Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures

SUMMARY: This rule proposes to amend the regulations of the Immigration

and Naturalization Service (Service) and the Executive Office for

Immigration Review (EOIR) governing the conduct of both expedited and

regular removal proceedings, and handling of asylum claims. The

regulation addresses other activities involving the apprehension,

detention, hearing of claims and ultimately the removal of inadmissible

and deportable aliens. In addition, this rule incorporates a number of

changes which are a part of the Administration's reinvention

initiative, mandated in a directive signed by the President on March 4,

1995, requiring all heads of departments and agencies to conduct a

page-by-page review of all regulations and to eliminate or revise those

that are outdated or otherwise in need of reform. This rule is

necessary to implement the provisions of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA).

DATES: Written comments must be submitted on or before February 3,

1997.

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

Director, Policy Directives and Instructions Branch, Immigration and

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

20536. To ensure proper handling, please refer INS number 1788-96 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

For matters relating to the Executive Office for Immigration Review--

Peggy Philbin, General Counsel, Executive Office for Immigration

Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041,

telephone number (703) 305-0470; for asylum issues--Michael Shaul,

Field Manual Project Office, Immigration and Naturalization Service,

425 I Street NW., ULLB-4th Floor, Washington, DC 20536, telephone

number (202) 616-7439; for inspections issues--Linda Loveless, Office

of Inspections, Immigration and Naturalization Service, 425 I Street

NW., Room 4064, Washington, DC 20536, telephone number (202) 616-7489;

for detention and removal issues--Len Loveless, Office of Detention and

Deportation, Immigration and Naturalization Service, 425 I Street NW.,

Room 3008, Washington, DC 20536, telephone number (202) 616-7799.

SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Public Law 104-208, enacted on September

30, 1996, amends the Immigration and Nationality Act (Act) in several

ways. This rule proposes to implement the IIRIRA by creating a new,

expedited removal process for aliens attempting to enter the United

States through fraud or misrepresentation or without proper documents

while providing a mechanism for the determination and review of

applicants who demonstrate a credible fear of persecution if returned

to their own country. It consolidates exclusion and deportation

proceedings into one unified removal proceeding. It revises the asylum

process.

It provides that persons who are present in the United States

without inspection are considered applicants for admission and

indicates that such persons will not be subject to expedited removal

unless and until the INS Commissioner invokes the provisions in the

statute and this rule allowing her to expand the use of the expedited

removal process to include such individuals. Also, various sections of

IIRIRA have revised and expanded the grounds of inadmissibility

(formerly exclusion grounds).

The effective date of the changes implementing the expedited

removal process is April 1, 1997. The Antiterrorism and Effective Death

Penalty Act of 1996, Public Law 104-132, was enacted April 24, 1996.

Many of its major provisions were superseded by IIRIRA before they

became effective. Several of the remaining provisions will be

implemented with this rulemaking.

Taken together, the provisions of IIRIRA have made pervasive

changes in the laws governing admission, inspection, removal, and

detention of aliens--eliminating or revising old standards, creating

new ones, and reorganizing and revising numerous provisions of existing

law. In some respects, even after the effective date of the new

provisions, existing legal standards will still be applied with respect

to legal matters initiated prior to that date. The length of this

rulemaking document alone--only one of the regulatory actions necessary

to implement IIRIRA-- demonstrates the breadth and complexity of these

changes.

Congress directed that the provisions of Title III-A of IIRIRA take

effect on April 1, 1997, and also directed that the Attorney General

publish implementing regulations by March 1, 1997. A five-month period

is an extremely short time frame for completing the regulatory process

for a rule of this magnitude, given the time needed to draft the rule,

coordinate with interested agencies, complete the regulatory review

process by OMB pursuant to Executive Order 12866, and allow time for

public comment. In particular, it means that there is not adequate time

for the usual rulemaking model of 60 days public notice.

Because of these exigencies, the Department has limited the public

comment period on this proposed rule to 30 days. However, in order to

provide a fuller opportunity for public input on the numerous issues

addressed in this rulemaking, the Department will allow a 120-day

comment period on the Interim Rule when that is published by the

beginning of March, prior to the development of a Final Rule.

As of the date this document was submitted for publication, Public

Law 104-208 had not been printed. The conference report accompanying

the House version of the bill, however, contains the provisions of

IIRIRA. See H.R. Conf. Rep. No. 863, 104th Cong. 2d Sess., at 561. The

Act should be printed in its entirety in the next few weeks.

Applicants for Admission and Arriving Aliens

Section 302 of IIRIRA amends section 235(a) of the Act to describe

as applicants for admission both aliens who are arriving in the United

States (whether or not they arrive at a designated port-of-entry) and

aliens present in the United States who have not been admitted. This

section also includes aliens brought to the United States after having

been interdicted in international or United States waters. Prior to the

enactment of the IIRIRA, aliens apprehended after entering the

[[Page 445]]

United States without inspection were subject to deportation

proceedings under section 242 of the Act. By considering such aliens to

be applicants for admission, this amendment significantly changes the

manner in which aliens who have entered the United States without

inspection are considered under the Act.

In some instances, IIRIRA distinguishes between the broader term

``applicants for admission'' and a narrower group, ``arriving aliens.''

For clarity, ``arriving alien'' has now been specifically defined in 8

CFR part 1. The proposed definition of ``arriving alien'' in section

1.1(q) includes aliens arriving at a port-of-entry, aliens interdicted

at sea, and aliens previously paroled upon arrival. The term ``arriving

alien'' could also include other classes of aliens, e.g., those

apprehended crossing a land border between ports-of-entry. The

Department would value commentary on the proper scope of the regulatory

definition.

Parole of Aliens

The proposed rule amends Sec. 212.5 to permit chief patrol agents

to authorize parole from Service custody of aliens who have not been

admitted to the United States. The regulations previously allowed the

district director to exercise this authority for emergent reasons or

when strictly in the public interest. Because many of the aliens

apprehended and processed under the jurisdiction of a chief patrol

agent will now be considered applicants for admission, this change is

necessary to allow discretionary release of those aliens in the

particular circumstances enumerated in Sec. 212.5.

Custody of Aliens Applying at Land Border Ports-of-entry

The proposed regulation implements a new provision added to section

235(b)(2) of the Act to state that an applicant for admission arriving

at a land border port-of-entry and subject to a removal hearing under

section 240 of the Act may be required to await the hearing in Canada

or Mexico. This simply adds to statute and regulation a long-standing

practice of the Service. If the alien fails to appear for the hearing,

the immigration judge may order the alien removed in absentia.

Withdrawal of Application for Admission

Section 302(a) of IIRIRA incorporates into section 235(a)(4) of the

Act the longstanding practice used by the Service to permit applicants

for admission to voluntarily withdraw their applications for admission

to the United States, in lieu of removal proceedings, and to depart

immediately. Permitting an alien to withdraw his or her application for

admission allows the Service to better manage its resources by removing

inadmissible aliens quickly at little or no expense to the Government,

and may be considered instead of expedited or regular removal when the

circumstances of the inadmissibility may not warrant a formal removal.

The option to permit withdrawal is solely at the discretion of the

Government, and is not a right of the alien. An immigration judge may

allow only arriving aliens to withdraw an application for admission.

Such a grant should ordinarily require the Service's concurrence once

the issue of inadmissibility or deportability has been resolved. During

the pendency of an appeal from an order of removal, permission to

withdraw must be obtained from the immigration judge or the Board of

Immigration Appeals (Board).

Expedited Removal of Certain Applicants for Admission

Pursuant to section 302(a) of IIRIRA, aliens who attempt to enter

the United States by fraud or misrepresentation or who arrive without

valid entry documents may be removed under an expedited process without

further hearing or review. An exception is provided for Cuban nationals

arriving by aircraft at a port-of-entry. Aliens who are inadmissible on

other grounds will be referred for proceedings before an immigration

judge under the new removal provisions of section 240 of the Act.

Although not required by statute, the proposed regulation provides for

review and approval of the expedited removal order by a supervisory

immigration officer prior to removal of the alien. The expedited

removal order bars reentry for 5 years following the removal, or 20

years in the case of a second or subsequent removal, unless the alien

obtains advance permission to reenter the Untied States.

The Department requests public comment regarding the appropriate

use of the authority conferred by the statute upon the Attorney General

to expand the class of aliens subject to expedited removal. Section

235(b)(1)(A)(iii) of the Act permits the Attorney General, in her sole

and unreviewable discretion, to apply expedited removal to aliens not

admitted or paroled (and not described in section 235(b)(1)(H)) who

cannot establish continuous physical presence in the United States for

the previous two years.

Under the proposed rule, expedited removal will generally apply

only to ``arriving aliens,'' as defined in section 1.1(q), i.e., aliens

arriving at a port-of-entry, aliens interdicted at sea, and aliens

previously paroled upon arrival. The Commissioner may, however, elect

to apply the expedited removal procedures to additional classes of

aliens within the limits set by the statute, if, in the Commissioner's

discretion, such action is operationally warranted. The Commissioner's

designation may be localized, in response to specific needs within a

particular region, or nationwide, as appropriate. The designation would

become effective upon publication in the Federal Register, except where

circumstances require immediate implementation. The Department would

value commentary on two alternative approaches as well: (1) application

of expedited removal only to ``arriving aliens''; and (2) application

of expedited removal to all aliens not admitted or paroled (and not

described in section 235(b)(1)(F) who cannot demonstrate continuous

physical presence for the previous two years.

Finally, commentary on the proper scope of the term ``arriving

alien'' would be helpful to the Department in implementing section

235(b)(1). The proposed regulatory definition in section 1.1(q)

includes aliens arriving at a port-of-entry, aliens interdicted at sea,

and aliens previously paroled upon arrival. The term ``arriving alien''

could also include other classes of aliens, e.g., those apprehended

crossing a land border between ports-of-entry.

Review of Claim to Lawful Permanent Resident, Refugee, or Asylee Status

in Expedited Removal

An expedited removal order entered against an alien by an

immigration officer at the time of arrival or by an asylum officer

following a determination that the alien does not have a credible fear

of persecution is not subject to administrative appeal, but may be

reviewed by an immigration judge upon request of the alien. An

exception is provided in section 235(b)(1)(C) of the act for an alien

who claims under oath or under penalty or perjury to be a lawful

permanent resident, to have been admitted as a refugee under section

207 of the Act, or to have been granted asylum under section 208 of the

Act.

Before entering an expedited removal order against these aliens,

the Service will attempt to verify the alien's claim to lawful

permanent resident, refugee, or asylee status. If a claim to lawful

permanent resident status is verified, the examining officer will

determine whether the alien is considered an applicant for admission

within the

[[Page 446]]

meaning of section 101(a)(13) of the Act. Section 301(a) of IIRIRA

amended section 101(a)(13) of the Act to provide that an alien lawfully

admitted for permanent residence is not seeking admission unless the

alien has abandoned or relinquished that status, has been absent for a

continuous period in excess of 180 days, has engaged in illegal

activity after having departed the United States, has departed while

under legal process seeking removal, has committed certain criminal

offenses, or is attempting to enter at a time or place other than as

designated or has not been inspected and admitted to the United States.

If the verified lawful permanent resident is determined to be an

applicant for admission, the officer may consider appropriate

discretionary waivers, if applicable, such as a waiver of documents

under section 211(b) or other administrative options.

