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 103, 208, 236, 242, and 274a

[INS No. 1651-93; AG Order No. 1862-94]

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: Proposed rule.

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SUMMARY: This rule would amend existing regulations to streamline the

adjudication of asylum applications submitted to Asylum Officers within

the Immigration and Naturalization Service (INS). The rule would allow

the INS to grant asylum to deserving applicants more promptly and to

resolve expeditiously the great number of meritless and abusive

applications being filed each year. Under the rule, Asylum Officers

would no longer prepare detailed denials in cases where they do not

grant asylum to applicants who have no legal immigration status, but

instead would automatically issue mandatory referrals of these

applications to Immigration Judges for completion of the adjudication

as part of exclusion or deportation proceedings. In addition, the rule

makes interviews discretionary, authorizing the Asylum Officers to

refer claims immediately to Immigration Judges. The rule also would

restrict employment authorization to applicants for asylum or

withholding of deportation whose claims have been pending for more than

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

complete application and would not include delays sought or caused by

the applicant. This rule also would conform existing regulations to the

current practice of receiving applications for asylum and withholding

of deportation at the four INS Service Centers. To provide necessary

funding for the asylum adjudications process, the rule would provide

for imposition of a filing fee for asylum applications and for

employment authorization applications based on a pending asylum

application.

DATES: Written comments must be submitted on or before May 31, 1994.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, room 5307, 425 I Street NW., Washington, DC

20536. To ensure proper handling please reference INS No. 1651-93 on

your correspondence.

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:

Background

The Refugee Act of 1980, Public Law 96-212, amended the Immigration

and Nationality Act (``Act'') by adding a new section 208 to require

the Attorney General to establish a procedure for any alien who is

physically present in the United States or at a land border or port of

entry, regardless of such alien's status, to apply for asylum. 8 U.S.C.

1158. Under 8 CFR part 208, effective October 1, 1990, applications for

asylum or withholding of deportation filed by aliens who are not

subject to exclusion or deportation proceedings, as well as the

applications of alien crewmen, stowaways, and aliens temporarily

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

adjudicated in the first instance by a corps of professional Asylum

Officers in the Office of Refugees, Asylum, and Parole. 8 CFR 208.1,

208.2, 208.4, and 253.1(f). An Asylum Officer conducts a nonadversarial

interview with an applicant to elicit all relevant and useful

information bearing on the applicant's eligibility for asylum, and has

authority to receive other evidence bearing on the claim. 8 CFR 208.9.

When an Asylum Officer intends to deny an application in reliance upon

any materials identified in 8 CFR 208.12, that material must be

identified, and unless the material is classified, the applicant must

be provided with an opportunity to inspect, explain, and rebut the

material. The Asylum Officer must decide whether to grant or deny the

application after review of the properly submitted rebuttal. If the

Officer denies the application, he or she must prepare and serve upon

the applicant an opinion stating why the application was denied. A

decision to grant asylum also requires a written decision. 8 CFR 208.14

and 208.17.

If an Asylum Officer denies an application for asylum or

withholding of deportation, the applicant may renew that application

before an Immigration Judge after the applicant has been served a

Notice to Alien Detained for Hearing by an Immigration Judge (Form I-

122) under 8 CFR 235.6, or after the applicant has been served with an

Order to Show Cause under 8 CFR 242.1. Immigration Judges have

exclusive jurisdiction over these applications once the charging

document has been filed with the Office of the Immigration Judge. 8 CFR

208.2(b). The Immigration Judge shall decide such claims de novo. 8 CFR

208.2(b). If denied, the alien, by filing a Notice of Appeal (Form

EOIR-26), may obtain review of his or her claim by the Board of

Immigration Appeals. The alien may pursue further appeals in the

Federal courts.

An applicant for asylum also is eligible to apply for employment

authorization. 8 CFR 208.7(a) and 274a.12(c)(8). Such applications,

submitted on Forms I-765, often accompany asylum applications. The INS

must adjudicate an employment authorization application within 90 days

of receipt, 8 CFR 274a.13(d), and must grant employment authorization

if the asylum application is not frivolous. ``Frivolous,'' as defined

in 8 CFR 208.7(a), means ``manifestly unfounded or abusive.''

The existing system for adjudicating asylum claims cannot keep pace

with incoming applications and does not permit the expeditious removal

from the United States of those persons who claims fail. While part of

this difficulty is attributable to limited resources, the problem also

stems in large part from the effort to meet procedural requirements

imposed by current regulations. On October 1, 1990, the INS had a

backlog of approximately 90,000 asylum claims. Since that date,

approximately 250,000 cases have been added to that backlog. Asylum

applications are received at a current rate approaching 150,000 per

year. A significant and growing percentage of current receipts are

claims that appear on their face to be nonmeritorious or abusive. As

currently constituted, INS regulations mandate the interview of all

applicants, adjudication of requests for work authorization, written

decisions by an Asylum Officer justifying all denials, de novo review

of denials by an Immigration Judge, at the availability of

administrative and judicial review if the Immigration Judge also denies

the claim. Taken together, these requirements unduly lengthen and

complicate the adjudication process without appreciable benefit to

deserving asylum applicants. Indeed, most asylum applicants wait a year

or more to receive even initial decisions on their cases.

