve the procedural rights of applicants and may

impede the flexibility that will be necessary to ensure that applicants

receive their decisions in a prompt manner. The INS will continue to

work with attorneys, advocacy groups, and other interested members of

the public on this question.

This provision of the proposed rule will be adopted in the final

rule with one substantive amendment. The amendment will specify that an

application may be referred to an immigration judge for adjudication in

exclusion or deportation proceedings if, in accordance with 8 CFR

208.10, the applicant is deemed to have waived his or her right to an

interview on the application under 8 CFR 208.9(a). In addition, this

paragraph has been reorganized and sub-divided for clarity.

14. Eligibility Restrictions for Persons Convicted of Aggravated

Felonies (Sections 208.14(d)(4) and 208.16(c)(2)(ii))

Proposed Rule: The proposed rule would have added a new paragraph

208.14(d)(4) that would bar individuals who have been convicted of an

aggravated felony from applying for or being granted asylum. Proposed 8

CFR 208.16(c)(2)(ii) would bar such individuals from applying for or

being granted withholding of deportation.

Comments: Several comments proposed that this portion of the rule

be amended. Some comments stated that the effect of the rule is too

harsh and that those convicted of an aggravated felony should be able

to present their asylum claims. The INS should then balance the

likelihood and seriousness of persecution against the gravity of the

crime committed by the individual. These comments stated that this

approach is supported by the United Nations High Commissioner for

Refugees. Some comments also argued that the rule should apply only to

convictions entered after November 19, 1988, the date of enactment of

the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, which added section

101(a)(43) to the Act to define ``aggravated felony.'' See 8 U.S.C.

1101(a)(43). These comments argued that application of the aggravated

felony ban to convictions entered on or before November 19, 1988, is

inconsistent with the holding in Landgraf v. USI Film Products, 114 S.

Ct. 1483 (1994).

Several comments also criticized the proposed rule for barring

persons with aggravated felony convictions from eligibility for

withholding of deportation. The comments argued that the preclusion in

section 243(h)(2)(B) of the Act, 8 U.S.C. 1253(h)(2)(B), which bars a

grant of withholding to a person who, ``having been convicted of a

particularly serious crime, constitutes a danger to the community,''

requires a two-pronged finding: that the alien was convicted of a

particularly serious crime and that the alien constitutes a danger to

the community. The comments stated that the INS should not presume that

every aggravated felony is a particularly serious crime or that every

person convicted of such a crime is also a danger to the community.

Response and Disposition: These provisions of the rule are mandated

by the congressional enactments regarding limitations on the granting

of relief to criminal aliens. The definition of ``aggravated felony''

in section 101(a)(43) of the Act was added by section 7342 of the Anti-

Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181, 4469 (November

18, 1988). The Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978

(November 29, 1990) (1990 Act) defined additional crimes as aggravated

felonies and added further disabling provisions. E.g., 1990 Act

Sec. 501, 104 Stat. at 5048. In addition, section 515(a)(1) of the 1990

Act created section 208(d) of the Act, 8 U.S.C. 1158(d), which states

that an alien convicted of an aggravated felony ``may not apply for or

be granted asylum.'' 104 Stat. at 5053. Section 515(a)(2) of the 1990

Act amended section 243(h)(2) of the Act, 8 USC 1253(h)(2), to require

that, for purposes of the statutory bar to withholding of deportation,

``an alien who has been convicted of an aggravated felony shall be

considered to have committed a particularly serious crime.'' 104 Stat.

at 5053.

Neither section 208(d) nor section 243(h)(2) of the Act provides

for a ``balancing test'' to be employed in the case of a person

convicted of an aggravated felony. Such a person is barred from relief

without regard to the merits of his or her claim. Inclusion of

aggravated felonies as ``particularly serious crimes'' also is

consistent with the long-standing administrative interpretation of the

Act that crimes such as armed robbery, robbery, burglary, embezzlement,

and possession for sale of cocaine and heroin are ``particularly

serious crimes.'' Moreover, the Attorney General, through the Board of

Immigration Appeals, consistently has held that section 243(h)(2)(B)

compels the finding that an alien constitutes a danger to the community

if he or she has been convicted of a particularly serious crime. Matter

of A-A-, Interim Dec. 3176 (BIA 1992); Matter of K-, Interim Dec. 3163

(BIA 1991); Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified on

other grounds, Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988). Federal

courts have affirmed this position. See, e.g., Crespo-Gomez v. Richard,

780 F.2d 932 (11th Cir. 1986); Ramirez-Ramos v. INS, 814 F.2d 1394 (9th

Cir. 1987).

To the extent these provisions have a retroactive effect, such

effect clearly was intended by Congress and thus is permissible.

Landgraf, 114 S.Ct. at 1496. In enacting section 7342 of the Anti-Drug

Abuse Act of 1988, Congress defined certain crimes as aggravated

felonies without regard to the date of conviction. Section 515(b) of

the 1990 Act was amended by the Miscellaneous and Technical Immigration

and Naturalization Amendments of 1991, Pub. L. 102-232, December 12,

1991, 105 Stat. 1733, 1752, to mandate that the statutory bar in

section 208(d) of the Act applies to convictions entered before, on, or

after November 29, 1990, the effective date of the 1990 Act, and

applies to all applications for asylum made on or after the same date.

Congress also expressly limited the application of certain disabling

provisions (e.g., the deportation ground under section 241(a)(4) of the

Act and the ineligibility for voluntary departure under section 244(e)

of the Act), to an alien ``convicted, on or after the date of enactment

of [the 1988] Act, of an aggravated felony.'' Pub. L. 100-690

Secs. 7343(c) and 7344(b), 102 Stat. at 4470, 4471. If the term

``aggravated felony'' were to be interpreted to apply only to

convictions occurring on or after November 18, 1988, then the

prospective language that placed limits on the retroactivity of

specific sections of the 1988 Act would be redundant, in violation of

the maxim that no provision of a law should be construed to render a

word or clause surplus. Matter of A-A-, Interim Dec. 3176 (BIA 1992) at

8-10 and n.13.

It is clear that Congress intended to prohibit an alien who has

been convicted of an aggravated felony from applying for or being

granted asylum or withholding of deportation. Therefore, these

provisions of the proposed rule are adopted without amendment in the

final rule.