Current regulations do not provide for a waiver of documents or

similar options for refugees and asylees who seek to reenter the United

States without a refugee travel document. The regulations at

Sec. 223.2(b)(2) require that an application for a refugee travel

document be filed before a refugee or asylee departs from the United

States. The regulations also require at Sec. 223.1(b) that a refugee or

asylee must have a refugee travel document to return to the United

States after temporary travel abroad unless he or she is in possession

of a valid advance parole document. The combination of these two

provisions has resulted in a few refugees and asylees (who had no

intention of abandoning their status in the United States at the time

of their departure) not being able to be readmitted in such status.

With the advent of the expedited removal provisions, including the

procedure for a review by an immigration judge of a claim to refugee or

asylee status, the need for a formal process for dealing with such

individuals has become more critical. The Service proposes to address

the problem by giving district directors the discretionary authority to

accept an application for a refugee travel document from an alien who

is outside the United States, provided that alien: (1) held bonafide

refugee or asylee status in the United States at the time of his or her

departure from the United States, (2) did not intend to abandon such

refugee or asylee status, (3) did nothing while outside the United

States which would be inconsistent with refugee or asylum status, (4)

has been outside the United States for less than one year (the maximum

period of time for which the refugee travel document can be issued),

and (5) files the requisite Form I-131, Application for a Travel

Document, with the appropriate fee. Upon the filing and approval of

such application, the alien may be readmitted to the United States as

if he or she were in possession of a valid refugee travel document,

provided the alien is otherwise admissible.

If the immigration officer determines that an alien verified to

have once held the status of a lawful permanent resident, refugee, or

asylee does not merit a waiver, the officer will not issue an expedited

removal order; rather, the officer may place the alien in removal

proceedings under section 240 of the Act, Section 235(b)(1)(C) of the

Act does not specify what should occur if an alien actually establishes

to the satisfaction of an inspecting officer or an immigration judge

that he or she is a lawful permanent resident, refugee, or asylee.

However, section 242(e)(4) of the amended Act provides that if an alien

appealing an expedited removal order to Federal district court

establishes by a preponderance of the evidence that he or she is a

lawful permanent resident, has been admitted as a refugee, or has been

granted asylum, then the district court may order that the alien be

provided a hearing under section 240 of the Act. In light of these

judicial review provisions that would result in such aliens receiving a

regular removal proceeding under section 240 of the Act, the Department

considers a referral into section 240 removal proceedings upon

verification of such status by an immigration officer or demonstration

of such status to an immigration judge to be the most practical and

efficient implementation of these provisions.

In cases where the alien's claim to lawful permanent resident,

refugee, or asylee status cannot be verified, the immigration officer

or the asylum officer will order the alien removal under section

235(b)(1)(A)(i) of the Act or for a credible fear determination under

section 235(b)(1)(B)(iii), and then refer the alien to an immigration

judge for review of the order. If the judge determines that the alien

is not a lawful permanent resident, has not been admitted as a refugee,

or has not been granted asylum under section 208 of the Act, the order

issued by the examining immigration officer or asylum officer will be

effected and the alien will be removed from the United States under

that order. No further review is available. If the judge determines

that the alien was once admitted and/or currently is a lawful permanent

resident, refugee, or asylee, the order will be canceled and

proceedings under section 235(b)(1) of the Act will be terminated. The

Service may then admit the alien or pursue any other grounds of

inadmissibility or deportability under section 212 or 237 of the Act in

a removal proceeding pursuant to section 240 of the Act, if

appropriate.

Revision of Asylum Procedures

The regulation proposes to amend 8 CFR part 208 to create new

procedures for the consideration of asylum applications as mandated by

section 604 of IIRIRA, to make certain other changes which are not

mandated by IIRIRA, but that will significantly improve the asylum

process, and to streamline the existing regulations in accordance with

the principles discussed elsewhere in the supplementary information.

Of special significance are the provisions in the regulation

providing the immigration judges with exclusive jurisdiction over

certain categories of asylum applications, including those filed by

alien crewmen, stowaways who establish a credible fear of persecution,

aliens covered by the Visa Waiver Pilot Program, aliens subject to

removal under section 235(c) of the Act, and aliens who have applied

for or received an ``S'' visa. Under the current regulations, some of

these classes of aliens (stowaways, crewmen, and aliens removable under

section 235(c) of the Act) receive only an interview with an asylum

officer which is reviewed directly by the Board. However, some problems

have arisen with these procedures, most significantly, the difficulty

of generating a reliable and complete record and the absence of a

government-provided interpreter in asylum officer interviews. The

Department believes that giving the immigration judges exclusive

jurisdiction over such determinations will certify these problems while

still maintaining the high quality and consistency of the interview and

decision-making process which the public has come to expect.

The proposed rule's treatment of section 208(a)(2) of the Act,

which establishes a number of new grounds barring an alien from

applying for asylum, is equally important. Regarding section

208(a)(2)(C) of the Act, which bars an alien from applying for asylum

if the alien had a previous asylum application denied, the rule makes

clear that this provision applies only to asylum applications that have

been denied by an immigration judge or the Board. This ensures that

aliens who received a denial of their application from an asylum

officer because they applied for asylum while in valid status or under

procedures in place prior to January 1995 receive consideration of

[[Page 447]]

their application by an immigration judge. The rule also interprets the

terms ``changed circumstances'' and ``extraordinary circumstances'' in

section 208(a)(2)(D) of the Act as those terms apply to the 1-year bar

in section 208(a)(2)(B) of the Act. The regulation provides minimal

guidance on the meaning of the term ``changed circumstances.''

Nevertheless, because of the novelty of the ``extraordinary

circumstances'' exception to the 1-year bar, the rule offers a

regulatory interpretation of this term. While the Department considered

having the regulation identify specific examples of extraordinary

circumstances that would justify a waiver of the one-year filing

requirement, the proposed rule opts in favor of a provision that

generally defines the term as events or factors beyond the alien's

control that caused the failure to meet the one-year deadline. The

regulation also provides that the alien file the application as soon as

practicable under those circumstances. Thus, an event or factor of

relatively brief duration would be insufficient to excuse the filing of

an application long after the deadline. In our view, such a general

definition provides guidance to decision makers while offering more

flexibility than a definition by example would. Nevertheless, we can

imagine several examples that would likely satisfy this definition: the

applicant suffered a physical or mental disability that prevented a

timely filing; the applicant was under a legal disability (e.g., an

unaccompanied minor) during the one-year period; or the applicant

received ineffective assistance of counsel, as that concept has been

interpreted by the Board of Immigration Appeals, resulting in a failure

to file a timely application. Nevertheless, because of both the novelty

and importance of these new provisions, the Department welcomes

suggestions from the public on how best to implement them.

The proposed rulemaking also offers guidance on how to apply

section 208(d)(6) of the Act, which provides that an alien who

knowingly makes a frivolous asylum application shall be permanently

ineligible for any benefits under the Act. At Sec. 208.18, the rule

first provides that such determinations may only be made in a final

order by an immigration judge or the Board of Immigration Appeals. The

rule also defines an application as ``frivolous'' if it is fabricated

or brought for an improper purpose. In doing so, the Department is

carrying out one of the central principles of the asylum reform process

begun in 1993; to discourage applicants from making patently false

claims.

It should be noted that the proposed rule does not discuss

Sec. 208.19 dealing with the admission of the spouse and children of an

alien granted asylum status. This topic was the subject of a separate

proposed rule published July 9, 1996. See 61 FR 35,984 (1996). That

separate rulemaking will be incorporated into the overall asylum

regulations once it is finalized.

Credible Fear Determination and Claims of Asylum or Fear of

Persecution by Alien Subject to Expedited Removal

Under the new section 235(b)(1)(A)(ii) of the Act, an alien subject

to expedited removal who indicates an intention to apply for asylum or

who expresses a fear of persecution will be referred to an asylum

officer to determine if the alien has a credible fear of persecution.

Credible fear of persecution is defined in section 302(a) of IIRIRA to

mean that ``there is a significant possibility, taking into account the

credibility of the statements made by the alien in support of the

alien's claim and such other facts as are known to the officer, that

the alien could establish eligibility for asylum under section 208.''

Interviews to determine whether an alien has a credible fear of

persecution will be conducted by an asylum officer, either at the port-

of-entry or at designated locations such as detention centers. For

purposes of this credible fear interview, an asylum officer is defined

in the Act as an immigration officer who has had professional training

in country conditions, asylum law, and interview techniques comparable

to that provided to full-time adjudicators of applications under

section 208, and is supervised by an officer who meets the same

criteria and who has had substantial experience adjudicating asylum

applications. This definition may include officers other than full-time

asylum officers, provided they have undergone the necessary training

and have the requisite supervision, but the Service will generally

attempt to assign full-time asylum officers to the task of determining

credible fear. Prior to the interview, the alien may consult with a

person or persons of his or her own choosing at no cost to the

Government, provided it does not unreasonably delay the process.

The asylum officer will make a determination whether the alien has

a credible fear of persecution. Service procedures will require that

the determination be reviewed by a supervisory asylum officer. The

supervisory asylum officer may direct the asylum officer to interview

the applicant further, or to research country conditions or other

matters relevant to the decision. If the supervisory asylum officer

agrees that the alien has not demonstrated a credible fear of

persecution, the alien will be ordered removed under the provisions of

section 235(b)(1)(B)(iii)(I) of the Act. If the alien requests review

of the determination that he or she has not demonstrated a credible

fear of persecution, the credible fear determination will be promptly

reviewed by an immigration judge. The alien will have the opportunity

to be heard and questioned by the immigration judge. This review will

be limited solely to the issue of credible fear, and may be conducted

either in person or by telephonic or video connection. By statute, the

review should be conducted as soon as possible following the credible

fear determination, preferably within 24 hours, and no later than seven

days after the date of determination. The alien will be detained during

this review period, and if found by the immigration judge not to have a

credible fear, will be promptly removed.

Section 235(b)(1)(B)(ii) of the Act provides that aliens who are

determined by an asylum officer to have a credible fear of persecution

will be detained for further consideration of the asylum claim. While

the statute does not specify how or by whom this further consideration

should be conducted, the proposed rule provides for such consideration

by an immigration judge in removal proceedings conducted pursuant to

section 240 of the Act. In the removal hearing, the immigration judge

will make a determination whether alien is eligible for asylum under

section 208 of the Act or for withholding of removal under section

241(b)(3) of the Act. The removal order will be subject to

administrative review by the Board in accordance with section 240 of

the Act and Sec. 3.1(b)(3).

Credible fear determinations are also made in the case of

stowaways. Although not entitled to removal proceedings under section

240 of the Act, a stowaway who has been determined by an asylum officer

(or by an immigration judge upon review of a negative determination by

an asylum officer) to have a credible fear of persecution may file an

asylum application to be adjudicated by an immigration judge in asylum-

only proceedings. There is no appeal from the decision of an

immigration judge as to whether the stowaway has a credible fear of

persecution. A stowaway who is found not to have a credible fear will

be

[[Page 448]]

expeditiously removed. However, a stowaway who meets the credible fear

threshold and is allowed to present an asylum or withholding of removal

application in a proceeding before an immigration judge may appeal the

resulting decision to the BIA.