Summary of the Proposed Rule

The proposed rule will streamline the asylum adjudications process

by making several principal reforms.

First, the role and functions of Asylum Officers will change to

allow the Officers to address a greater volume of applications and to

concentrate their efforts on approving meritorious claims. Officers

will no longer deny applications from aliens who are excludable or

deportable. Under this proposed rule, Officers will either grant the

application or refer the application to the Immigration Judge after

serving upon the applicant a charging document (Form I-122 or Order to

Show Cause) to initiate exclusion or deportation proceedings. The

Asylum Officer will no longer prepare and send a Notice of Intent to

Deny in those cases that the Officer does not intend to grant. Instead,

the Asylum Officer will issue an automatic mandatory referral letter

and, with supervisory approval, a charging document. Supervisory Asylum

Officers already have the authority to issue such charging documents

under 8 CFR 235.6(a) and 242.1(a)(21). In addition, Asylum Officers no

longer will be required to conduct personal interviews, but will have

discretion to conduct such an interview in any case they deem

appropriate.

Asylum Officers will continue to grant or deny applications in the

small number of cases involving aliens who have a current legal

immigration status not derived from their asylum application. In this

circumstance no charging document will be issued if the Officer denies

the claim. The applicant instead will receive a denial letter from the

Asylum Officer.

Second, in cases referred to an Immigration Judge, the Asylum

Officer shall refer and forward to the Office of the Immigration Judge

the asylum application originally received by the Asylum Officer. This

application shall form part of the record of proceedings. This reform

is intended to encourage the filing of complete and responsive

applications in the first instance and to discourage applicants from

filing claims before Immigration Judges that differ from the claims

they filed before Asylum Officers.

Third, an asylum applicant will 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 fled. These

reforms are important for several reasons. They will encourage the INS

and the Office of the Immigration Judge to adjudicate claims promptly

within the 150-day period, since, by doing so, they would avoid the

necessity of separately adjudicating the work authorization

applications. These reforms also will authorize the INS to deny

employment authorization to those whose underlying asylum applications

have been denied. These reforms should reduce the incidence of asylum

applications filed primarily to obtain employment authorization.

Applicants with pending asylum claims will wait longer than

required at present to receive employment authorization. The Department

selected 150 days as the period beyond which it would not be

appropriate to deny work authorization to a person whose claim has not

been adjudicated. Ideally, however, few applicants would ever reach the

150-day point. Rather, the Department would aim to complete the process

in less time, serving to decide most cases within 120 days. Those whose

claims are not adjudicated by the Asylum Officer and the Immigration

Judge within the 150-day period will, subject to certain conditions, be

eligible to apply for and to receive work authorization. The INS will

adjudicate these applications for work authorization within 30 days of

receipt, regardless of the merits of the underlying asylum claim. Those

whose claims are denied by the Immigration Judge within the 150-day

period shall not be eligible to apply for work authorization. In

addition, those whose claims are denied by the Immigration Judge within

the 30-day period, but prior to the issuance of employment

authorization, will not receive employment authorization. Applicants

granted asylum will continue to be authorized immediately to be

employed.

The proposed rule also would eliminate the provisions of 8 CFR

274a.12(c)(13), which permit the issuance of employment authorization

to any non-detained alien against whom exclusion or deportation

proceedings have been instituted. The INS believes that the other

paragraphs within 8 CFR 274a.12(c) provide an adequate basis for the

issuance of employment authorization to virtually all deserving persons

in exclusion or deportation proceedings who are not detained.

The proposed rule also would institute a fee for filing asylum

applications. Under 31 U.S.C. 9701, federal agencies may, subject to

policies prescribed by the President, assess user fees for services and

things of value that they provide. The statute authorizing this

practice indicated that it was the sense of the Congress that ``each

service or thing of value provided by an agency'' should be ``self-

sustaining to the extent possible.'' 31 U.S.C. 9701(a). Until now, the

INS has sought to provide asylum status determinations without charge

to the asylum applicant. Asylum applicants have paid a fee only when

filing an application for renewed work authorization. The INS has

avoided charging asylum application fees by adding a surcharge to the

fees for filing applications for immigration benefits other than

asylum. Monies collected through this surcharge have, in part, funded

the asylum program, as permitted by section 286(m) of the Act, 8 U.S.C.