15. Discretionary Denial of Asylum (Section 208.14(e))

Proposed Rule: The proposed rule would have added a new section

208.14(e) to provide that an applicant who is otherwise eligible may be

denied asylum in the discretion of the Attorney General if the

applicant can and will be deported or returned to a country in which

the applicant would not face harm or persecution and would have access

to a full and fair asylum procedure, in accordance with bilateral or

multilateral arrangements with the United States governing such

matters.

Comments: A few comments endorsed this proposal. One comment noted

that the proposed rule would prevent ``country shopping'' and encourage

potential refugees to seek protection in the first country of refuge.

Another comment agreed that the proposed rule will be beneficial,

provided that a treaty or other formal agreement designate the ``safe

country.'' Another comment recommended that the proposed rule be

amended to prohibit an asylum application from a person applying for

admission at a Port of Entry and who departed for the United States or

is coming from a country which is signatory to either the 1951

Convention or the 1967 United Nations Protocol Relating to the Status

of Refugees, and in which the alien would not face harm or persecution

and would have access to a full and fair procedure for determining his

or her asylum claim.

However, most comments opposed giving asylum officers and

immigration judges the authority to deny asylum as a matter of

discretion on this ground to an otherwise qualified applicant. Several

comments claimed that these provisions do not establish acceptable

standards for refugee safety or due process in the receiving country,

and thus do not fulfill the requirements for a proposed rule under the

Administrative Procedure Act. Another comment warned that the ability

to determine what is a fair procedure for asylum should not be left to

the discretion of governmental agencies where political considerations

may play a large role.

A number of comments stated that refugees have the right to seek

protection in the country of choice and that many asylum-seekers choose

the United States because the countries through which they travel do

not offer adequate protection from discrimination or home-country

persecutors. Comments also argued that applicants may be deported to a

country in which they had never been present. Furthermore, courts have

held that an asylum-seeker may not be deported to a third country where

there are no assurances that the asylum seeker would not be indirectly

returned to the persecuting country, citing Amanullah v. Cobb, 862 F.2d

362 (1st Cir. 1988), vacated as moot, 872 F.2d 11 (1st Cir. 1989).

Under the proposed rule, an asylee also would be required to obtain

travel documents from his or her country of origin, which might

endanger the applicant or the applicant's family.

Other comments questioned how the United States would ascertain

that the asylee would be protected in the ``safe country.'' One comment

advocated that a careful and open review be conducted to determine that

procedures in the designated first country of asylum are carried out in

the same manner and with the same safeguards as asylum determinations

made within the United States. In addition, this commenter suggested,

there should be verifiable assurances that the denied applicant will be

treated by the ``safe country'' in a manner consistent with United

States legal obligations. Other comments expressed the opinion that a

``safe country'' may forcibly repatriate an asylee to the country of

persecution or that the asylee will be transferred from country to

country. Several comments stated that current rules regarding ``firm

resettlement'' adequately prevent forum shopping.

Other comments recommended modifications to the proposed rule. One

comment advocated that additional factors such as the presence of

family members in the United States, the applicant's ties (if any) to

the receiving country, and whether the applicant has a criminal record,

be used to determine whether or not to exercise the discretion to deny.

Another comment stated that only immigration judges should be

authorized to deny asylum under the proposed rule because only they

have the power to order aliens deported.

Response and Disposition: These comments have been considered

carefully. It must be emphasized that the discretionary authority

referred to in this provision is contingent upon bilateral or

multilateral agreements with other nations, and that no such agreements

now exist. In the absence of such agreements, discretionary authority

under this section cannot be exercised. Prior to the implementation of

any such agreement by the Department, public notice will be provided.

The Department is satisfied that the basic standard set forth in this

section is sufficient to protect the rights and interests of persons

entitled to protection from persecution in the event that the United

States enters such an agreement. In the meantime, most of the concerns

presented in the comments relate to how the discretionary authority

would be exercised. These concerns and others will be taken into

account if and when a bilateral or multilateral agreement on this

subject is made. This provision is retained in the final rule with an

amendment to clarify that the alien may be returned only to a country

through which the alien actually traveled en route to the United

States.

16. Issuance of Employment Authorization to Asylees (Section

208.20)

Proposed Rule: The proposed rule would have amended section 208.20

to provide that a person granted asylum who desires to work shall

receive an employment authorization document (EAD) expeditiously upon

application to the INS.

Comments: A comment stated that an asylee should not be required to

apply for an EAD, but should be issued an EAD along with notification

of the asylum decision.

Response and Disposition: The proposed amendments to section 208.20

are designed to ensure that asylees receive their EAD promptly upon

application. They do not create new requirements or obstacles for

asylees seeking authorization to work. Asylees are among the categories

of persons who are eligible for employment incident to their status but

must nevertheless apply for an employment authorization document. 8 CFR

274a.12(a)(5). Among others in this category are those aliens who are

admitted as refugees, granted withholding of deportation, or granted

Temporary Protected Status. Since authorization for employment is a

discretionary immigration benefit, the INS will continue to require

that persons in these categories file a separate application for an

EAD. Accordingly, this provision of the proposed rule will be retained

in the final rule with an amendment for clarity.

17. Aliens in Exclusion or Deportation Proceedings (Sections

236.3(a) and 242.17(c)(2))

Proposed Rule: These provisions require that in the case of an

alien in exclusion or deportation proceedings who expresses a fear of

harm or persecution upon return to his or her country of origin or

country of deportation, the immigration judge shall advise the alien

that he or she may apply for asylum or withholding of deportation and

shall make available the appropriate application forms. The proposed

rule would have amended these provisions to exempt situations where the

alien already has filed an asylum application and that application has

been referred to the immigration judge in accordance with the proposed

amendments to 8 CFR 208.14(b).

Comments: Several comments, all of which also criticized the direct

referral of asylum applications under 8 CFR 208.14(b), stated that

there should be no exception for situations where an asylum applicant

has been referred to an immigration judge. The comments argued that as

a result of this change, referred asylum applicants will receive less

procedural protection than other persons in removal proceedings.

Response and Disposition: These changes do not deny any substantive

procedural protection to asylum applicants. An applicant referred under

8 CFR 208.14(b) already has made an application for asylum, and thus

need not be advised of a right he or she has exercised. Referred

applicants will enjoy all the procedural rights accorded to other

persons in proceedings before an immigration judge. Accordingly, these

provisions of the proposed rule are adopted in the final rule, with

section 236.3(a) amended for clarity.

18. Use of Information in Application to Establish Deportability

(Section 242.17(e))

Proposed Rule: The proposed rule would have amended section

242.17(e) to expressly permit the INS to use information supplied in an

application for asylum as the basis for issuance of an Order to Show

Cause under 8 CFR 242.1 and thus initiate deportation proceedings.