Proposed Changes Not Mandated by IIRIRA

The rulemaking also proposes to remove Secs. 208.13(b)(2)(ii) and

208.16(b)(4) which require that adjudicators give ``due consideration

to evidence that the government of the applicant's country of

nationality or last habitual residence persecutes its nationals or

residents if they leave the country without authorization or seek

asylum in another country.'' The regulations accomplish little and are

potentially misleading in their current form. The term ``due

consideration'' provides little guidance. Moreover, the question of

whether punishment for a migration-related offense is ``persecution''

hinges on an evaluation of the circumstances of each case. Under

current law, prosecution for migration-related offenses does not

ordinarily amount to persecution. Since the provision does not offer

any assistance in adjudicating claims involving prosecution for

unauthorized departure, we propose removing it from the regulations.

The rule provides a special regulation to govern the application of

section 243(h)(3) of the Act, a provision added by section 413(f) of

AEDPA that was eliminated by section 307 of IIRIRA. That section

provided that, notwithstanding any other provision of law, the Attorney

General could grant an alien withholding of deportation if she

determined that it was necessary to do so to ensure compliance with the

1967 Protocol Relating to the Status of Refugees. In new section

241(b)(3)(B) of the Act, the only change Congress made to the existing

bars to withholding of deportation was to require, in the case of an

alien convicted of an aggravated felony (or felonies), that the alien

receive an aggregate term of imprisonment of at least 5 years before

such crime or crimes are automatically considered to be particularly

serious. We understand this change to reflect Congress' conclusion that

the bars to withholding of deportation or removal are consistent with

the United States' obligations under the 1967 Protocol Relating to the

Status of Refugees, except potentially in the case of an aggravated

felon who receives less than a 5-year aggregate sentence. The

Department proposes a regulatory interpretation of section 243(h)(3)

that is consistent with this most recently expressed view of the

Congress. Thus, the rule provides that an alien may attempt to obtain

relief under section 243(h)(3) of the Act only if he or she is an

aggravated felon who received an aggregate sentence of less than 5

years and can establish that the crime or crimes of which he or she has

been convicted are not particularly serious. This will require a case-

by-case determination whether the crime or crimes committed by the

alien are particularly serious. Only if the crime is determined not to

be particularly serious will the alien be entitled to have his or her

withholding of deportation claim considered. Because section 243(h)(3)

of the Act was eliminated by IIRIRA, this rule applies only to

applications for withholding made in proceedings commenced prior to

April 1, 1997, so long as a final action on any such withholding

request was not taken prior to April 24, 1996, the date of AEDPA's

passage.

Establishment of a Fee for Filing an Application for Asylum

This rulemaking does not propose to establish a fee for filing an

application for asylum or to expand the situations under which fees may

be charged for asylum-based applications for work authorization,

despite the statutory permission to do so contained in section

208(d)(3) of the Act. Should the Department decide to do so at a later

date, that action would be part of a separate rulemaking.

Employment Authorization for Asylum Applicants

The proposed regulations will continue to allow asylum applicants

to apply for an employment authorization document (EAD) once the asylum

application has been pending for 150 days, which is 30 days before the

new statutorily-mandated time for granting such authorization contained

in section 208(d)(2) of the Act.

Rules of Procedure for Executive Office for Immigration Review

Implementation of IIRIRA will impact the rules of procedure for

proceedings before the Executive Office for Immigration Review. These

proposed rules amend the regulations to expand the scope of the rules

of procedure to include new removal proceedings in provisions regarding

motions to reopen and reconsider, jurisdiction and commencement of

proceedings, stipulated requests for orders, in absentia hearings,

public access to hearings, and additional charges. The proposed rules

also add provisions regarding the scheduling of removal cases, custody

and bond in removal proceedings, and contents of the Notice of Appear

form.

Subpoenas by Immigration Judges

Section 304 of IIRIRA bestows upon immigration judges the

statutory authority to issue subpoenas for the attendance of witnesses

and presentation of evidence in removal proceedings. This subpoena

power had previously been granted to immigration judges by regulation

only and the immigration judges had to enlist the district director to

invoke the aid of the district court for failure to comply with the

subpoena. The proposed rule amends the subpoena provisions to provide

that an immigration judge directly invokes the aid of the district

court for an order requiring the compliance with a subpoena instead of

requiring the district director to take such action.

New Removal Proceedings

Section 240 of the Act as amended by section 304(a) of IIRIRA

merges the separate proceedings of exclusion and deportation into one

removal proceeding. In this single proceeding, the immigration judge

will determine whether an alien is inadmissible under section 212 of

the Act or deportable under section 237 (formerly section 241) of the

Act. In light of these statutory changes, individuals in removal

proceedings are referred to in the proposed rule as determined to be

removable or ordered removed after being found to be either

inadmissible or deportable (but no longer will be referred to as

excludable or excluded). Removal proceedings will in nearly all

respects resemble present day deportation or exclusion proceedings,

with some minor differences outlined below and implemented by this

proposed rule.

Although not as a result of any provision of IIRIRA, the Department

is soliciting public comments on whether these regulations should

include a provision for appointment of a guardian ad litem in a case

where a minor or incompetent respondent in removal proceedings is

otherwise unrepresented.

Applicability of New Removal Provisions

The IIRIRA provides that the newly created removal procedures and

the new amended forms of relief available in removal proceedings which

appear in title III-A of IIRIRA will apply to all individuals placed

into removal proceedings on or after April 1, 1997, and will not affect

individuals who

[[Page 449]]

were in deportation or exclusion proceedings prior to April 1, 1997.

See Section 309(a) of IIRIRA. For this reason, the proposed rule

preserves the former regulations relating to deportation and exclusion

proceedings for those individuals who will continue on in such

proceedings after April 1, 1997. The proposed rule preserves such

provisions by retaining current regulatory provisions previously

contained in 8 CFR parts 236, 242, and 244 within separate new subparts

of part 240. In addition, sections formerly contained in parts 237 and

243 have been retained in new subparts of part 241. A more detailed

description of the entire reorganization of effected parts of title 8

is contained later in this supplementary information.

The Notice to Appear (Form I-862)

The charging document which commences removal proceedings under

section 240 of the Act will be referred to as the Notice to Appear,

Form I-862, replacing the Order to Show Cause, Form I-221, that was

used to commence deportation proceedings and the Notice to Detained

Applicant of Hearing Before an Immigration Judge, Form I-110. The

Notice to Appear must contain nearly all of the information that was

required to be in the Form I-221. The regulations reflect the fact that

section 304 of IIRIRA did not retain the requirement that the Notice to

Appear be provided in Spanish; that the mandatory period between

service of a Notice to Appear and the date of an individual's first

hearing is 10 days rather than the 14 days required for the Order to

Show Cause; that service of the Notice to Appear by ordinary mail,

rather than certified mail, is sufficient if there is proof of

attempted delivery to the last address provided by the alien and noted

in the Central Address File; and that no written notice need be

provided if the alien has failed to provide his or her address as

required under the amended Act.

In addition, the proposed rule implements the language of the

amended Act indicating that the time and place of the hearing must be

on the Notice to Appear. The Department will attempt to implement this

requirement as fully as possible by April 1, 1997. Language has been

used in this part of the proposed rule recognizing that such automated

scheduling will not be possible in every situation (e.g., power

outages, computer crashes/downtime.)

Burdens of Proof in Removal Proceedings

The proposed regulation restates the burden of proof language in

section 240(c) of the Act as revised by section 304(a) of IIRIRA. In

removal proceedings in which an alien is charged with deportability,

the Service must establish deportability by clear and convincing

evidence. This replaces the clear, convincing, and unequivocal standard

set forth in Woodby v. INS, 385 U.S. 276 (1966). An applicant for

admission to the United States must establish that he or she is clearly

and beyond a doubt entitled to be admitted and is not inadmissible. In

the case of an alien present in the United States without being

admitted or paroled, once the Service establishes alienage, the alien

must prove that he or she is clearly and beyond a doubt entitled to be

admitted and is not inadmissible, unless the alien proves by clear and

convincing evidence that he or she is lawfully present pursuant to a

prior admission.

Cancellation of Removal

The proposed rule provides for the application by qualified

individuals in removal proceedings for the new form of relief created

by section 304(a) of IIRIRA: cancellation of removal. Cancellation of

removal comes in two forms. The first form, available to lawful

permanent residents, is similar to relief under section 212(c) of the

pre-IIRIRA Act, except that only 5 years of the required 7 years of

residence to statutorily qualify for this form of cancellation of

removal need be fulfilled as a lawful permanent resident. This means

that up to 2 years of the 7 years can be satisfied with temporary

residence. This provision codifies the interpretation by a number of

Federal circuit courts that a period of temporary residence counts

toward the 7-year residency requirement for relief under section 212(c)

of the pre-IIRIRA Act.

The second form of cancellation of removal resembles suspension of

deportation under section 244 of the pre-IIRIRA Act, except that an

applicant for the second form of cancellation of removal must

demonstrate continuous physical presence for 10 years instead of 7

years, and must show ``exceptional and extremely unusual hardship''

instead of ``extreme hardship.'' Further, unlike suspension of

deportation, this form of cancellation of removal is not available for

aliens who can only show hardship to themselves. The proposed rule also

implements the availability of this second form of cancellation of

removal to a battered spouse or child who can demonstrate 3 years of

continuous physical presence in the United States and who shows that

removal would result in ``extreme hardship'' to the battered spouse,

his or her child, or the battered child's parent.

Administrative Motions To Reopen and Reconsider Removal Proceedings

Section 304(a) of IIRIRA added a number of motions procedures to

the Act regarding the reopening or reconsideration of a final order of

removal. For the most part, these new statutory provisions encompass

the new procedures implemented by EOIR's new motions and appeals

regulation, which took effect on July 1, 1996. However, the statute

does place the time and number restrictions for motions specifically on

the alien. The proposed rule implements this change by adding a

provision to indicate that in removal proceedings, the restrictions

only apply to the alien and not to the Service. In addition, unlike the

pre-IIRIRA regulations excepting motions to reopen exclusion or

deportation orders rendered in absentia from both the 90-day and 1-

motion restrictions, the statute only excepts motions to reopen removal

orders rendered in absentia from the 90-day time period and not the

numerical restriction. The proposed rule implements this change as

well.

Proceedings To Review Asylum Claims by Certain Aliens Not Eligible

for Section 240 Proceedings

This rule established a new Notice of Referral to Immigration

Judge, Form I-863, to be used to institute limited proceedings before

an immigration judge. This referral form will be used by immigration

officers to initiate review by an immigration judge for asylum or

withholding of removal claims by Visa Waiver Pilot Program (VWPP)

refusal cases and VWPP status violators, crew members, aliens ordered

removed pursuant to section 235(c) of the Act, aliens present pursuant

to section 101(a)(15)(S) of the Act, and alien stowaways found to have

a credible fear of persecution. This proceeding is limited solely to

the asylum or withholding claim and no other forms of relief may be

presented by the alien or considered by the immigration judge.

Asylum officers will also use the Notice of Referral for expedited

removal cases where the alien seeks review of a ``no credible fear''

finding by the asylum officer in section 235(b)(1) proceedings or for

stowaways, prior to the execution of the expedited removal order or

removal of the stowaway.

In addition, the Notice of Referral will be used to institute an

immigration judge review of expedited removal orders issued against

aliens claiming to be lawful permanent residents, refugees or asylees.