1356(m). The INS has determined, however, that even the funds collected

through the surcharge have failed to cover the costs of administering

the asylum program. For this reason, it has become necessary to propose

a filing fee for persons filing an application for asylum or

withholding of deportation (Form I-589, ``Request for Asylum in the

United States''). Asylum applicants also would pay a fee to file

initial applications for employment authorization (Form I-765,

``Application for Employment Authorization'').

The estimated cost associated with adjudicating each asylum

application, taking into account the salaries and benefits of asylum

officers and clerical staff, supervisory, management and administrative

activities, data processing, and legal services, is $615. As it would

impose a hardship on asylum applicants were they required to pay the

entire cost of the service rendered them, part of this cost is

recovered through the surcharge mentioned above. The INS has calculated

that the portion not currently recovered through the surcharge could be

recovered if the proposed fee for asylum applications were set at $130.

Asylum applicants applying for initial work authorization would pay an

additional fee of $60, the fee currently set forth at 8 CFR 103.7(b).

Both fees would be subject to the waiver available under 8 CFR 103.7(c)

to applicants who cannot pay the prescribed fee.

Beyond these principal reforms, the proposed rule will eliminate

the requirement that asylum adjudicators await the receipt of advisory

opinions from the Department of State. Instead, the State Department

will provide detailed country conditions information accessible by

electronic data base. In addition, both the INS and Immigration Judges

may request specific information from the State Department concerning

country conditions or individual cases and the State Department also

may provide, at this discretion, information available to it concerning

individual cases. However, the proposed rule would eliminate the

requirement that Asylum Officers and Immigration Judges wait for the

receipt of State Department comments before adjudicating authorizations

for asylum.

In addition, the proposed rule would authorize Asylum Officers and

Immigration Judges to deny otherwise approvable claims on the ground

that the applicant can be deported or returned to a country on 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. This authority will be helpful in coordinating United States

asylum policy with that of other nations.

The proposed rule also would curtail the authority of Asylum

Officers to grant or deny withholding of deportation under section

243(h) of the Act, 8 U.S.C. 1253(h). Under current regulations, if an

Asylum Officer denies an alien's application for asylum, he shall also

decide whether the alien is entitled to withholding of deportation. 8

CFR 208.16(a). Under the proposed rule, however, Asylum Officers will

no longer deny asylum in the cases of aliens who are to be placed in

exclusion or deportation proceedings, and thus will have no reason to

reach the issue of withholding of deportation. Accordingly, it is

appropriate to limit jurisdiction over withholding of deportation to

Immigration Judges. The only cases in which Asylum Officers could

adjudicate such claims would be those involving crewmen stowaways, or

aliens temporarily excluded under section 235(c) of the Act, 8 U.S.C.

1225(c).

Finally, the proposed rule would amend 8 CFR 242.17(e) to specify

that information contained in an asylum application may be used as a

basis for an Order to Show Cause against the applicant under 8 CFR

242.1. This change ensures that the INS may use the asylum application

to refer expeditiously to Immigration Judges the cases of otherwise

deportable applicants whose claims are not granted by Asylum Officers.

Several sections amended by this proposed rule were the subject of

a prior proposed rule designed to implement the intent of Congress to

eliminate asylum benefits for aliens convicted of aggravated felonies

and to classify aggravated felonies as ``particularly serious crimes''

under section 243(h) of the Act, 8 U.S.C. 1253(h). See 58 FR 38312-

38314 (July 16, 1993). In order to simplify the rulemaking process, the

substance of the provisions set forth in the prior proposed rule have

been incorporated into the present proposed rule, and the prior

proposed rule is withdrawn. The provisions of the prior proposed rule

have not been adopted verbatim, but have been adapted to reflect the

overall changes made by this proposed rule. However, the substantive

effects of the aggravated felony provisions in this proposed rule are

identical to those set forth in the prior proposed rule.

The comments to the prior proposed rule recommended that conviction

for an aggravated felony not automatically constitute a ``particularly

serious crime,'' and that asylum applicants convicted of an aggravated

felony be given an opportunity to demonstrate that they are not a

danger to the community. The INS believes that this proposal is

contrary to the Congress's intent in enacting section 515 of the

Immigration Act of 1990, 8 U.S.C. 1158(d). The Department invites

comments on these provisions, including comments from those who

responded to the prior proposed rule.

This proposed rule also makes several conforming and technical

amendments. The rule deletes all references to the Asylum Policy and

Review Unit, an entity within the Department of Justice that no longer

exists. The rule also clarifies the responsibilities of the asylum

applicant to provide a competent interpreter at an interview with an

Asylum Officer.