Comments: A few comments criticized this amendment, stating that it

violates confidentiality by exposing the claims of applicants in

immigration court and violates due process by shifting the burden of

proof to establish deportability away from the INS. The comments stated

that this subsection would be an obstacle to the right to apply for

asylum because if the applicant's claim is denied, he or she faces

immediate deportation based on evidence provided in the application.

Some deserving applicants will avoid this risk and choose not to apply.

Response and Disposition: This aspect of the proposed rule is

necessary to promptly refer cases to an immigration judge for decision.

Often, the asylum application is the only source of information

available to the Service to initiate proceedings before the immigration

judge. Persons who choose not to file asylum applications for this

reason may forego their opportunity for consideration of their claim by

an asylum officer; if they are apprehended by the INS and placed

directly in proceedings, the immigration judge will have exclusive

jurisdiction over their cases. Immigration regulations need not be

designed to protect the ability of a person to remain unlawfully in the

United States without detection.

At the advice of the public, this provision will be amended for

clarity to provide that it applies to applications for asylum or

withholding of deportation filed on or after January 4, 1995.

The final rule will further amend section 242.17(e) to state that

an application made under section 242.17 may constitute an admission of

alienage or deportability if the alien has been properly served with

notice of the hearing before an immigration judge even in cases in

which the applicant has failed without excuse to appear for the

hearing. This amendment is necessary to enable the entry of orders of

deportation against aliens who are not lawfully present in the United

States, have been properly served with an Order to Show Cause, and fail

to appear for their hearing.

19. Employment Authorization for Persons in Proceedings (Section

274a.12(c)(13))

Proposed Rule: The proposed rule would eliminate 8 CFR

274a.12(c)(13), which provides that a person in exclusion or

deportation proceedings who is not detained and not subject to a final

order of deportation may apply for employment authorization.

Comments: Several comments opposed this change on the ground that

persons in deportation proceedings who have filed no applications for

relief, but who contest their exclusion or deportation on other

grounds, will have no other basis to obtain employment authorization

and support themselves.

Response and Disposition: As stated in the supplementary

information to the proposed rule, virtually all persons who are not

detained and are subject to exclusion or deportation proceedings are

eligible to apply for employment authorization under other provisions

of 8 CFR 274.12(c). Retaining this paragraph would be inconsistent with

the intent of this rule to limit access to employment authorization to

asylum applicants whose cases are granted or whose cases are not

decided promptly. Accordingly, this portion of the proposed rule is

adopted without amendment in the final rule.

20. Fee for Applications for Employment Authorization (Section 274a.13)

Proposed Rule: The proposed rule would have amended section 274a.13

to provide that an applicant for employment authorization under section

274a.12(c)(8) (relating to asylum applicants) must pay a fee upon both

the initial application and applications for renewal of work

authorization.

Comments: Numerous comments criticized the proposal for imposing a

filing fee upon asylum applicants. These comments are summarized under

heading 4. We consider these comments to be directed as well to the

proposal to charge a filing fee for initial applications for employment

authorization.

Response and Disposition: The Department has determined that the

final rule will require payment of a fee only upon application for

replacement or renewal of an employment authorization document. This is

consistent with the decision not to charge a fee for the filing of an

application for asylum. It also is reasonable to charge a renewal fee

to those who have previously been granted employment authorization. As

part of an ongoing comprehensive economic analysis of its entire fee

structure, the INS will examine alternative sources of funding for

employment authorization adjudications, including the possibility of a

user fee.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule will not have a significant adverse economic impact on a

substantial number of small entities, based upon the following factors.

This rule principally affects the adjudication of individual claims for

asylum and withholding of deportation and thus would have no

significant economic impact on small businesses, organizations, or

state or local governmental agencies. The amendments to regulations

concerning the issuance and renewal of employment authorization

documents could have a small and indirect impact upon business entities

by withholding employment authorization in certain cases.

The Department of Justice considers this rule to be a ``significant

regulatory action'' under section 3(f) of Executive Order 12866, and

accordingly submitted this rule to the Office of Management and Budget

for review.

The proposed 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 Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

The Attorney General has reviewed this rule in light of section

2(c) of Executive Order 12778 and finds that the rule meets the

applicable standards provided in section 2(b) of the order.

The information collection requirements contained in this rule have

been submitted to the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. Clearance numbers for these

collections are contained in 8 CFR 299.5, Display of Control Numbers.

The interim rule's amendments to 8 CFR 208.3(a) and 208.4(a) are

superseded by amendments made by this final rule. The interim rule's

amendments to 8 CFR 208.4(b) are adopted without amendment as part of

this final rule.

List of Subjects

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

1. The authority citation for part 208 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.

9701; 8 CFR part 2.

2. Section 208.1 is amended by:

a. Revising in paragraph (a) the first sentence;

b. Removing in paragraph (a), in the second and fourth sentences,

the phrase ``October 1, 1990'' and adding in its place ``January 4,

1995'';

c. Adding to paragraph (a) a new sentence at the end of the

paragraph;

d. Revising in paragraph (b) the second sentence; and

e. Removing in paragraph (c) the phrase ``assist the Deputy

Attorney General and the Director of the Asylum Policy and Review Unit,

in coordination'' and adding in its place the word ``coordinate'', to

read as follows:

Sec. 208.1 General.

(a) This part shall apply to all applications for asylum or

withholding of deportation, whether before an asylum officer or an

immigration judge, that are filed on or after January 4, 1995 or

pending as of January 4, 1995. * * * The provisions of this part

relating to a person convicted of an aggravated felony, as defined in

section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43), shall apply to

applications for asylum or withholding of deportation that are filed on

or after November 29, 1990.

(b) * * * These shall include a corps of professional asylum

officers who are to receive special training in international human

rights law, conditions in countries of origin, and other relevant

national and international refugee laws. * * *

* * * * *

3. Section 208.2 is amended by:

a. Removing in paragraph (a) the second sentence and adding in its

place three new sentences; and

b. Removing in paragraph (b) the second and third sentences and

adding in their place three new sentences, to read as follows:

Sec. 208.2 Jurisdiction.