In such cases, the immigration judge will review the

[[Page 450]]

expedited removal order, which may either be affirmed or canceled.

Existing regulations regarding deportable VWPP aliens who claim

asylum state that the alien will be referred for a determination of

deportability. The current regulations for VWPP applicants arriving at

ports-of-entry are vague, stating only that the alien will be referred

to an immigration judge for further inquiry. The proposed change will

clarify that VWPP applicants and status violators are to be provided a

hearing and appeal on the asylum and withholding claim only.

Existing regulations provide that a crewman, stowaway, or alien

temporarily excluded under section 235(c) of the Act file an

application for asylum with the district director and that the district

director forward it to an asylum officer for adjudication. The Attorney

General has determined that these claims should be adjudicated by an

immigration judge. This determination to adjudicate the asylum claims

for these classes of aliens in a proceeding before an immigration judge

is in response to recent case law holding that stowaway asylum

applicants must be afforded the same asylum procedures deemed necessary

for other aliens. In Marincas v. Lewis, 92 F.3d 195, 200-201 (3rd Cir.

1996), the court held that the plain language of the Refugee Act left

no room to construe the statue to permit differing asylum procedures

for stowaways. Although the Department with that holding, the Attorney

General has found that providing a proceeding before an immigration

judge to hear the asylum claim will address the concerns raised in

Mirancas, while remaining consistent with the statutory directives to

limit due process for these classes of aliens. As required by IIRIRA, a

stowaway will receive a credible fear determination by an asylum

officer prior to the referral to an immigration judge.

Reorganization of Certain Regulatory Sections

The IIRIRA substantially revised sections of the Act relating to

the arrest of aliens suspected of inadmissibility to or unlawful

presence in the United States, detention of such aliens prior to and

during removal proceedings, the conduct of removal proceedings, and

ancillary issues such as voluntary departure and available forms of

relief. The Service and EOIR have jointly undertaken a complete

revision of the affected parts of title 8, to bring the relevant

regulatory parts into alignment with the new sections of the Act. The

newly revised sections are organized in the following manner: 8 CFR

part 236, Subpart A--Detention of aliens prior to order of removal,

Subpart B--Family Unity Program; 8 CFR part 238--Expeditious removal of

aggravated felons; 8 CFR part 239--Initiation of removal proceedings; 8

CFR part 240, Subpart A--Removal proceedings, Subpart B--Cancellation

of removal, Subpart C--Voluntary departure, Subpart D--Exclusion of

aliens (for proceedings commenced prior to April 1, 1997); Subpart E--

Proceedings to determine deportability of aliens in the United States:

Hearing and Appeal (commenced prior to April 1, 1997); Subpart F--

Suspension of deportation and voluntary departure (for proceedings

commenced prior to April 1, 1997); Subpart G--Civil penalties for

failure to depart; 8 CFR part 241, Subpart A--Post-hearing detention

and removal, Subpart B--Deportation of Excluded Aliens (for hearings

commenced prior to April 1, 1997), Subpart C--Deportation of Aliens in

the United States (for hearings commenced prior to April 1, 1997); 8

CFR parts 237, 242, and 243 have been removed and reserved; 8 CFR part

244 will now contain regulations pertaining to the Temporary Protected

Status program.

Sections of the old regulations which are still applicable to

proceedings commenced prior to April 1, 1997, have been retained, but

moved to new parts of the regulations as separate subparts according to

topic. For example, the regulations relating to the conduct of

proceedings, formerly contained in 8 CFR part 242, have been moved to 8

CFR part 240, which contains regulations for the conduct of removal

proceedings.

Most sections of the regulations have not been retained in this

manner. They have been totally revised, in conformity with the new

statute. In some instances, these regulations distinguish between

situations involving aliens ``grandfathered'' under former statutory

authority and those encompassed by the provisions of IIRIRA. For

example, new Sec. 252.2(b) contains separate provisions for alien

crewmen who arrived prior to April 1, 1997, and those who arrive after

that date.

Because the Service and EOIR have concerns about the serious

restructuring of these regulations, the public is invited to comment on

the approach taken by this rulemaking. In particular, the Service

wishes to solicit comments concerning any possible unintended

consequences of the restructuring, such as the inclusion of new

sections which encompass aliens entitled to consideration under ``old''

provisions.

Apprehension, Custody, and Detention of Aliens

This rule incorporates the changes made to section 242 of the Act

by section 440(c) of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Public Law 104-132 as well as section 303(a) of the

IIRIRA. By enactment of AEDPA, Congress altered the provisions created

by section 504 of the Immigration Act of 1990 (IMMACT), Public Law 101-

649, enacted November 29, 1990, relating to release of lawfully

admitted aliens who had been convicted of aggravated felonies. The

AEDPA directed the Attorney General to detain aliens convicted of

aggravated felonies without bond and extended the mandatory detention

provisions to aliens deportable for conviction of certain other

felonies. The IIRIRA extended the mandatory detention provisions to

additional classes of inadmissible and deportable aliens but provided

an exception for certain witnesses. It also allowed the Attorney

General the option of a transition period for implementation of

mandatory detention. The INS exercised this discretion and implemented

the transition period custody rules on October 9, 1996, effective for 1

year. The Act is very clear as to which aliens may be released. This

rule proposes to amend the Service's regulations to comply with the

amended Act by removing the release from custody provisions for aliens

who may no longer be released. These amendments to the regulations will

take effect upon the termination of the transition period. As for non-

criminal aliens, the rule reflects the new $1,500 minimum bond amount

specified by IIRIRA. Otherwise, the proposed rule essentially preserves

the status quo for bond determination by the Service and bond

redetermination proceedings before immigration judges. Despite being

applicants for admission, aliens who are present without having been

admitted (formerly referred to as aliens entering without inspection)

will be eligible for bond and bond redetermination.

Expedited Deportation Procedures for Aliens Convicted of Aggravated

Felonies Who Are Not Lawful Permanent Residents

This rule incorporates the changes made to section 242A(b) of the

Act by section 442 of the AEDPA and section 304(c) of the IIRIRA. By

enactment of the AEDPA, Congress made several changes to the expedited

administrative deportation procedure authorized under section 130004 of

the Violent Crime Control and Law Enforcement Act of

[[Page 451]]

1994, Public Law 103-322. Some of these changes were modified by the

IIRIRA and one was eliminated. This rule proposes to amend the

Service's regulations to comply with the amended Act as follows: aliens

who have lawful permanent residence on a conditional basis under

section 216 of the Act are subject to expedited administrative

deportation procedures and have been included in the regulation. Since

section 238(b)(5) of the Act states that an alien subject to these

proceedings is ineligible for any relief from removal, all references

to prima facie eligibility for relief and to relief from deportation

have been removed. This revision also eliminates references to release

from custody, since aliens subject to these proceedings are now

statutorily ineligible for release as a result of changes to other

sections of the Act.

Voluntary Departure

The proposed rule outlines how voluntary departure will be handled

at various stages of proceedings. Prior to the initiation of

proceedings, the Service has sole jurisdiction to grant voluntary

departure for a period not to exceed 120 days. The Service may impose

any conditions it deems necessary to ensure the alien's timely

departure from the Untied States, including the posting of a bond,

continued detention pending departure and removal under safeguards.

After proceedings have been commenced and at any time up to 30 days

subsequent to the master calendar, the immigration judge may grant

voluntary departure for a period not to exceed 120 days. In each

instance, the alien will be required to present to the Service travel

documents sufficient to assure lawful entry into the country to which

the alien is departing, unless such document is not necessary for the

alien's return.

An alien may be granted voluntary departure at the conclusion of

proceedings if the immigration judge finds that the alien meets the

conditions of section 240B(b) of the Act. The judge may impose such

conditions as he or she deems necessary to ensure the alien's timely

departure from the United States, but in all cases, the alien shall be

required, within 5 days of the order, to post a voluntary departure

bond of no less than $500. In order for the bond to be canceled, the

alien must provide proof of departure to the district director. If the

alien fails to depart, or to meet any of the conditions attached to the

grant of voluntary departure, such order will vacate and the alternate

order of deportation will stand.

Section 304(a) of IIRIRA makes significant changes to both the

nature and duration of voluntary departure. Under the new law,

voluntary departure is clearly meant to be granted to aliens illegally

in the United States who are able and willing to depart in a relatively

short period of time. It will no longer be available to those who are

seeking to significantly extend their time in the United States for

other reasons. If fact, the time periods which will be allowed for

voluntary departure are such that they meet or exceed the normal

processing time for applications for employment authorization. In light

of these changes, the Department is eliminating the provisions

currently contained in 8 CFR parts 242 and 274a which permit the

granting of work authorization to aliens who have been given voluntary

departure.

New section 240B of the Act and the corresponding regulations

represent a significant departure from the predecessor provisions for

voluntary departure. Public comments regarding the Department's

approach to implementation of this provision will be particularly

welcome.

Reinstatement of Removal Orders Against Aliens Illegally Reentering

Section 241(b)(5) of the Act requires the Attorney General to

reinstate the removal order for an alien who illegally reenters the

United States after having been removed or after having departed

voluntarily under a removal order. Removal would be accomplished under

the proposed rule without referral to an Immigration Court. Although

the Act previously contained a provision for reinstatement of a final

order of deportation, the accompanying regulation required the issuance

of an order to show cause and a hearing before an immigration judge.

This resulted in limited use of the provision. The proposed rule

provides a procedure for a district director to reinstate a final order

upon establishing identity and unlawful reentry of a previously

deported or removed alien found in the United States. Once identity is

affirmed, the original order will be executed.

Detention and Removal of Aliens Ordered Removed

This rule incorporates the changes made to section 241 of the Act

by section 305(a) of IIRIRA. Section 241 of the Act now relates to the

period for removal of aliens, post-order detention and removal of

aliens, reinstatement of final orders, and detention and removal of

stowaways.

This rule provides for the assumption of custody during the removal

period, allows detention beyond the period, and provides condition for

discretionary release and supervision of aliens who cannot be removed

during the period. A district director may issue a warrant of removal

based on a final administrative order of removal. The warrant of

removal will authorize the Service to take an alien in the United

States into custody during the removal period. The Service is required

to assume custody of any alien within the United States once the 90-day

removal period begins, as defined in section 241 of the Act, and detain

the alien until removal or expiration of the removal period. At the

expiration of the removal period, the Service has the discretion to

release an alien. If the alien shows to the satisfaction of the

district director that the alien is not a threat to the community and

is likely to report for removal, the district director may release the

alien on an order of supervision. As a condition or release, an

authorized officer may require the posting of a bond, impose

restrictions on conduct, and require periodic reporting to a designated

officer. The district director may grant employment authorization as

specified in the Act. The district director retains the authority to

grant humanitarian stays of removal.

This rule restates the principle, previously found at Sec. 243.5,

that an alien who departs the United States while a final order is

outstanding has executed the order.

Detention and Removal of Stowaways

The arrival of stowaways in the United States, particularly aboard

cargo vessels, has long been a problem for both the transportation

companies and the Service. Section 308(e) of IIRIRA has stricken former

section 273(d) of the Act, which governed stowaways and section 305 of

IIRIRA has clearly defined the responsibilities for stowaways and costs

of detention in the new section 241 of the Act. All stowaways are

deemed to be inadmissible under the Act and are not entitled to a

hearing on admissibility. Those with a credible fear of persecution may

seek asylum in accordance with 8 CFR part 208 in proceedings before an

immigration judge.