Proposed Amendments

8 CFR 103.7(b)(1) would be amended to provide that a fee of $130.00

be charged for the filing of a Form I-589, Application for Asylum or

Withholding of Deportation.

8 CFR 208.1(a) would be amended to specify that these regulations

will apply to all adjudications of asylum applications, whether by an

Asylum Officer or by an Immigration Judge, on or after the effective

date of the regulations; and to specify that the provisions 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 asylum

applications filed on or after November 29, 1990. 8 CFR 208.1 also

would be amended to make a number of technical amendments.

8 CFR 208.2(a) would be amended to specify that asylum applications

received by an Asylum Officer are either to be adjudicated by the

Officer or referred to an Immigration Judge in accordance with amended

8 CFR 208.14. 8 CFR 208.2(b) would be amended to specify that in cases

where the adjudication of an application has been referred by an Asylum

Officer to an Immigration Judge in accordance with 8 CFR 208.14, the

original application shall be forwarded to the Immigration Judge. This

paragraph also would be amended to specify that Asylum Officers do not

have jurisdiction to grant or deny withholding of deportation, except,

pursuant to 8 CFR 253.1(f), in cases of crewmen, stowaways, and aliens

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

8 CFR 208.3(a) would be amended by eliminating the requirement that

a Form G-325A (Biographical Information) be filed. This reflects the

fact that the Form I-589 is to be revised to include complete

biographical information. Also, the form and any supporting material is

to be filed in triplicate, rather than quadruplicate. 8 CFR 208.3 also

would be amended by adding new paragraphs (c) and (d). Proposed

paragraph (c) states that the instructions on the asylum application

shall inform the applicant that information provided on the application

may be used in the institution of, or as evidence in, exclusion or

deportation proceedings; that mailing to the address provided on the

application shall constitute adequate service of all notices or other

documents, including charging documents; that preparers assisting

applicants in completing their asylum applications must be identified

clearly; that the signatures on the application are made under penalty

of perjury and may form the basis for denial if the applicant later

expresses ignorance of the contents of the application; that failure to

respond to all of the questions may form the basis for denial; and that

knowing placement of false information may subject the applicant or

preparer to civil penalties under section 274C of the Act, 8 U.S.C.

1324c. Proposed paragraph (d) requires that the application be signed

under penalty of perjury by the applicant and by any person other than

an immediate relative who prepared or assisted the applicant in

preparing the application.

8 CFR 208.4(a) would be amended to provide that, except for

applications that are to be filed with the District Director or the

Office of the Immigration Judge under 8 CFR 208.4 (b) and (c),

respectively, applications shall be filed by mail with the Service

Center servicing the Asylum Office with jurisdiction over the place of

the applicant's residence. The amended paragraph also would specify

that addresses of the Service Centers shall be made available through

the local INS Information Unit. This amendment will conform the

regulations to current INS practice and will not have an adverse impact

on any applicant for asylum or withholding of deportation. Incorrectly

addressed applications shall continue to be forwarded to the

appropriate Service Center.

8 CFR 208.4(a) also would be amended to provide that in the case of

an applicant convicted of an aggravated felony, the Asylum Office shall

not forward a copy of the application to the Department of State. This

amendment is adopted from the prior proposed rule on aliens convicted

of aggravated felonies. See 58 FR 38312 (July 16, 1993).

8 CFR 208.4 also would be amended by adding a new paragraph (d)

requiring asylum applicants to include with their Form I-589 the fee

set forth in 8 CFR 103.7(b)(1).

8 CFR 208.7 would be amended to state that, unless he or she has

been convicted of an aggravated felony, an applicant for asylum shall

be eligible to submit an application for employment authorization (I-

765) under 8 CFR 274a.12(c)(8). Such an application may be submitted no

earlier than 150 days after the date on which the applicant's

application for asylum was filed in accordance with amended 8 CFR

208.4. An applicant whose I-589 application has been denied by an

Immigration Judge during this 150-day period shall not be eligible to

apply for employment authorization as an asylum applicant even if he or

she is appealing the denial. Furthermore, an applicant who is in legal

immigration status and whose I-589 application is denied by an Asylum

Officer within the 150-day period shall not be eligible for work

authorization under 8 CFR 274a.12(c)(8). An initial application for

employment authorization shall be adjudicated by the INS, after the

expiration of the 150-day period, within 30 days of receipt. An

applicant whose I-589 application is denied by an Immigration Judge or

by an Asylum Officer after the filing of the I-765, but prior to

adjudication of the I-765 within the 30-day period, shall be denied

employment authorization under 8 CFR 274a.12(c)(8). For purposes of

computing the 150-day and 30-day periods, these periods shall be

extended by the equivalent of any delay requested or caused by the

applicant. The periods also shall be extended by the equivalent of the

time between the issuance of a request for evidence under 8 CFR

103.2(b)(8) and the receipt of the applicant's response to such

request.