(a) * * * An application that is complete within the meaning of

Sec. 208.3(c)(5) shall be either adjudicated or referred by asylum

officers under this part in accordance with Sec. 208.14. With the

exception of cases involving crewmen, stowaways, or aliens temporarily

excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), which are

within the jurisdiction of an asylum officer pursuant to Sec. 253.1(f)

of this chapter, an asylum officer shall not decide whether an alien is

entitled to withholding of deportation under section 243(h) of the Act,

8 U.S.C. 1253(h). An application that is incomplete within the meaning

of Sec. 208.3(c)(5) shall be returned to the applicant.

(b) * * * The immigration judge shall make a determination on such

claims. In cases where the adjudication of an application has been

referred in accordance with Sec. 208.14, that application shall be

forwarded with the charging document to the Office of the Immigration

Judge by the Asylum Office. As a matter of discretion, the immigration

judge may permit the applicant to amend the application, but any delay

caused by such a request shall extend the period within which the

applicant may not apply for employment authorization in accordance with

Sec. 208.7(a).

4. Section 208.3 is amended by revising paragraph (a) and adding a

new paragraph (c), to read as follows:

Sec. 208.3 Form of application.

(a) An application for asylum or withholding of deportation shall

be made on Form I-589 (Application for Asylum and for Withholding of

Deportation) and shall be submitted, together with any additional

supporting material, in triplicate, meaning the original plus two

copies. The applicant's spouse and children as defined in section 101

of the Act, 8 U.S.C. 1101(a)(35) and 1101(b)(1), may be included on the

application if they are in the United States. One additional copy of

the principal applicant's I-589 must be submitted for each dependent

listed on the principal's application. An application shall be

accompanied by one completed Form FD-258 (Fingerprint Card) for every

individual included on the application who is 14 years of age or older.

Forms I-589 and FD-258 are available from the INS and from the Offices

of Immigration Judges. The application for asylum or withholding of

deportation also shall be accompanied by a total of two photographs of

each applicant and two photographs of each dependent included on the

application.

* * * * *

(c) The application (Form I-589) shall be filed under the following

conditions and shall have the following consequences, as shall be noted

in the instructions on the application:

(1) Information provided in completing the application may be used

as a basis for the institution of, or as evidence in, exclusion

proceedings in accordance with part 236 of this chapter or deportation

proceedings in accordance with part 242 of this chapter;

(2) Information provided in the application may be used to satisfy

the burden of proof of the INS in establishing the applicant's

deportability under part 242 of this chapter;

(3) Mailing to the address provided by the applicant on the

application or the last change of address form (INS Form AR-11), if

any, received by the INS shall constitute adequate service of all

notices or other documents, except a Notice to Alien Detained for

Hearing by an Immigration Judge (Form I-122), service of which is

governed by Sec. 235.6 of this chapter, and an Order to Show Cause

(Form I-221), service of which is governed by section 242B(a)(1) of the

Act, 8 U.S.C. 1252b(a)(1);

(4) The applicant and anyone other than an immediate relative who

assists the applicant in preparing the application must sign the

application under penalty of perjury. The applicant's signature is

evidence that the applicant is aware of the contents of the

application. A person other than an immediate relative who assists the

applicant in preparing the application also must provide his or her

full mailing address;

(5) An application for asylum and for withholding of deportation

that does not include a response to each of the questions contained in

the Form I-589, that is unsigned, or that is unaccompanied by the

required materials specified in paragraph (a) of this section is

incomplete. An application that is incomplete shall be returned by mail

to the applicant within 30 days of the receipt of the application by

the INS. The filing of an incomplete application shall not commence the

150-day period after which the applicant may file an application for

employment authorization in accordance with Sec. 208.7(a)(1). If an

application has not been mailed to the applicant within 30 days, it

shall be deemed complete; and

(6) Knowing placement of false information on the application may

subject the person placing that information on the application to

criminal penalties under title 18 of the United States Code and to

civil penalties under section 274C of the Act, 8 U.S.C. 1324c. 5.

Section 208.4 is amended by revising paragraph (a) to read as follows:

Sec. 208.4 Filing the application.

* * * * *

(a) With the Service Center by mail. Except as provided in

paragraphs (b) and (c) of this section, applications for asylum or

withholding of deportation shall be filed directly by mail with the

Service Center servicing the Asylum Office with jurisdiction over the

place of the applicant's residence or, in the case of an alien without

a United States residence, the applicant's current lodging or the land

border port of entry through which the alien seeks admission to the

United States. The addresses of the Service Centers shall be made

available through the local INS Information Unit. Upon receipt of the

application, except in the case of an alien who has been convicted of

an aggravated felony, the Service Center shall forward a copy of the

application to the Department of State.

* * * * *

6. Section 208.7 is amended by:

a. Revising the section heading;

b. Revising paragraph (a);

c. Revising in paragraph (b) the introductory text;

d. Adding a new paragraph (b)(3);

e. Removing, wherever it appears in the introductory text to

paragraph (c), the phrase ``Asylum Officer'' and adding in its place

the phrase ``asylum officer'';

f. Removing, wherever it appears in the introductory text to

paragraph (c), the phrase ``District Director'' and adding in its place

the phrase ``district director'';

g. Removing in the introductory text to paragraph (c) the phrase

``Immigration Judge'' and adding in its place the phrase ``immigration

judge'';

h. Removing in paragraph (c)(1) the phrase ``before the Immigration

Judge'' and adding in its place the phrase ``before the immigration

judge'';

i. Removing in paragraph (c)(2) the phrase ``by the Immigration

Judge'' and adding in its place the phrase ``by the immigration

judge''; and

j. Removing in paragraph (d) the word ``sixty'' and adding in its

place ``ninety'', to read as follows:

Sec. 208.7 Employment authorization.

(a) (1) An applicant for asylum who has not been convicted of an

aggravated felony shall be eligible pursuant to Secs. 274a.12(c)(8) and

274a.13(a) of this chapter to submit an Application for Employment

Authorization (Form I-765). The application shall be submitted no

earlier than 150 days after the date on which a complete application

for asylum submitted in accordance with Secs. 208.3 and 208.4 of this

part has been received. If an application for asylum has been returned

as incomplete in accordance with Sec. 208.3(c)(5), the 150-day period

will commence upon receipt by the INS of a complete application for

asylum. An applicant whose application for asylum has been denied by an

asylum officer or by an immigration judge within the 150-day period

shall not be eligible to apply for employment authorization. After the

expiration of the 150-day period, the INS shall have 30 days from the

date of filing of an initial application for employment authorization

to grant or deny that application. If the INS fails to adjudicate the

asylum application within that period, the alien shall be eligible for

interim employment authorization under this chapter. If an application

for asylum is denied by an immigration judge or an asylum officer

within the 30-day period, but prior to a decision on the application

for employment authorization, the application for employment

authorization shall be denied.