Under the provisions of section 241 of the Act, the carrier (which

includes the owner, agent, master, commanding officer, person in

charge, purser, or consignee) is responsible for detaining the

stowaways on board the vessel or aircraft (or at another approved

location) until completion of the inspection, and may not permit the

alien to leave the vessel or aircraft, unless authorized by the Service

for either medical treatment,

[[Page 452]]

detention by the Service, or removal of the stowaways. The Service may

order that the stowaway be removed on the vessel or aircraft of arrival

when that is the most practical manner of removal. With the mutual goal

of removing stowaways by the most expeditious and secure means, the

Service will generally favor any reasonable request to remove the

stowaway on other than the vessel or aircraft of arrival. The carrier

must make all travel arrangements, including obtaining any necessary

travel documents.

Since asylum-seeking stowaways may not be removed pending a final

decision on their asylum claim, which may sometimes extend for a

lengthy period, the statute limits the detention liability of the owner

of the vessel or aircraft. The owner is now responsible for a period of

time needed to determine whether the stowaway has a credible fear of

persecution, and a reasonable period, beginning when a credible fear is

found to exist, during which the asylum application may be considered.

The statute and regulations allow for up to 72 hours to arrange and

conduct the credible fear interview, although the Service anticipates

that this will occur as expeditiously as possible, depending on the

location and circumstances of the stowaway's arrival. If the stowaway

is allowed to pursue his or her asylum application, the statute

provides 15 working days, excluding Saturdays, Sundays, and holidays,

for the asylum claim to be heard, at the expense of the owner of the

vessel or aircraft. Any detention required beyond that time period will

be at the expense of the Service. The carrier remains liable for

removal, including removal expenses, if the alien is denied asylum.

Adjustment of Status

Adjustment of status is granted in the discretion of the Attorney

General. Consistent with Congress' intent that arriving aliens, as that

term is defined in Sec. 1.1(g), be removed in an expedited manner

through the procedures provided in section 235(b)(1) of the Act, the

Attorney General has determined that she will not favorably exercise

her discretion to adjust the status of arriving aliens who are ordered

removed pursuant to section 235(b)(1) of the Act or who are placed in

removal proceedings under section 240 of the Act. Of course, any such

alien who has been persecuted or has a reasonable fear of persecution

may request asylum in expedited removal. Arriving aliens who are

granted asylum may then adjust their status outside of the removal

proceeding context. In all other instances, those apprehended after

arriving illegally in the United States should have no other benefit

available to them, and should not be permitted to delay their removal

through an application for adjustment of status. Any other arriving

alien who is eligible to receive an immigrant visa will be required to

return to his or her country of residence and request it through the

consular process available to all aliens outside of the United States.

If the Service decides as a matter of prosecutorial discretion, not to

initiate removal proceedings but to parole the arriving alien, the

alien will be able to apply for adjustment of status before the

district director.

Disposition of Cases of Aliens Arrested in the United States

The regulation proposes to amend Sec. 287.3 to differentiate the

actions that must be taken when an alien is apprehended entering or

attempting to enter the United States in violation of the immigration

laws, or is otherwise found in the United States in violation of those

laws. Disposition of the case will vary depending on the circumstances

of entry or attempted entry, or the specific violation with which the

alien is charged. This section is amended to include those cases that

may now be processed under the expedited removal provisions of section

235(b)(1) of the Act, if such provisions are invoked by the

Commissioner.

Elimination of Mexican Border Visitor's Permit

The Mexican Border Visitor's Permit, Form I-444, is a record of

entry issued by the Service at land border ports-of-entry along the

United States/Mexico border to holders of Nonresident Alien Border

Crossing Cards, Forms I-186 and I-586. The Nonresident Alien Border

Crossing Card is issued in place of a nonimmigrant visa. Currently,

Form I-444 is issued when the requested visit to the United States will

be for more than 72 hours but less than 30 days in duration or when

requested travel is more than 25 miles from the United States/Mexico

border but within the five states of Arizona, California, Nevada, New

Mexico, or Texas. The Service also issues Form I-444 to Mexican

nationals who are in possession of valid Mexican passports and

multiple-entry nonimmigrant visas requesting admission to the United

States under the limitations described above.

The current Form I-444 has been in use since 1983 and the Service

now issues over 200,000 of these forms per month. Due largely to its

lack of security features and the absence of standardization between

ports, Form I-444 is widely counterfeited. The Service has been unable

to demonstrate that there is a connection between the limits on travel

by persons issued Forms I-444 and immigration violations. These

restrictions should be lifted and applicants for admission should be

admitted as any other person in possession of a B-1 or B-2 visa is

admitted.

This regulation proposes to remove references to the issuance of

the form and the section requiring a fee for issuance of Form I-444. A

provision is added requiring the issuance of Form I-94, and collection

of the fee, for Mexican nationals seeking to enter for more than 72

hours and/or to travel further than 25 miles from the United States/

Mexico border. The Form I-94 issued to a B-2 visitor for pleasure is

normally valid for 6 months. The proposed rule provides in

Sec. 235.1(f) that a Form I-94 issued at a land border port-of-entry is

valid for multiple entries unless otherwise indicated.

Streamlining and Updating of Regulations

The President has directed each agency to undertake a review of its

regulations for the purpose of reducing the regulations or, when

possible, rendering them more readable and comprehensible. See E.O.

12866, 58 FR 51,735 (1993). The Service is engaging in a thorough line-

by-line review of all regulations in Title 8 of the Code of Federal

Regulations.

Updated Sections

References to the former section 212(a)(17) of the Act dealing with

the Attorney General's consent to apply for readmission have been

removed from Sec. 217.2(b) and replaced with the current citation.

References throughout 8 CFR part 235 to special inquiry officers have

been replaced with the title ``immigration judge.'' References to

regional commissioners have been replaced with references to regional

directors. The regulatory language contained in Secs. 238.1, 238.2,

238.3, and 238.5 has been moved to 8 CFR part 233, to conform with

redesignation of those statutory sections by the IIRIRA. Lists of

carriers signatory to agreements with the Service for carriage to

transit passengers and preinspection have been removed form the

regulations and will be maintained by the Headquarters Office of

Inspections.

Terminated Programs

References to initial (not replacement) application procedures in

Sec. 235.12 for Form I-777, Northern Mariana Card, have been removed as

the application

[[Page 453]]

period for that form expired in July 1990. Section 235.9, dealing with

refugee admissions, has been removed as that procedure is no longer

followed and its subject is now governed by section 207 of the Act.

Provisions in Sec. 211.2 dealing with waivers of passport requirements

for third-preference immigrants have been removed as that category of

immigrant no longer exists. Terms which were appropriate in referring

to exclusion and deportation procedures have been changed to reflect

the single removal process.

Removal of Purely Procedural Matters Involving Only Internal

Service Processes

The discussion of internal Service procedures regarding the

admission of immigrant children formerly found in Sec. 211.4 has been

removed. Language in Sec. 211.5 relating to admission procedures for

alien commuters has been removed in favor of placing such information

into Service Field Manuals. Examples dealing with alien crewmen, as

well as Canadian nationals, have been removed from Sec. 235.1. Part 232

of 8 CFR dealing with the procedures for notification of the master or

agent of an arriving vessel when arriving aliens were placed in

detention for mental or physical examination has been removed since it

is addressed in Service manuals. Language dealing with procedures for

completion of entry documents for nonimmigrant aliens, Mexican border

crossers, bearers of Mexican diplomatic passports, and paroled aliens

in 8 CFR part 235 has been removed. Language in Sec. 235.2 relating to

deferred inspection procedures for incapacitated or incompetent aliens

has also been removed. Section 235.4 dealing solely with Service

procedures for endorsing documents evidencing admission has been

revised to address the withdrawal of an application for admission. The

former Sec. 251.1(d), dealing with the notations to be made on Service

forms when inspecting crewmen, has been incorporated into Service

manuals.

Elimination of Duplication

Duplicative references have been removed. Language in Sec. 217.2,

relating to eligibility for the Visa Waiver Pilot Program, has been

removed as it merely restates the eligibility requirements contained in

the Act. Language in Sec. 217.3 and throughout relating to Visa Waiver

Pilot Program participants' eligibility for other immigration benefits

and readmission after departure to contiguous territory has been

removed as it merely restates the Act and is covered by other

regulations in this part.

Streamlining

Section 211.1. has been restructured in its entirety to make it

easier to comprehend. The provisions relating to admission of children

of lawful permanent residents formerly contained in Sec. 211.2 have

been consolidated into the general waiver provisions of section

Sec. 211.1. Language formerly in Sec. 211.2(b) which referred to other

code sections by description has been replaced by a simple citation.

Sections 211.3, 211.4, and 235.9 have been removed and reserved as

their contents are addressed in other sections of this part. The 8 CFR

part 251, relating to alien crewmen, longshore work, and vessels has

been restructured and clarified.

Unnecessary recitals of the law have been removed in the following:

Sec. 211.5(b), relating to forfeiture of an I-551 upon loss of resident

status by a commuter alien; and Sec. 217.1, which merely restates

statutory language regarding eligibility for admission under the Visa

Waiver Pilot Program. The 8 CFR part 217 has been streamlined by

consolidating various definitions throughout that part into one

section. Confusing language in Sec. 217.3 has been streamlined with

regard to readmission under the Visa Waiver Pilot Program of an alien

who has departed to contiguous territory or an adjacent island has been

streamlined.

Other Changes

In addition, conforming and purely editorial or grammatical

revisions have been made, as appropriate.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that the rule will not have a significant adverse

economic impact on a substantial number of small entities because of

the following factors. This rule affects only Federal government

operations by codifying statutory amendments to the Immigration and

Nationality Act primarily regarding the examination, detention, and

removal of aliens from the United States. It affects only individuals

and does not impose any reporting or compliance requirements on small

entities.

Executive Order 12866

This rule is considered by the Department of Justice to be a

``significant regulatory action'' under Executive Order 12866, section

3(f), because it will have a significant economic impact on the Federal

government in excess of $100,000,000. No economic impact is anticipated

for state and local governments. The Service projects significant

increases in detention-related costs due to the provisions of IIRIRA

which mandate the custody of criminal aliens who have committed two or

more crimes involving moral turpitude, aliens convicted of firearms

offenses, and aliens who have been convicted of an aggravated felony.

The type of crime that will qualify as an ``aggravated felony'' has

been greatly expanded under IIRIRA. In addition, all aliens, even non-

criminal aliens, who are subject to a final administrative order of

removal must be held in custody until the alien can be removed from the

United States. If the person is not removed within 90 days he or she

may be released from custody.

The Commissioner has notified Congress pursuant to section 303(b)

of IIRIRA that the Service lacks sufficient space to immediately

implement the mandatory custody provisions. This notification will

delay for 1 year full implementation of the new mandatory custody

provisions. Section 303(b) also provides for an additional 1-year delay

in implementation of the mandatory custody provisions upon a second

certification that space and personnel are inadequate to comply with

the requirement. The Service estimates that the cost to enforce the

requirement to detain all criminal aliens will be at least

$205,000,000. Of that total, personnel costs account for $65,284,000

which include detention and deportation officers ($32,873,000),

investigators ($25,501,000), legal proceedings personnel ($4,968,000),

and administrative support ($1,942,000). Non-personnel requirements are

projected to be at least $139,732,000 which includes increases in

bedspace and related alien custody requirements ($82,782,000--funds

3,600 beds @ $63.00 per day), increases in alien travel expenses

($36,000,000-3,600 removals @ $1,000 each), and detention vehicle

expenses ($20,950,000). The Service is currently in the process of

projecting the cost of the IIRIRA requirements that we detain all

aliens with administratively final orders of deportation pending their

removal.