In addition, 8 CFR 208.7 would establish that an applicant who has

been convicted of an aggravated felony shall not be granted employment

authorization. If 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

automatically, as of the date of the denial. This amendment is adopted

from the prior proposed rule on aliens convicted of aggravated

felonies. See 58 FR 38312, 38313 (July 16, 1993).

8 CFR 208.7(d) would be amended to require that, in order for

employment authorization to be renewed before its expiration,

applications for renewal must be received by the INS at least ninety

days before the employment authorization expires.

8 CFR 208.9 would be amended in several respects. These amendments

include provisions adopted from the prior proposed rule on aliens

convicted of aggravated felonies. See 58 FR 38312-38314 (July 16,

1993).

First, paragraph (a) would be amended to provide that an Asylum

Officer has discretion to conduct an interview in those cases such

Officer deems appropriate.

Second, 8 CFR 208.9 (b) and (c) would be amended to require the

asylum applicant to provide full identifying information at the time of

any interview and to authorize the Asylum Officer to further register

or verify that identity, including through the use of electronic means.

The Asylum Officer also would be permitted to verify the identity of

the interpreter.

Third, 8 CFR 208.9(d) would be amended to require that, at the

conclusion of the interview, the applicant be notified that he or she

must appear in person to acknowledge receipt of the written decision of

the Asylum Officer.

Fourth, a new paragraph (g) would be added to 8 CFR 208.9,

specifying that an applicant who is unable to proceed with his or her

interview in English must supply a competent interpreter, at no expense

to the INS. The proposed paragraph (g) would prohibit the applicant's

attorney or a witness testifying on the applicant's behalf from serving

as the interpreter.

8 CFR 208.11 would be amended to change the role of the Department

of State from one of routinely providing comments on individual cases

to one of providing primarily generic, non-case-specific, current

country conditions information. The rule would eliminate the mandatory

period during which Asylum Officers and Immigration Judges must await

receipt of State Department comments in individual cases, but would

permit the State Department to comment on individual cases at its

discretion.

8 CFR 208.12(a) would be amended to eliminate the provisions

requiring an Asylum Officer to provide the applicant with an

opportunity to inspect, explain, or rebut the material(s) relied upon

to find that the applicant's claim has not been approved. The Asylum

Officer will continue to rely upon materials provided by the Department

of State, the District Director, or other credible sources in making a

decision to grant asylum, to refer the case to an Immigration Judge, or

to deny asylum for applicants having another lawful immigration status.

The applicant will have the opportunity to review such materials to the

extent they are relied upon in the course of proceedings before an

Immigration Judge.

8 CFR 208.14 would be amended by inserting a new paragraph (b) to

limit the authority of an Asylum Officer to deny applications for

asylum or withholding of deportation to those cases involving aliens

who do not appear to be excludable or deportable under sections 212 or

242 of the Act (8 U.S.C. 1182 or 1252), respectively. Officers would

continue to have the authority to grant applications from any

applicant, provided, as a present, that the applicant is not in

exclusion or deportation proceedings. If the Officer does not grant the

application, and the applicant is subject to exclusion or deportation

proceedings, the Officer shall refer the application to an Immigration

Judge for adjudication in connection with those proceedings. In

addition, a new paragraph (d)(4) would specify that conviction of an

aggravated felony is a mandatory ground for denial. This amendment is

adopted from the prior proposed rule or aliens convicted of aggravated

felonies. See 58 FR 38312, 38313 (July 16, 1993).

8 CFR 208.14 also would be amended by adding a new paragraph (e) to

set forth a ground for discretionary denial. Asylum applications could

be denied in the discretion of the Attorney General when the applicant

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

would not face persecution or harm and would have access to a full and

fair procedure for determining his or her refugee status in accordance

with a bilateral or multilateral arrangement with the United States

governing such matters. Nothing in this provision would limit the

discretion of the Attorney General to permit consideration of the

application in instances where there is good reason for the applicant

to remain in the United States.

8 CFR 208.16 would be amended to restrict the adjudication by

Asylum Officers of claims for withholding of deportation to cases

involving crewmen, stowaways, and aliens temporarily excluded under

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

jurisdiction of the Asylum Officer pursuant to 8 CFR 253.1(f). This

section also would be amended to specify that an alien convicted of an

aggravated felony is ineligible to receive withholding of deportation.

This amendment is adopted from the prior proposed rule on aliens

convicted of aggravated felonies. See 58 FR 38312, 38313 (July 16,

1993).

8 CFR 208.17 would be amended to provide for service of a referral

under 8 CFR 208.14(b) to the applicant, the District Director, and the

Office of Refugees, Asylum, and Parole.