(2) An applicant who has been convicted of an aggravated felony

shall not be granted employment authorization. In cases where an

applicant has previously received employment authorization and his or

her application for asylum or withholding of deportation is denied

because the applicant has been convicted of an aggravated felony, the

employment authorization shall terminate as of the date of the denial.

(3) For purposes of this paragraph (a), the time periods within

which the alien may not apply for employment authorization and within

which the INS must respond to any such application shall begin when the

alien has filed a complete asylum application in accordance with

Secs. 208.3 and 208.4. Any delay requested or caused by the applicant

shall not be counted as part of these time periods. Such time periods

also shall be extended by the equivalent of the time between issuance

of a request for evidence under Sec. 103.2(b)(8) of this chapter and

the receipt of the applicant's response to such request.

(4) An applicant who fails without good cause to appear for a

scheduled interview before an asylum officer or a hearing before an

immigration judge shall not be granted employment authorization

pursuant to Sec. 274a.12(c)(8) of this chapter.

(5) The provisions of paragraphs (a) (1), (3), and (4) of this

section shall apply to persons who have filed an application for asylum

or withholding of deportation on or after January 4, 1995.

(b) Subject to the restrictions in paragraph (b)(3) of this

section, employment authorization shall be renewable, in increments to

be determined by the Commissioner, for the continuous period of time

necessary for the asylum officer or immigration judge to decide the

asylum application and, if necessary, for final adjudication of any

administrative or judicial review.

* * * * *

(3) If an application for asylum filed on or after November 29,

1990 is denied pursuant to Sec. 208.14(c)(4) or Sec. 208.16(c)(2)(ii)

because the applicant has been convicted of an aggravated felony, any

employment authorization previously issued under Sec. 208.7(a) shall

automatically terminate as of the date of the denial.

* * * * *

7. Section 208.8 is revised to read as follows:

Sec. 208.8 Limitations on travel outside the United States.

An applicant who leaves the United States pursuant to advance

parole granted under 8 CFR 212.5(e) shall be presumed to have abandoned

his application under this section if he returns to the country of

claimed persecution unless the applicant is able to establish

compelling reasons for such return.

8. Section 208.9 is amended by:

a. Revising paragraphs (a), (b), (c), (d), and (e);

b. Removing from paragraph (f) the phrase ``Bureau of Human Rights

and Humanitarian Affairs of the'' and the phrase ``, the Asylum Policy

and Review Unit of the Department of Justice,''; and

c. Adding a new paragraph (g), to read as follows:

Sec. 208.9 Interview and procedure.

(a) For each application for asylum or withholding of deportation

that is complete within the meaning of Sec. 208.3(c)(5) and that is

within the jurisdiction of the Office of Refugees, Asylum, and Parole,

an interview shall be conducted by an asylum officer, either at the

time of the application or at a later date to be determined by the

Asylum Office. Applications within the jurisdiction of an immigration

judge are to be adjudicated under the rules of procedure established by

the Executive Office for Immigration Review in parts 3, 236, and 242 of

this chapter.

(b) The asylum officer shall conduct the interview in a

nonadversarial manner and, at the request of the applicant, separate

and apart from the general public. The purpose of the interview shall

be to elicit all relevant and useful information bearing on the

applicant's eligibility for the form of relief sought. At the time of

the interview, the applicant must provide complete information

regarding his or her identity, including name, date and place of birth,

and nationality, and may be required to register this identity

electronically or through any other means designated by the Attorney

General. The applicant may have counsel or a representative present,

may present witnesses, and may submit affidavits of witnesses and other

evidence.

(c) The asylum officer shall have authority to administer oaths,

verify the identity of the applicant (including through the use of

electronic means), verify the identity of any interpreter, present and

receive evidence, and question the applicant and any witnesses.

(d) Upon completion of the interview, the applicant or his

representative shall have an opportunity to make a statement or comment

on the evidence presented. The asylum officer, in his or her

discretion, may limit the length of such statement or comment and may

require their submission in writing. Upon completion of the interview,

the applicant shall be informed that he or she must appear in person to

receive and to acknowledge receipt of the decision of the asylum

officer and any other accompanying material at a time and place

designated by the asylum officer. An applicant's failure to appear to

receive and acknowledge receipt of the decision shall be treated as

delay caused by the applicant for purposes of Sec. 208.7(a)(3) and

shall extend the period within which the applicant may not apply for

employment authorization by the number of days until the applicant does

appear to receive and acknowledge receipt of the decision or until the

applicant appears before an immigration judge in response to the

issuance of a charging document under Sec. 208.14(b).

(e) The asylum officer shall consider evidence submitted by the

applicant together with his or her asylum application, as well as any

evidence submitted by the applicant before or at the interview. As a

matter of discretion, the asylum officer may grant the applicant a

brief extension of time following an interview during which the

applicant may submit additional evidence. Any such extension shall

extend by equivalent time the periods specified by Sec. 208.7 for the

filing and adjudication of employment authorization applications.

* * * * *

(g) An applicant unable to proceed with the interview in English

must provide, at no expense to the INS, a competent interpreter fluent

in both English and the applicant's native language. The interpreter

must be at least 18 years of age. Neither the applicant's attorney or

representative of record nor a witness testifying on the applicant's

behalf may serve as the applicant's interpreter. Failure without good

cause to comply with this paragraph may be considered a failure without

good cause to appear for the interview for purposes of Sec. 208.10.

9. Section 208.10 is amended by:

a. Revising the first sentence; and

b. Removing, wherever it appears in the second and third sentences,

the phrase ``Asylum Officer'' and adding in its place the phrase

``asylum officer'', to read as follows:

Sec. 208.10 Failure to appear.

The failure without good cause of an applicant to appear for a

scheduled interview under Sec. 208.9(a) may be deemed to constitute a

waiver of the right to an interview with an asylum officer or, in the

case of an alien crewman, stowaway, alien temporarily excludable under

section 235(c) of the Act, 8 U.S.C. 1225, or alien currently in lawful

immigration status, may be deemed to constitute an abandonment of the

application. * * *

10. Section 208.11 is revised to read as follows:

Sec. 208.11 Comments from the Department of State.