In addition to these detention related costs, the Service estimates

that the expenses for training employees on the provisions of the new

law and the regulations will be $2,977,500. The cost to the Service

related to additional forms or changes needed to current forms is

estimated to be $2,000,000 (until the final list of form requirements

is completed it is not possible to more accurately assess this cost).

Finally, the Department believes there may be some

[[Page 454]]

increases needed for immigration judges to review credible fear

determinations made under section 235(b) of the INA.

The EOIR estimates increases in its costs related to IIRIRA-

mandated immigration judge review of credible fear determinations

(which must be made under stringent time frames) and the prompt

immigration judge review which IIRIRA requires of certain expedited

removal orders entered against aliens claiming to be lawful permanent

residents, asylees or refugees. Further, EOIR projects costs associated

with the need for an Immigration Court presence in nearly ever port-of-

entry, which will result from the above-mentioned credible fear review

and expedited removal review process. Also, there will be costs related

to the overall need for an increased Immigration Court presence at

existing Service detention centers to support the processing of the

additional detainees that will result from the implementation of this

rule. Similarly, EOIR anticipates a need for construction of new

Immigration Courts at new detention facilities the Service may open as

a result of this rule's implementation.

Although there are still a number of unknown variables which could

affect the total costs to EOIR to implement its part of the new

expedited removal process and to respond to the increased number of

detained individuals in proceedings under this rule, EOIR estimates

that the total annual cost for EOIR could be as high as $25,000,000. Of

that total, the cost for hiring new immigration judges and legal

support staff is projected to be $21,300,000. The cost for new video

and audio teleconfering equipment is estimated at $3,000,000. Training

costs are expected to be approximately $400,000. Finally, forms and

other support requirements are estimated to cost $300,000.

Small Business Regulatory Enforcement Act of 1996

At this time the Department considers this rule a ``major rule'' as

defined in 5 U.S.C. Sec. 804(2).

Executive Order 12612

The regulations proposed herein 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.

Executive Order 12988

This proposed rule meets the applicable standards set forth in

section 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

The information collection requirements contained in this rule have

been forwarded to the Office of Management and Budget under the Paper

Reduction Act. The OMB control numbers for these collections are

contained in 8 CFR 299.5, Display of control numbers.

List of Subjects

8 CFR Part 1

Administrative practice and procedure, Immigration.

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 204

Administrative practice and procedure, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 207

Administrative practice and procedure, Refugees, Reporting and

recordkeeping requirements.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 209

Aliens, Immigration, Refugees.

8 CFR Part 211

Immigration, Passports and visas, Reporting and recordkeeping

requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 213

Immigration, Surety bonds.

8 CFR Part 214

Administrative practice and procedure, Aliens.

8 CFR Part 216

Administrative practice and procedure, Aliens.

8 CFR Part 217

Air carriers, Aliens, Maritime carriers, Passports and visas.

8 CFR Part 221

Aliens, Surety bonds.

8 CFR Part 223

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 232

Aliens, Public health.

8 CFR Part 233

Administrative practice and procedure, Air carriers, Government

contracts, Travel.

8 CFR Part 234

Air carriers, Aircraft, Airports, Aliens.

8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 237

Aliens.

8 CFR Part 238

Administrative practice and procedure, Aliens.

8 CFR Part 239

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 240

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 243

Administrative practice and procedure, Aliens.

8 CFR Part 244

Administrative practice and procedure, Aliens.

[[Page 455]]

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 246

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 248

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 249

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 251

Air carriers, Aliens, Maritime carriers, Reporting and

recordkeeping requirements, Crewmen.

8 CFR Part 252

Air carriers, Airmen, Aliens, Maritime carriers, Reporting and

recordkeeping requirements, Crewmen.

8 CFR Part 253

Air carriers, Airmen, Aliens, Maritime carriers, Reporting and

recordkeeping requirements, Seamen.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 286

Air carriers, Immigration, Reporting and recordkeeping

requirements.

8 CFR Part 287

Immigration, Law enforcement officers.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

8 CFR Part 316

Citizenship and naturalization, Reporting and recordkeeping

requirements.

8 CFR Part 318

Citizenship and naturalization.

8 CFR Part 329

Citizenship and naturalization, Military personnel, Veterans.

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

Regulations is proposed to be amended as follows:

PART 1--DEFINITIONS

1. The authority citation for part 1 is revised to read as follows:

Authority: 8 U.S.C. 1101.

2. Section 1.1 is amended by revising paragraph (l), and by adding

new paragraphs (q) and (r) to read as follows:

Sec. 1.1 Definitions.

* * * * *

(l) The term immigration judge means an attorney whom the Attorney

General appoints as an administrative judge within the Executive Office

for Immigration Review, qualified to conduct specified classes of

proceedings, including a hearing under section 240 of the Act. An

immigration judge shall be subject to such supervision and shall

perform such duties as the Attorney General shall prescribe, but shall

not be employed by the Immigration and Naturalization Service.

* * * * *

(q) The term arriving alien means an alien who seeks admission to

or transit through the United States, as provided in 8 CFR part 235, at

a port-of-entry, or an alien who is interdicted in international or

United States waters and brought into the United States by any means,

whether or not to a designated port-of-entry, and regardless of the

means of transport. An arriving alien remains such even if paroled

pursuant to section 212(d)(5) of the Act.

(r) the term respondent means a person named in a Notice to Appear

issued in accordance with section 239(a) of the Act, or in an Order to

Show Cause issued in accordance with Sec. 242.1 of this chapter as it

existed prior to April 1, 1997.

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

3. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,

1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3

CFR, 1949-1953 Comp., p. 1002.

4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),

(b)(3), (b)(7), (b)(9), and (b)(10) to read as follows:

Sec. 3.1 General authorities.

* * * * *

(b) * * *

(1) Decisions of Immigration Judges in exclusion cases, as provided

in 8 CFR part 236, Subpart D.

(2) Decisions of Immigration Judges in deportation cases, as

provided in 8 CFR part 240, Subpart E, except that no appeal shall lie

from an order of an Immigration Judge under 8 CFR part 240, Subpart F,

granting voluntary departure within a period of at least 30 days, if

the sole ground of appeal is that a greater period of departure time

should have been fixed.

(3) Decisions of Immigration Judges in removal proceedings, as

provided in 8 CFR part 240.

* * * * *

(7) Determinations relating to bond, parole, or detention of an

alien as provided in 8 CFR part 236, Subpart A and 8 CFR part 240,

Subpart E.

* * * * *

(9) Decisions of Immigration Judges in asylum proceedings pursuant

to Sec. 208.2(b) of this chapter.

(10) Decisions of Immigration Judges relating to Temporary

Protected Status as provided in 8 CFR part 244.

* * * * *

5. Section 3.2 is amended by:

a. Revising the section heading;

b. Revising paragraph (b)(2);

c. Revising paragraph (c)(2) and (c)(3), and by

d. Revising paragraphs (d) through (f), to read as follows:

Sec. 3.2 Reopening or reconsideration before the Board of Immigration

Appeals.

* * * * *

(b) * * *

(2) A motion to reconsider a decision must be filed with the Board

within 30 days after the mailing of the Board decision or on or before

July 31, 1996, whichever is later. A party may file only one motion to

reconsider any given decision and may not seek reconsideration of a

decision denying a previous motion to reconsider. In removal

proceedings pursuant to section 240 of the Act, an alien may file only

one motion to reconsider a decision that the alien is removable from

the United States.

(c) * * *

(2) Except as provided in paragraph (c)(3) of this section, a party

may file only one motion to reopen deportation or exclusion proceedings

(whether before the Board or the Immigration Judge) and that motion

must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be

reopened. Except as provided in paragraph (c)(3) of this section, an

alien may file only one motion to reopen removal proceedings (whether

before the Board or the Immigration Judge) and that motion must be

filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be

reopened.

(3) In removal proceedings pursuant to section 240 of the Act, the

time limitation set forth in paragraph (c)(2) of this section shall not

apply to a motion to reopen filed pursuant to the

[[Page 456]]

provisions of Sec. 3.23(b)(4)(ii). The time and numerical limitations

set forth in paragraph (c)(2) of this section shall not apply to a

motion to reopen proceedings:

(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1)

or Sec. 3.23(b)(4)(iii)(A)(2);

(ii) To apply or reapply for asylum or withholding of deportation

based on changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered, if such evidence

is material and was not available and could not have been discovered or

presented at the previous hearing;

(iii) Agreed upon by all parties and jointly filed. Notwithstanding

such agreement, the parties may contest the issues in a reopened

proceeding; or

(iv) Filed by the Service in exclusion or deportation proceedings

when the basis of the motion is fraud in the original proceeding or a

crime that would support termination of asylum in accordance with

Sec. 208.22(f) of this chapter.

* * * * *

(d) Departure, deportation, or removal. A motion to reopen or a

motion to reconsider shall not be made by or on behalf of a person who

is the subject of exclusion, deportation, or removal proceedings

subsequent to his or her departure from the United States.

(e) Judicial proceedings. Motions to reopen or reconsider shall

state whether the validity of the exclusion, deportation, or removal

order has been or is the subject of any judicial proceeding and, if so,

the nature and date thereof, the court in which such proceeding took

place or is pending, and its result or status. In any case in which an

exclusion, deportation, or removal order is in effect, any motion to

reopen or reconsider such order shall include a statement by or on

behalf of the moving party declaring whether the subject of the order

is also the subject of any pending criminal proceeding under the Act,

and, if so, the current status of the proceeding. If a motion to reopen

or reconsider seeks discretionary relief, the motion shall include a

statement by or on behalf of the moving party declaring whether the

alien for whose relief the motion is being filed is subject to any

pending criminal prosecution and, if so, the nature and current status

of that prosecution.

(f) Stay of deportation. Except where a motion is filed pursuant to

the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the

filing of a motion to reopen or a motion to reconsider shall not stay

the execution of any decision made in the case. Execution of such

decision shall proceed unless a stay of execution is specifically

granted by the Board, the Immigration Judge, or an authorized officer

of the Service.

* * * * *

Subpart B--Immigration Court

b. In Part 3, the heading of Subpart B is revised as set forth

above.

7. Section 3.9 is revised to read as follows:

Sec. 3.9 Chief Immigration Judge.

The Chief Immigration Judge shall be responsible for the general

supervision, direction, and scheduling of the Immigration Judges in the

conduct of the various programs assigned to them. The Chief Immigration

Judge shall be assisted by Deputy Chief Immigration Judges and

Assistant Chief Immigration Judges in the performance of his or her

duties. These shall include, but are not limited to:

(a) Establishment of operational policies; and

(b) Evaluation of the performance of Immigration Courts, making

appropriate reports and inspections, and taking corrective action where

indicated.