8 CFR 208.18(b) would be amended to provide that in a case referred

to an Immigration Judge under amended 8 CFR 208.14(b), the Asylum

Officer, pursuant to the authority set forth in 8 CFR 235.6(a) and

242.1(a), shall issue either an Order to Show Cause to place the

applicant in deportation proceedings or a Notice to Applicant for

Admission Detained for Hearing Before Immigration Judge to place the

applicant in exclusion proceedings.

8 CFR 208.20 would be amended to clarify that a person eligible for

work authorization as a result of being granted asylum shall receive

documentation establishing such authorization expeditiously, upon

application to the Service.

8 CFR 208.21 would be amended to specify that an asylee's spouse or

child accompanying or following to join the asylee may not be granted

asylum if the spouse or child has been convicted of an aggravated

felony. This amendment is adopted from the prior proposed rule on

aliens convicted of aggravated felonies. See 58 FR 38312, 38314 (July

16, 1993).

8 CFR 208.24 would be amended to clarify that the procedure stated

therein for revocation of a grant of asylum shall be followed when

asylum was granted by a District Director. This section also would be

amended to eliminate paragraph (f), regarding the authority of the

Deputy Attorney General, assisted by the Asylum Policy and Review Unit,

to review decisions to revoke asylum or withholding or withholding of

deportation. This change reflects the fact that the Asylum Policy and

Review Unit no longer exists.

8 CFR 236.3 and 8 CFR 242.17 would be amended to eliminate the

requirement that exclusion and deportation hearings be deferred until

the receipt of comments from the Department of State.

8 CFR 242.17(e) would be amended to provide that the INS may use

information contained in an asylum application submitted to an Asylum

Officer in accordance with 8 CFR 208.2 to form the basis for issuance

of an Order to Show Cause under 8 CFR 242.1

8 CFR 274a.12(c)(8) would be amended to conform the criteria for

eligibility for employment authorization to those set forth in amended

8 CFR 208.7(a). The text of 8 CFR 274a.12(c)(13) would be removed and

the paragraph reserved.

8 CFR 274a.13(a) would be amended to clarify that applicants for

employment authorization under 8 CFR 274a.12(a) are authorized to be

employed in the United States by virtue of their immigration status,

and that approval of applications for employment authorization filed

under 8 CFR 274a.12(c), except for those filed under 8 CFR

274a.12(c)(8), is within the discretion of the District Director.

Applications filed under 8 CFR 274a.12(c) will be adjudicated at the

Service Center or at such other INS office as the Commissioner shall

designate. This paragraph also would be amended to require that an

application for employment authorization or for renewal of employment

authorization based on a pending asylum application be filed with a

fee, or with an application for waiver of such fee, and that such

applications be filed either with the Service Center or with such other

INS office as the Commissioner may designate.

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 has 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.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Freedom of information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

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.

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

Regulations is proposed to be amended as follows:

PART 103-POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. Section 103.7, paragraph (b)(1) is amended by adding in proper

numerical sequence Form I-589 to the forms to read as follows:

Sec. 103.7 Fees.

* * * * *

(b) (1) * * *

(1) * * *

* * * * *

Form I-589. For filing application for asylum or withholding of

deportation--$130 per application.

* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

3. The authority citation for part 208 is revised to read as

follows:

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

9701; 8 CFR part 2.

4. Section 208.1 is amended by:

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

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

the phrase ``Other 1, 1990'' and adding in its place ``(Insert date

final rule is published in the Federal Register)'';

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

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

e. Removing in paragraph (c) the phase ``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 adjudications of applications for

asylum or withholding of deportation, whether by an Asylum Officer or

an Immigration Judge, that occur on or after (Insert date final rule is

published in the Federal Register and all adjudications or referrals by

an Asylum Officer in accordance with Sec. 208.14. * * * The provisions

of this part relating to a person convicted of an aggravated felony, a

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. * * *

* * * * *

5. Section 208.2 is amended by:

a. Revising the second sentence in paragraph (a); and

b. Revising the second and third sentences in paragraph (b), to

read as follows:

Sec. 208.2 Jurisdiction.

(a) * * * All such applications shall be either adjudicated or

referred by Asylum Officers under this part in accordance with

Sec. 208.14, provided that with the exception of cases involving

crewman, 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 8 CFR 253.1(f), 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).

(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 Office of Refugees, Asylum, and Parole.

6. Section 208.3 is amended by:

a. Removing from the first sentence in paragraph (a) the word

``quadruplicate'' and adding in its place ``triplicate'';

b. Revising the third and fourth sentences in paragraph (a); and

c. Adding new paragraphs (c) and (d), to read as follows:

Sec. 208.3 Form of application.