(a) At its option, the Department of State may provide detailed

country conditions information addressing the specific conditions

relevant to eligibility for refugee status according to the grounds

specified in section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42). Any

such information relied upon by an immigration judge in deciding a

claim for asylum or withholding of deportation shall be made part of

the record and the parties shall be provided an opportunity to review

and respond to such information prior to the issuance of a decision.

(b) At its option, the Department of State also may comment on an

application it receives pursuant to Sec. 208.4(a), Sec. 236.3, or

Sec. 242.17 of this chapter by providing:

(1) An assessment of the accuracy of the applicant's assertions

about conditions in his or her country of nationality or habitual

residence and his or her particular situation;

(2) Information about whether persons who are similarly situated to

the applicant are persecuted in his or her country of nationality or

habitual residence and the frequency of such persecution;

(3) Such other information as it deems relevant.

(c) Asylum officers and immigration judges may request specific

comments from the Department of State regarding individual cases or

types of claims under consideration, or such other information as they

deem appropriate. Any such comments shall be made part of the record.

Unless the comments are classified under Executive Order 12356 (3 CFR,

1982 Comp., p. 166), the applicant shall be provided an opportunity to

review and respond to such comments prior to the issuance of an adverse

decision.

Sec. 208.12 [Amended]

11. In Sec. 208.12, paragraph (a) is amended by:

a. Removing the phrase ``the Asylum Policy and Review Unit,'';

b. Removing the phrase ``Asylum Officer'' and adding in its place

the phrase ``asylum officer'';

c. Removing the phrase ``District Director'' and adding in its

place the phrase ``district director''; and

d. Removing the second sentence.

Sec. 208.13 [Amended]

12. Sec. 208.13 is amended by:

a. Removing in paragraph (b)(1)(ii), the last sentence, the

citation ``Sec. 208.14(c)'' and adding in its place the citation

``Sec. 208.14(d)'';

b. Removing in paragraph (b)(2)(ii) the phrase ``Asylum Officer''

and adding in its place the phrase ``asylum officer''; and

c. Removing in paragraph (b)(2)(ii) the phrase ``Immigration

Judge'' and adding in its place the phrase ``immigration judge''.

13. Section 208.14 is amended by:

a. Revising the section heading;

b. Removing in paragraph (a) the phrase ``Immigration Judge'' and

adding in its place the phrase ``immigration judge'';

c. Removing in paragraph (a) the words ``or Asylum Officer'';

d. Removing in paragraph (a) the phrase ``paragraph (c)'' and

adding in its place the phrase ``paragraph (d)'';

e. Removing in paragraph (b) the phrase ``paragraph (c)'' and

adding in its place the phrase ``paragraph (d)'';

f. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d)

respectively;

g. Adding a new paragraph (b);

h. Removing in redesignated paragraph (d)(2) the word ``or'' at the

end of the paragraph;

i. Removing in redesignated paragraph (d)(3) the ``.'' at the end

of the paragraph and adding in its place ``; or'';

j. Adding a new paragraph (d)(4); and

k. Adding a new paragraph (e), to read as follows:

Sec. 208.14 Approval, denial, or referral of application.

* * * * *

(b) (1) An asylum officer may grant asylum in the exercise of

discretion to an applicant who qualifies as a refugee under section

101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), unless otherwise

prohibited by paragraph (d) of this section.

(2) In the case of an alien (other than a crewman, stowaway, or

alien temporarily excluded under section 235(c) of the Act, 8 U.S.C.

1225(c)) who shall appear to be deportable under section 241 of the

Act, 8 U.S.C. 1251, or excludable under section 212 of the Act, 8

U.S.C. 1182, the asylum officer shall either grant asylum or refer the

application to an immigration judge for adjudication in deportation or

exclusion proceedings commenced in accordance with part 236 or part 242

of this chapter. An asylum officer may refer such an application after

an interview conducted in accordance with Sec. 208.9 or if, in

accordance with Sec. 208.10, the applicant is deemed to have waived his

or her right to an interview.

(3) In the case of a crewman, stowaway, or alien temporarily

excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), the asylum

officer may grant or deny asylum in accordance with the procedures set

forth in Sec. 253.1(f) of this chapter. In addition, where an

application filed by such a person is not granted, the asylum officer

shall issue a Notice of Intent to Deny to the applicant stating the

reasons why the application would be denied. The applicant shall be

given a period not less than 10 days to rebut the Notice of Intent to

Deny.

(4) In the case of a person other than described in paragraphs (b)

(2) and (3) of this section, the asylum officer may grant or deny

asylum.

(5) No application for asylum or withholding of deportation shall

be subject to denial under the authority contained in Sec. 103.2(b) of

this chapter.

* * * * *

(d) * * *

(4) The alien has been convicted of an aggravated felony, as

defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).

(e) Discretionary denials. An application from an alien may be

denied in the discretion of the Attorney General if the alien can and

will be deported or returned to a country through which the alien

traveled en route to the United States and in which the alien would not

face harm or persecution and would have access to a full and fair

procedure for determining his or her asylum claim in accordance with a

bilateral or multilateral arrangement with the United States governing

such matter.

14. Sec. 208.16 is amended by:

a. Revising paragraph (a);

b. Removing in paragraph (b)(4) the phrase ``Asylum Officer'' and

adding in its place the phrase ``asylum officer'';

c. Removing in paragraph (b)(4) the phrase ``Immigration Judge''

and adding in its place the phrase ``immigration judge''; and

d. Revising paragraph (c)(2)(ii), to read as follows:

Sec. 208.16 Entitlement to withholding of deportation.

(a) Consideration of application for withholding of deportation.

With the exception of cases that are within the jurisdiction of an

asylum officer pursuant to Sec. 253.1(f) of this chapter, an asylum

officer shall not decide whether an alien is entitled to withholding of

deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). If the

application for asylum is granted, no decision on withholding of

deportation will be made unless and until the grant of asylum is later

revoked or terminated, and exclusion or deportation proceedings at

which a new request for withholding of deportation is made are

commenced. In such proceedings, an immigration judge may adjudicate

both a renewed asylum claim and a request for withholding of

deportation simultaneously whether or not asylum is granted.

* * * * *

(c) * * *

(2) * * *

(ii) The alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the community of

the United States. An alien who has been convicted of an aggravated

felony shall be considered to have committed a particularly serious

crime and to constitute a danger to the community of the United States;

* * * * *

15. Section 208.17 is revised to read as follows:

Sec. 208.17 Decision.