8. Section 3.10 is revised to read as follows:

Sec. 3.10 Immigration Judges.

Immigration Judges, as defined in 8 CFR part 1, shall exercise the

powers and duties in this chapter regarding the conduct of exclusion,

deportation, removal, and asylum proceedings and such other proceedings

which the Attorney General may assign them to conduct.

9. Section 3.11 is revised to read as follows:

Sec. 3.11 Administrative control Immigration Courts.

An administrative control Immigration Court is one that creates and

maintains Records of Proceedings for Immigration Courts within an

assigned geographical area. All documents and correspondence pertaining

to a Record of Proceeding shall be filed with the Immigration Court

having administrative control over that Record of Proceeding and shall

not be filed with any other Immigration Court. A list of the

administrative control Immigration Courts with their assigned

geographical areas will be made available to the public at any

Immigration Court.

Subpart C--Immigration Court--Rules of Procedure

10. In part 3, the heading of Subpart C is revised as set forth

above.

11. Section 3.12 is amended by revising the last sentence, and

adding a new sentence at the end of the section, to read as follows:

Sec. 3.12 Scope of rules.

* * * Except where specifically stated, these rules apply to

matters before Immigration Judges, including, but not limited to,

deportation, exclusion, removal, bond, rescission, departure control,

and asylum proceedings. The sole procedures for review of credible fear

determinations by Immigration Judges are provided for in Sec. 3.42.

12. Section 3.13 is revised to read as follows:

Sec. 3.13 Definitions.

As used in this subpart:

Administrative control means custodial responsibility for the

Record of Proceeding as specified in Sec. 3.11.

Charging document means the written instrument which initiates a

proceeding before an Immigration Judge. For proceedings initiated prior

to April 1, 1997, these documents include an Order to Show Cause, a

Notice to Applicant for Admission Detained for Hearing before

Immigration Judge, and a Notice of Intention to Rescind and Request for

Hearing by Alien. For proceedings initiated after April 1, 1997, these

documents include a Notice to Appear, a Notice of Referral to

Immigration Judge, and a Notice of Intention to Rescind and Request for

Hearing by Alien.

Filing means the actual receipt of a document by the appropriate

Immigration Court.

Service means physically presenting or mailing a document to the

appropriate party or parties; except that an Order to Show Cause or

Notice of Deportation Hearing shall be served in person to the alien,

or by certified mail to the alien or the alien's attorney and a Notice

to Appear or Notice of Removal Hearing shall be served to the alien in

person, or if personal service is not practicable, shall be served by

regular mail to the alien or the alien's attorney of record.

13. Section Sec. 3.14 is amended by:

a. Revising paragraph (a), and by

b. Adding a new paragraph (c) to read as follows:

Sec. 3.14 Jurisdiction and commencement of proceedings.

(a) Jurisdiction vests, and proceedings before an Immigration Judge

commence, when a charging document is filed with the Immigration Court

by the Service. The charging document must include a certificate

showing service on the

[[Page 457]]

opposing party pursuant to Sec. 3.32 which indicates the Immigration

Court in which the charging document is filed. However, no charging

document is required to be filed with the Immigration Court to commence

bond proceedings pursuant to Secs. 3.19, 236.1(d) and 240.2(b) of this

chapter or credible fear determinations pursuant to Sec. 208.30 of this

chapter.

* * * * *

(c) Immigration Judges have jurisdiction to administer the oath of

allegiance in administrative naturalization ceremonies conducted by the

Service in accordance with Sec. 337.2(b) of this chapter.

14. Section 3.15 is amended by:

a. Revising the section heading;

b. Amending paragraph (b) introductory text and paragraph (b)(6),

by adding the phrase ``and Notice to Appear'' immediately after the

phrase ``Order to Show Cause'';

c. Redesignating paragraph (c) as (d);

d. Adding a new paragraph (c); and by

e. Revising newly redesignated paragraph (d), to read as follows:

Sec. 3.15 Contents of the order to show cause and notice to appear and

notification of change of address.

* * * * *

(c) Contents of the Notice to Appear for Removal Proceedings. In

the Notice to Appear for removal proceedings, the Service shall provide

the following administrative information to the Immigration Court.

Failure to provide any of these items shall not be construed as

affording the alien any substantive or procedural rights.

(1) The alien's names and any known aliases;

(2) The alien's address;

(3) The alien's registration number, with any lead alien

registration number with which the alien is associated;

(4) The alien's alleged nationality and citizenship; and

(5) The language that the alien understands.

(d) Address and telephone number. (1) If the alien's address is not

provided on the Order to Show Cause or Notice to Appear, of if the

address on the Order to Show Cause or Notice to Appear is incorrect,

the alien must provide to the Immigration Court where the charging

document has been filed, within five days of service of that document,

a written notice of an address and telephone number at which the alien

can be contacted. The alien may satisfy this requirement by completing

and filing Form EOIR-33.

(2) Within five days of any change of address, the alien must

provide written notice of the change of address on Form EOIR-33 to the

Immigration Court where the charging document has been filed, or if

venue has been changed, to the Immigration Court to which venue has

been changed.

Sec. 3.16 [Amended]

15. Section 3.16(b) is amended by revising the term ``respondent/

applicant'' to read ``alien''.

Sec. 3.17 [Amended]

16. Section 3.17(a) is amended in the first sentence by revising

the term ``respondent/applicant'' to read ``alien'', and by revising

the phrase ``the appropriate EOIR form'' to read ``Form EOIR-28''.

17. Section 3.18 is revised to read as follows:

Sec. 3.18 Scheduling of cases.

(a) The Immigration Court shall be responsible for scheduling cases

and providing notice to the government and the alien of the time,

place, and date of hearings.

(b) In removal proceedings pursuant to section 240 of the Act, the

Service shall provide in the Notice to Appear, the time, place and date

of the initial removal hearing, where practicable. If that information

is not contained in the Notice to Appear, the Immigration Court shall

be responsible for scheduling the initial removal hearing and providing

notice to the government and the alien of the time, place, and date of

hearing. In the case of any change or postponement in the time and

place of such proceeding, the Immigration Court shall provide written

notice to the alien specifying the new time and place of the proceeding

and the consequences under section 240(b)(5) of the Act of failing,

except under exceptional circumstances as defined in section 240(e)(1)

of the Act, to attend such proceeding. No such notice shall be required

for an alien not in detention if the alien has failed to provide the

address required in section 239(a)(1)(F) of the Act.

Sec. 3.19 [Amended]

18. Section 3.19(a) is amended by revising the reference to ``part

242 of this chapter'' to read ``8 CFR part 236'' wherever it appears in

the paragraph.

19. Section 3.19(d) is amended in the first sentence by adding the

term ``or removal'' immediately after the word ``deportation''.

20. Section 3.19 is amended by removing paragraph (h).

21. In Sec. 3.20, paragraph (a) is revised to read as follows:

Sec. 3.20 Change of venue.

(a) Venue shall lie at the Immigration Court where jurisdiction

vests pursuant to Sec. 3.14.

* * * * *

22. Section 3.23 is amended by revising the section heading and

paragraph (b) to read as follows:

Sec. 3.23 Reopening or Reconsideration before the Immigration Court.

* * * * *

(b) Before the Immigration Court. (1) In general. An Immigration

Judge may upon his or her own motion at any time, or upon motion of the

Service or the alien, reopen or reconsider any case in which he or she

has made a decision, unless jurisdiction is vested with the Board of

Immigration Appeals. Subject to the exceptions in this paragraph and

paragraph (b)(4) of this section, a party may file only one motion to

reconsider and one motion to reopen proceedings. A motion to reconsider

must be filed within 30 days of the date of entry of a final

administrative order of removal, deportation, or exclusion. A motion to

reopen must be filed within 90 days of the date of entry of a final

administrative order of removal, deportation, or exclusion. A motion to

reopen or to reconsider shall not be made by or on behalf of a person

who is the subject of removal, deportation, or exclusion proceedings

subsequent to his or her departure from the United States. The time and

numerical limitations set forth in this paragraph do not apply to

motions by the Service in removal proceedings pursuant to section 240

of the Act, or to motions by the Service in exclusion or deportation

proceedings, when the basis of the motion is fraud in the original

proceeding or a crime that would support termination of asylum in

accordance with Sec. 208.22(f) of this chapter.

(i) Form and contents of the motion. The motion shall be in writing

and signed by the affected party or the attorney or representative of

record, if any. The motion and any submission made in conjunction with

it must be in English or accompanied by a certified English

translation. Motions to reopen or reconsider shall state whether the

validity of the exclusion, deportation, or removal order has been or is

the subject of any judicial proceeding and, if so, the nature and date

thereof, the court in which such proceeding took place or is pending,

and its result or status. In any case in which an exclusion,

deportation, or removal order is in effect, any motion to reopen or

reconsider such order shall include a statement by or on behalf of the

moving party declaring whether the subject of the order is also the

subject

[[Page 458]]

of any pending criminal proceeding under the Act, and, if so, the

current status of that proceeding.

(ii) Filing. Motions to reopen or reconsider a decision of an

Immigration Judge must be filed with the Immigration Court having

administrative control over the Record of Proceeding. A motion to

reopen or a motion to reconsider shall include a certificate showing

service on the opposing party of the motion and all attachments. If the

moving party, other than the Service, is represented, a Form EOIR-28,

Notice of Appearance as Attorney or Representative Before an

Immigration Judge must be filed with the motion. The motion must be

filed in duplicate with the Immigration Court, accompanied by a fee

receipt.

(iii) Assignment to an Immigration Judge. If the Immigration Judge

is unavailable or unable to adjudicate the motion to reopen or

reconsider, the Chief Immigration Judge or his or her delegate shall

reassign such motion to another Immigration Judge.

(iv) Replies to motions; decision. The Immigration Judge may set

and extend time limits for replies to motions to reopen or reconsider.

A motion shall be deemed unopposed unless timely response is made. The

decision to grant or deny a motion to reopen or a motion to reconsider

is within the discretion of the Immigration Judge.

(v) Stays. Except in cases involving in absentia orders, the filing

of a motion to reopen or a motion to reconsider shall not stay the

execution of any decision made in the case. Execution of such decision

shall proceed unless a stay of execution is specifically granted by the

Immigration Judge, the Board, or an authorized officer of the Service.

(2) Motion to reconsider. A motion to reconsider shall state the

reasons for the motion by specifying the errors of fact or law in the

Immigration Judge's prior decision and shall be supported by pertinent

authority. Such motion may not seek reconsideration of a decision

denying previous motion to reconsider.

(3) Motion to reopen. A motion to reopen proceedings shall state

the new facts that will be proven at a hearing to be held if the motion

is granted and shall be supported by affidavits and other evidentiary

material. Any motion to reopen for the purpose of acting on an

application for relief must be accompanied by the appropriate

application for relief and all supporting documents. A motion to reopen

will not be granted unless the Immigration Judge is satisfied that

evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing. A

motion to reopen for the purpose of providing the alien an opportunity

to apply for any form of discretionary relief will not be granted if it

appears that the alien's right to apply for such relief was fully

explained to him or her by the Immigration Judge and an opportunity to

apply therefore was afforded at the hearing, unless the relief is

sought on the basis of circumstances that have arisen subsequent to the

hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen

proceedings for consideration or further consideration of an

application for relief under section 240A(a) (cancellation of removal

for certain permanent residents) or 240A(b) (cancellation of removal

and adjustment of status for certain nonpermanent residents) may be

granted only if the alien demonstrates that he or she was statutorily

eligible for such relief prior to the service of a notice top appear,

or prior to the commission of an offense referred to in section

212(a)(2) of the Act that renders the alien inadmissible or removable

under sections 237(a)(2) of the Act or (a)(4), whichever is earliest.