(a) * * * An application shall be accompanied by one completed Form

FD-258 (Fingerprint Card) for every individual included on the

application who is fourteen years of age or older. Additional

supporting material may also accompany the application and, if so, must

be provided in triplicate. Forms I-589 and FD-258 shall be available

from the INS and the Offices of Immigration Judges. * * *

* * * * *

(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 on the application shall

constitute adequate service of all notices or other documents,

including an Order to Show Cause (Form I-221) or a Notice to Applicant

for Admission Detained for Hearing Before Immigration Judge (Form I-

122);

(4) The signatures on the application of the applicant and anyone

who assists the applicant are made subject to penalty of perjury and,

if the applicant later claims ignorance of the contents of the

application, may provide the basis for denial of the claim;

(5) 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; 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). An

application for asylum or withholding of deportation 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 an application for fee waiver, in incomplete.

(d) The applicant must sign the application under penalty of

perjury. If a person other than an immediate relative of the applicant

has prepared or assisted the applicant in preparing the application,

that person also must sign the application under penalty of prejury and

provide his or her full mailing address.

7. Section 208.4 is amended by revising paragraph (a) and adding a

new paragraph (d) 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 from 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.

* * * * *

(d) The applicant shall include the appropriate fee as prescribed

in 8 CFR 103.7(b)(1), or application for waiver of such fee as provided

in 8 CFR 103.7(c)(1), when submitting the application.

8. Section 208.5 is amended by removing from paragraph (b) ``235''

and adding in its place ``236''.

9. Section 208.7 is amended by:

a. Revising the section heading;

b. Revising paragraph (a);

c. Revising the introductory text of paragraph (b);

d. Adding a new paragraph (b)(3); and

e. In paragraph (d), removing 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 for employment

authorization shall be submitted, with fee or application for waiver of

such fee, no earlier than 150 days after the date on which the

application for asylum has been filed in accordance with Sec. 208.4 of

this part. If an application for waiver of the fee is denied, the INS

shall not issue a document evidencing employment authorization until

the fee is paid. An applicant whose application for asylum has been

denied by an Immigration Judge or by an Asylum Officer 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 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, the limitations on 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 be construed as running only after the alien has

filed a complete asylum application in accordance with Sec. 208.3. Such

time limits shall be extended by the equivalent of any delay requested

or caused by the applicant. Such time limits also shall be extended by

the equivalent of the time between issuance of a request for evidence

under 8 CFR 103.2(b)(8) and the receipt of the applicant's response to

such request.

(4) An applicant who inexcusably fails to appear for a scheduled

interview before an Asylum Officer or hearing before an Immigration

Judge shall not be granted employment authorization.

(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.

* * * * *

10. Section 208.9 is amended by:

a. Revising paragraph (a);

b. Revising paragraph (b);

c. Revising paragraph (c);

d. Adding a new sentence at the end of paragraph (d);

e. Revising paragraph (e); and

f. Adding a new paragraph (g), to read as follows:

Sec. 208.9 Interview and procedure.

(a) Interviews on asylum applications are discretionary. For each

application for asylum or withholding of deportation within the

jurisdiction of the Office of Refugees, Asylum, and Parole, an

interview may be conducted by an Asylum Officer, either at the time of

the application or at a later date to be determined by the Officer.

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 and

may submit affidavits of witnesses.

(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 also

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.

(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 if an

interview is conducted. 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 of

record nor a witness testifying on the applicant's behalf may serve as

the applicant's interpreter. Unexcused failure to meet this requirement

may be considered an unexcused failure to appear for the interview for

purposes of Sec. 208.10.

11. Section 208.11 is amended by:

a. Revising the section heading;

b. Removing paragraph (b);

c. Redesignating paragraphs (a) and (c) as paragraphs (b) and (d),

respectively;

d. Adding a new paragraph (a);

e. Revising newly redesignated paragraph (b); and

f. Adding a new paragraph (c), 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 own experiences;

(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 to deciding whether

to grant or to deny the application.

(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

and the parties shall be provided an opportunity to review and respond

to such comments prior to the issuance of a decision.

* * * * *

Sec. 208.12 [Amended]

12. In Sec. 208.12, paragraph (a) is amended by removing from the

first sentence the term, ``the Asylum Policy and Review Unit,'' and by

removing the second sentence in its entirety.

Sec. 208.13 [Amended]

13. In Sec. 208.13, paragraph (b)(1)(ii) is amended by removing

from the last sentence the citation ``Sec. 208.14(c)'' and adding in it

place ``Sec. 208.14(d)''.