The decision of an asylum officer to grant or to deny asylum or

withholding of deportation, or to refer an application in accordance

with Sec. 208.14(b), shall be communicated in writing to the applicant,

to the Assistant Commissioner, Refugees, Asylum, and Parole, and to the

district director having jurisdiction over the place of the applicant's

residence or over the port of entry from which the applicant sought

admission to the United States. A letter communicating denial of the

application shall state why asylum or withholding of deportation was

denied. The letter also shall contain an assessment of the applicant's

credibility, unless the application was denied pursuant to

Sec. 208.14(d)(4) or Sec. 208.16(c)(2)(ii).

Pursuant to Sec. 208.9(d), an applicant must appear in person to

receive and to acknowledge receipt of the decision.

16. In Sec. 208.18, paragraphs (a) and (b) are revised to read as

follows:

Sec. 208.18 Review of decisions and appeal.

(a) The Assistant Commissioner, Office of Refugees, Asylum, and

Parole, may review decisions by asylum officers. Parties shall have no

right of appeal to or right to appear before the Assistant Commissioner

in the course of such review.

(b) Except as provided in Sec. 253.1(f) of this chapter, there

shall be no appeal from a decision of an asylum officer. In a case

referred to an immigration judge in accordance with Sec. 208.14(b), the

supervisory asylum officer, pursuant to the authority set forth in

Secs. 235.6(a) and 242.1(a) of this chapter, shall issue respectively a

Notice to Applicant for Admission Detained for Hearing Before

Immigration Judge (Form I-122) or an Order to Show Cause (Form I-221).

* * * * *

17. Section 208.20 is revised to read as follows:

Sec. 208.20 Approval and employment authorization.

An alien granted asylum and eligible derivative family members are

authorized to be employed in the United States pursuant to

Sec. 274a.12(a)(5) of this chapter and if intending to be employed,

must apply to the INS for a document evidencing such authorization. The

INS shall issue such document within 30 days of the receipt of the

application therefor.

18. Section 208.21 is amended by:

a. Revising the introductory text in paragraph (a);

b. Redesignating paragraph (a)(3) as paragraph (a)(4);

c. Removing at the end of paragraph (a)(2) the word ``or''; and

d. Adding a new paragraph (a)(3), to read as follows:

Sec. 208.21 Admission of asylee's spouse and children.

(a) Eligibility. A spouse, as defined in section 101(a)(35) of the

Act, 8 U.S.C. 1101(a)(35), or child, as defined in section

101(b)(1)(A), (B), (C), (D), (E), or (F) of the Act, 8 U.S.C.

1101(b)(1)(A), (B), (C), (D), (E), or (F), also may be granted asylum

if accompanying or following to join the principal alien who was

granted asylum, unless it is determined that:

* * * * *

(3) The spouse or child has been convicted of an aggravated felony,

as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43); or

* * * * *

19. Section 208.24 is amended by:

a. Revising the heading and introductory text in paragraph (a);

b. Revising the introductory text in paragraph (b);

c. Revising paragraph (c);

d. Removing in paragraph (a)(3) the citation ``208.14(c)'' and

adding in its place the citation ``208.14(d)'';

e. Removing paragraph (f); and

f. Redesignating paragraph (g) as paragraph (f), to read as

follows:

Sec. 208.24 Revocation of asylum or withholding of deportation.

(a) Revocation of asylum by the Assistant Commissioner, Office of

Refugees, Asylum, and Parole. Upon motion by the Assistant Commissioner

and following an interview by an asylum officer, the grant to an alien

of asylum made under the jurisdiction of an asylum officer or a

district director may be revoked if, by a preponderance of the

evidence, the INS establishes that: * * *

(b) Revocation of withholding of deportation by the Assistant

Commissioner, Office of Refugees, Asylum, and Parole. Upon motion by

the Assistant Commissioner and following an interview by an asylum

officer, the grant to an alien of withholding of deportation made under

the jurisdiction of an asylum officer or a district director may be

revoked if, by a preponderance of the evidence, the INS establishes

that:

* * * * *

(c) Notice to applicant. Upon motion by the Assistant Commissioner

to revoke asylum status or withholding of deportation, the alien shall

be given notice of intent to revoke, with the reason therefore, at

least thirty days before the interview by the asylum officer. The alien

shall be provided the opportunity to present evidence tending to show

that he or she is still eligible for asylum or withholding of

deportation. If the asylum officer determines that the alien is no

longer eligible for asylum or withholding of deportation, the alien

shall be given written notice that asylum status or withholding of

deportation along with employment authorization are revoked.

Notwithstanding any provision of this section, an alien granted asylum

or withholding of deportation who is subject to revocation because he

or she has been convicted of an aggravated felony is not entitled to an

interview before an asylum officer.

* * * * *

PART 236--EXCLUSION OF ALIENS

20. The authority citation for part 236 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.

21. Section 236.3 is amended by:

a. Revising the introductory text in paragraph (a);

b. Removing from the first sentence in paragraph (b) the citation

``Sec. 208.4(b)'' and adding in its place the citation

``Sec. 208.4(c)'';

c. Revising the second sentence in paragraph (b);

d. Removing, wherever it appears in paragraph (c), the phrase

``Immigration Judge'' and adding in its place the phrase ``immigration

judge'';

e. Removing, wherever it appears in paragraph (c)(4), the phrase

``Trial Attorney'' and adding in its place the phrase ``trial

attorney'';

f. Removing in paragraph (d) the phrase ``Immigration Judge'' and

adding in its place the phrase ``immigration judge''; and

g. Removing in paragraph (d) the phrase ``Trial Attorney'' and

adding in its place the phrase ``trial attorney'', to read as follows:

Sec. 236.3 Applications for asylum or withholding of deportation.

(a) If the alien expresses fear of persecution or harm upon return

to his or her country of origin or to a country to which the alien may

be deported after a determination of excludability from the United

States pursuant to part 237 of this chapter, and the alien has not been

referred to the immigration judge by an asylum officer in accordance

with Sec. 208.14(b) of this chapter, the immigration judge shall: * * *

(b) * * * Upon receipt of an application that has not been referred

by an asylum officer, the Office of the Immigration Judge shall forward

a copy to the Department of State pursuant to Sec. 208.11 of this

chapter and shall calendar the case for a hearing. * * *

* * * * *

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

22. The authority citation for part 242 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,

1252b, 1254, 1362; 8 CFR part 2.