14. Section 208.14 is amended by:

a. Revising the section heading;

b. Removing in paragraph (a) the words ``or Asylum Officer'';

c. Removing in paragraph (a) the phrase ``paragraph (c)'' and

adding in its place the phrase ``paragraph (d)'';

e. Redesignating paragraph (b) and (c) as paragraphs (c) and (d)

respectively;

f. Adding a new paragraph (b);

g. Removing in redesignated paragraph (d)(2) the word ``or'' at the

end of the paragraph;

h. Removing in redesignated paragraph (d)(3) the ``.'' at the end

of the paragraph and adding in its place ``; or'';

i. Adding a new paragraph (d)(4); and

j. Adding a new paragraph (e), to read as follows:

Sec. 208.14 Approval, denial, or referral of application.

* * * * *

(b) An Asylum Officer may grant or deny 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, except that an Asylum

Officer shall not deny asylum in the case of an alien 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), other than a

crewman, stowaway, or alien temporarily excluded under section 235(c)

of the Act (8 U.S.C. 1225(c)). In such cases, 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, respectively. The

Asylum Officer shall notify the applicant of a referral under this

section. Adjudication of an asylum application filed by a crewman,

stowaway, or alien temporarily excluded under section 235(c) of the Act

(8 U.S.C. 1225(c)) shall be conducted under the procedures set forth in

Sec. 253.1(f) 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 who is

otherwise eligible for asylum may be denied in the discretion of the

Attorney General if the alien can and will be deported or returned to a

country 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.

15. Section 208.16 is amended by revising paragraph (a) and

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 8 CFR 253.1(f), 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 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.

* * * * *

16. 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,

the Assistant Commissioner, Refugees, Asylum, and Parole, and 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(c)(4) or Sec. 208.16(c)(2)(ii). Pursuant to Sec. 208.9(d),

an applicant may be required to appear in person to receive and to

acknowledge receipt of the decision.

17. Section 208.18 is amended by:

a. Removing from the second sentence in paragraph (a) the phrase

``, assisted by the Asylum Policy and Review Unit,'';

b. Removing from the third sentence in paragraph (a) the phrase ``,

or to the Asylum Policy and Review Unit,''; and

c. Revising paragraph (b), to read as follows:

Sec. 208.18 Review of decisions and appeal.

* * * * *

(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 Sec. 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).

* * * * *

18. Section 208.20 is revised to read as follows:

Sec. 208.20 Approval and employment authorization.

When an alien's application for asylum is granted, he or she is

granted asylum status for an indefinite period. All approved asylees

and their eligible derivative family members are authorized to be

employed in the United States pursuant to Sec. 274a.12(a)(5) of this

chapter and must, if intending to be employed, 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.

19. Section 208.21 is amended by:

a. Revising the introductory text of paragraph (a);

b. Removing at the end of paragraph (a)(2) the word ``or'';

c. Removing at the end of paragraph (a)(3) the ``.'' and adding in

its place ``; or'';

d. Adding a new paragraph (a)(4), 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, or child, as defined in section 101(b)(1) (A), (B), (C), (D), (E)

or (F) of the Act, also may be granted asylum if accompanying or

following to join the principal alien who was granted asylum, unless it

is determined that: * * *

* * * * *

(4) 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).

* * * * *

20. Section 208.24 is amended by:

a. Revising the heading and introductory text of paragraph (a);

b. Removing in paragraph (a)(3), the citation ``208.14(c)'' and

adding in its place the citation ``208.14(d)'';

c. Removing paragraph (f); and

d. 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 a hearing before 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: * * *

* * * * *

PART 236--EXCLUSION OF ALIENS

21. The authority citation for part 236 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.

22. Section 236.3 is amended by:

a. Revising the introductory text of 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)''; and

c. Revising the second sentence in paragraph (b), to read as

follows:

Sec. 236.3 Applications for asylum or withholding of deportation.

(a) If an 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 exclusion from the United States pursuant to part 237

of this chapter, 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: * * *

(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

23. 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.

24. Section 242.17 is amended by:

a. Revising the introductory text of paragraph (c)(2);

b. 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)'';

c. Revising the second sentence in paragraph (c)(3); and

d. 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 8 CFR 208.14(b), 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 8

CFR 208.2 as the basis for issuance of an Order to Show Cause under 8

CFR 242.1. * * *

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); and

c. 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

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. Section 274a.13 is amended by revising paragraph (a) and the

first sentence of 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), 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),

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) 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

applicant also must submit a copy of the underlying application for

asylum or withholding of deportation, together with evidence that the

application has been field in accordance with part 208 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

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.

* * * * *

(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; provided, however, that in cases where the

alien is temporarily barred from seeking employment authorization

because of a pending asylum application or exclusion or deportation

proceedings, the district director shall adjudicate the employment

authorization within 30 days of receipt. * * *

Dated: March 24, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-7500 Filed 3-29-94; 8:45 am]

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