23. 242.17 is amended by:

a. Removing, wherever it appears in paragraph (c)(1), the phrase

``Immigration Judge'' and adding in its place the phrase ``immigration

judge'';

b. Revising the introductory text in paragraph (c)(2);

c. Removing from the first sentence in paragraph (c)(3) the

citation ``Sec. 208.4(b)'' and adding in its place the citation

``Sec. 208.4(c)'';

d. Revising the second sentence in paragraph (c)(3);

e. Removing from the third sentence in paragraph (c)(3) the phrase

``Trial Attorney'' and adding in its place the phrase ``trial

attorney'';

f. Removing, wherever it appears in paragraph (c)(4), the phrase

``Immigration Judge'' and adding in its place the phrase ``immigration

judge'';

g. Removing in paragraph (c)(4)(iv) the phrase ``Trial Attorney''

and adding in its place the phrase ``trial attorney'';

h. Removing in paragraph (c)(5) the phrase ``Immigration Judge''

and adding in its place the phrase ``immigration judge'';

i. Removing in paragraph (c)(5) the phrase ``Trial Attorney'' and

adding in its place the phrase ``trial attorney''; and

j. Adding in paragraph (e) a new sentence immediately after the

first sentence, to read as follows:

Sec. 242.17 Ancillary matters, applications.

* * * * *

(c) * * *

(2) If the alien expresses fear of persecution or harm upon return

to any of the countries to which the alien might be deported pursuant

to paragraph (c)(1) of this section, and the alien has not previously

filed an application for asylum or withholding of deportation that has

been referred to the immigration judge by an asylum officer in

accordance with Sec. 208.14(b) of this chapter, the immigration judge

shall: * * *

(3) * * * Upon receipt of an application that has not been referred

by an asylum officer, the Office of the Immigration Judge shall forward

a copy to the Department of State pursuant to Sec. 208.11 of this

chapter and shall calendar the case for a hearing. * * *

* * * * *

(e) * * * However, nothing in this section shall prohibit the INS

from using information supplied in an application for asylum or

withholding of deportation submitted to an asylum officer pursuant to

Sec. 208.2 of this chapter on or after January 4, 1995 as the basis for

issuance of an Order to Show Cause under Sec. 242.1 or to establish

alienage or deportability in a case referred to an immigration judge

under Sec. 208.14(b) of this chapter.

24. Sec. 242.18 is amended by:

a. Revising the section heading;

b. Removing, wherever it appears in paragraph (a), the phrase

``special inquiry officer'' and adding in its place the phrase

``immigration judge'';

c. Removing, wherever it appears in paragraph (b), the phrase

``special inquiry officer'' and adding in its place the phrase

``immigration judge'';

d. Revising the heading in paragraph (c); and

e. Removing, wherever it appears in paragraph (c), the phrase

``special inquiry officer'' and adding in its place the phrase

``immigration judge'', to read as follows:

Sec. 242.18 Decision of the immigration judge.

* * * * *

(c) Order of the immigration judge. * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

25. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

26. Section 274a.12 is amended by:

a. Revising paragraph (c)(8);

b. Revising the first sentence in paragraph (c)(10);

c. Removing in paragraph (c)(11) the word ``emergent'' and adding

in its place the word ``emergency''; and

d. Removing and reserving paragraph (c)(13), to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *

(c) * * *

(8) An alien who has filed a complete application for asylum or

withholding of deportation pursuant to part 208 of this chapter, whose

application has not been decided, and who is eligible to apply for

employment authorization under Sec. 208.7 of this chapter because the

150-day period set forth in that section has expired. Employment

authorization may be granted according to the provisions of Sec. 208.7

of this chapter in increments to be determined by the Commissioner and

shall expire on a specified date;

* * * * *

(10) An alien who has filed an application for suspension of

deportation pursuant to part 244 of this chapter, if the alien

establishes an economic need to work. * * *

* * * * *

(13) [Reserved].

* * * * *

27. Sec. 274a.13 is amended by revising paragraph (a), and the

first sentence in paragraph (d), to read as follows:

Sec. 274a.13 Application for employment authorization.

(a) General. Aliens authorized to be employed under

Sec. 274a.12(a)(3)-(8) and (10)-(13) must file an Application for

Employment Authorization (Form I-765) in order to obtain documentation

evidencing this fact.

(1) Aliens who may apply for employment authorization under

Sec. 274a.12(c) of this part, except for those who may apply under

Sec. 274a.12(c)(8), shall file a Form I-765 with the district director

having jurisdiction over the applicant's residence, or the district

director having jurisdiction over the port of entry at which the alien

applies, or with such other INS office as the Commissioner may

designate. The approval of applications filed under Sec. 274a.12(c) of

this part, except for Sec. 274a.12(c)(8), shall be within the

discretion of the district director. Where economic necessity has been

identified as a factor, the alien must provide information regarding

his or her assets, income, and expenses in accordance with instructions

on Form I-765.

(2) An initial application for employment authorization (Form I-

765) filed under Sec. 274a.12(c)(8) of this part shall be filed in

accordance with the instructions on or attached to Form I-765, with the

appropriate Service Center or with such other INS office as the

Commissioner may designate. The applicant also must submit a copy of

the underlying application for asylum or withholding of deportation,

together with evidence that the application has been filed in

accordance with Secs. 208.3 and 208.4 of this chapter. An application

for an initial employment authorization filed in relation to a pending

claim for asylum shall be adjudicated in accordance with Sec. 208.7 of

this chapter. An application for renewal or replacement of employment

authorization submitted in relation to a pending claim for asylum, as

provided for in Sec. 208.7 of this chapter, shall be filed, with fee or

with application for waiver of such fee, in accordance with the

instructions on or attached to Form I-765, with the appropriate Service

Center or with such other INS office as the Commissioner may designate.

The Service Center shall adjudicate the application within 30 days of

receipt.

* * * * *

(d) Interim employment authorization. The district director shall

adjudicate the application within 90 days from the date of receipt of

the application by the INS, except in the case of an initial

application for employment authorization under Sec. 274a.12(c)(8),

which is governed by paragraph (a)(2) of this section. * * *

PART 299--IMMIGRATION FORMS

28. The authority citation for Part 299 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

29. The table in Sec. 299.5 is amended by revising the entry for

form I-589 to read as follows:

Sec. 299.5 Display of control numbers.

* * * * *

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

Currently

assigned

INS form No. INS form title OMB

control

No.

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

*****

I-589....... Application for Asylum and for Withholding of 115-0086

Deportation.

*****

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

Dated: November 29, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-29724 Filed 12-2-94; 8:45 am]

BILLING CODE 4410-01-P