The Immigration Judge has discretion to deny a motion to reopen even if

the moving party has established a prima facie case for relief.

(4) Exceptions to filing deadlines.

(i) Asylum. The time and numerical limitations set forth in

paragraph (b)(1) of this section shall not apply if the basis of the

motion is to apply for relief under section 208 or 241(b)(3) of the Act

and is based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such

evidence is material and was not available and would not have been

discovered or presented at the previous proceeding. The filing of a

motion to reopen under this section shall not automatically stay the

removal of the alien. However, the alien many request a stay and, if

granted by the Immigration Judge, the alien shall not be removed

pending disposition of the motion by the Immigration Judge. If the

original asylum application was denied based upon a finding that it was

frivolous, then the alien is ineligible to file either a motion to

reopen or reconsider, or for a stay of removal.

(ii) Order entered in absentia in removal proceedings. An order of

removal entered in absentia pursuant to section 240(b)(5) of the Act

may be rescinded only upon a motion to reopen filed within 180 days

after the date of the order of removal, if the alien demonstrates that

the failure to appear was because of ``exceptional circumstances'' as

defined in section 240(e)(1) of the Act. An order entered in absentia

pursuant to section 240(b)(5) may be rescinded upon a motion to reopen

filed at any time if the alien demonstrates that he or she did not

receive notice in accordance with sections 239(a) (1) or (2) of the

Act, or the alien demonstrates that he or she was in Federal or state

custody and the failure to appear was through no fault of the alien.

However, in accordance with section 240(b)(5)(B) of the Act, no written

notice of a change in time or place of proceeding small be required if

the alien has failed to provide the address required under section

239(a)(1)(F) of the Act. The filing of a motion to reopen under this

section shall stay the removal of the alien pending disposition of the

motion by the Immigration Judge. An alien may file only one motion

pursuant to this paragraph.

(iii) Order entered in absentia in deportation or exclusion

proceedings. (A) An order entered in absentia in deportation

proceedings may be rescinded only a motion to reopen filed:

(1) Within 180 days after the date of the order of deportation if

the alien demonstrates that the failure to appear was because of

``exceptional circumstances'' beyond the control of the alien (e.g.,

serious illness of the alien or serious illness or death of an

immediate relative of the alien, but not including less compelling

circumstances); or

(2) At any time if the alien demonstrates that he or she did not

receive notice or if the alien demonstrates that he or she was in

federal or state custody and the failure to appear was through no fault

of the alien.

(B) A motion to reopen exclusion hearings on the basis that the

Immigration Judge improperly entered an order of exclusion in absentia

must be supported by evidence that the alien had reasonable cause for

his failure to appear.

(C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A)

of this section shall stay the deportation of the alien pending

decision on the motion and the adjudication of any properly filed

administrative appeal.

(D) The time and numerical limitations set forth in paragraph

(b)(1) of this section shall not apply to a motion to reopen filed

pursuant to the provisions of paragraphs (b)(4)(iii)(A)(1) of this

section.

(iv) Jointly filed motions. The time and numerical limitations set

forth in subsection (b)(1) of this section shall not apply to a motion

to reopen agreed upon by all parties and jointly filed.

[[Page 459]]

23. Section 3.25 is revised to read as follows:

Sec. 3.25 Form of the proceeding.

(a) Waiver of presence of the parties. The Immigration Judge may,

for good cause, and consistent with section 240(b) of the Act, waive

the presence of the alien at a hearing when the alien is represented or

when the alien is a minor child at least one of whose parents or whose

legal guardian is present. When it is impracticable by reason of an

alien's mental incompetency for the alien to be present, the presence

of the alien may be waived provided that the alien is represented at

the hearing by an attorney or legal representative, a near relative,

legal guardian, or friend.

(b) Stipulated request for order, wavier of hearing. An Immigration

Judge may enter an order of deportation, exclusion or removal

stipulated to by the alien (or the alien's representative) and the

Service. The Immigration Judge may enter such an order without a

hearing and in the absence of the parties based on a review of the

charging document, the written stipulation, and supporting documents,

if any. If the alien is unrepresented, the Immigration Judge must

determine that the alien's waiver is voluntary, knowing, and

intelligent. The stipulated request and required waivers shall be

signed on behalf of the government and by the alien and his or her

attorney or representative, if any. The attorney or representative

shall file a Notice of Appearance in accordance with Sec. 3.16(b). A

stipulated order shall constitute a conclusive determination of the

alien's deportability or removability from the United States. The

stipulation shall include:

(1) An admission that all factual allegations contained in the

charging document are true and correct as written;

(2) A concession of deportability or inadmissibility as charged;

(3) A statement that the alien makes no application for relief

under the Act;

(4) A designation of a country for deportation or removal under

section 241(b)(2)(A)(i) of the Act;

(5) A concession to the introduction of the written stipulation of

the alien as an exhibit to the Record of Proceeding;

(6) A statement that the alien understands the consequences of the

stipulated request and that the alien enters the request voluntarily,

knowingly, and intelligently;

(7) A statement that the alien will accept a written order for his

or her deportation, exclusion or removal as a final disposition of the

proceedings; and

(8) A waiver of appeal of the written order of deportation or

removal.

(c) Telephonic or video hearings. An Immigration Judge may conduct

hearings through video conference to the same extent as he or she may

conduct hearings in person. An Immigration Judge may also conduct a

hearing through a telephone conference, but an evidentiary hearing on

the merits may only be conducted through a telephone conference with

the consent of the alien involved after the alien has been advised of

the right to proceed in person or, where available, through a video

conference, except that credible fear determinations may be reviewed by

the Immigration Judge through a telephone conference without the

consent of the alien.

24. Section 3.26 is amended by revising paragraph (c) and adding a

new paragraph (d) to read as follows:

Sec. 3.26 In absentia hearings.

* * * * *

(c) In any removal proceeding before an Immigration Judge in which

the alien fails to appear, the Immigration Judge shall order the alien

removed in absentia if:

(1) The Service establishes by clear, unequivocal, and convincing

evidence that the alien is removable; and

(2) The Service establishes by clear, unequivocal, and convincing

evidence that written notice of the time and place of proceedings and

written notice of the consequences of failure to appear were provided

to the alien.

(d) Written notice to the alien shall be considered sufficient for

purposes of this section if it was provided at the most recent address

provided by the alien. If the respondent fails to provide his or her

address as required under Sec. 3.15(d), no written notice shall be

required for an Immigration Judge to proceed with an in absentia

hearing. This paragraph shall not apply in the event that the

Immigration Judge waives the appearance of an alien under Sec. 3.25.

25. Section 3.27 is amended by revising paragraph (c) to read as

follows:

Sec. 3.27 Public access to hearings.

* * * * *

(c) In any proceeding before an Immigration Judge concerning an

abused alien spouse, the hearing and the Record of Proceeding shall be

closed to the public unless the abused spouse agrees that the hearing

and the Record of Proceeding shall be open to the public. In any

proceeding before an Immigration Judge concerning an abused alien

child, the hearing and the Record of Proceeding shall be closed to the

public.

26. Section 3.30 is revised to read as follows:

Sec. 3.30 Additional charges in deportation or removal hearings.

At any time during deportation or removal proceedings, additional

or substituted charges of deportability and/or factual allegations may

be lodged by the Service in writing. The alien shall be served with a

copy of these additional charges and/or allegations and the Immigration

Judge shall read them to the alien. The Immigration Judge shall advise

the alien, if he or she is not represented by counsel, that the alien

may be so represented. The alien may be given a reasonable continuance

to respond to the additional factual allegations and charges.

Thereafter, the provision of Sec. 240.10(b) of this chapter relating to

pleading shall apply to the additional factual allegations and charges.

27. Section 3.35 is revised to read as follows:

Sec. 3.35 Depositions and Subpoenas.

(a) Depositions. If an Immigration Judge is satisfied that a

witness is not reasonably available at the place of hearing and that

said witness' testimony or other evidence is essential, the Immigration

Judge may order the taking of deposition either at his or her own

instance or upon application of a party. Such order shall designate the

official by whom the deposition shall be taken, may prescribe and limit

the content, scope, or manner of taking the deposition, and may direct

the production of documentary evidence.

(b) Subpoenas issued subsequent to commencement of proceedings. (1)

General. In any proceeding before an Immigration Judge, other than

under 8 CFR part 335, the Immigration Judge shall have exclusive

jurisdiction to issue subpoenas requiring the attendance of witnesses

or for the production of books, papers and other documentary evidence,

or both. An Immigration Judge may issue a subpoena upon his or her own

volition or upon application of the Service or the alien.

(2) Application for subpoena. A party applying for a subpoena shall

be required, as a condition precedent to its issuance, to state in

writing or at the proceeding, what he or she expects to prove by such

witnesses or documentary evidence, and to show affirmatively that he or

she has made diligent effort, without success, to produce the same.

(3) Issuance of subpoena. Upon being satisfied that a witness will

not appear and testify or produce documentary evidence and that the

witness' evidence

[[Page 460]]

is essential, the Immigration Judge shall issue a subpoena. The

subpoena shall state the title of the proceeding and shall command the

person to whom it is directed to attend and to give testimony at a time

and place specified. The subpoena may also command the person to whom

it is directed to produce the books, papers, or documents specified in

the subpoena.

(4) Appearance of witness. If the witness is at a distance of more

than 100 miles from the place of the proceeding, the subpoena shall

provide for the witness' appearance at the Immigration Court nearest to

the witness to respond to oral or written interrogatories, unless there

is no objection by any party to the witness' appearance at the

proceeding.

(5) Service. A subpoena issued under this section may be served by

any person over 18 years of age not a party to the case.

(6) Invoking aid of court. If a witness neglects or refuses to

appear and testify as directed by the subpoena served upon him or her

in accordance with the provisions of this section, the Immigration

Judge issuing the subpoena shall request the United States Attorney for

the district in which the subpoena was issued to report such neglect or

refusal to the United States District Court and to request such court

to issue an order requiring the witness to appear and testify and to

produce the books, papers or documents designated in the subpoena.

28. In Subpart C, a new Sec. 3.42 is added to read as follows:

Sec. 3.42 Review of credible fear determination.

(a) Referral. Jurisdiction for an Immigration Judge to review an

adverse credible fear finding by an asylum officer pursuant to section

235(b)(1)(B) of the Act shall commence with the filing by the Service

to Form I-863, Notice of Referral to Immigration Judge. The Service

shall also file with the notice of referral a copy of the written

record of determination as defined in section 235(b)(1)(B)(iii)(II) of

the Act, including a copy of the alien's written request for review, if

any.

(b) Record of proceeding. The Immigration Court shall create a

Record of Proceeding for a review of an adverse credible fear

determination. This record shall be merged with any later proceeding

pursuant to section 240 of the Act involving the same alien.

(c) Procedures and evidence. The Immigration Judge may receive into

evidence any oral or written statement which is material and relevant

to any issue in the review. The testimony of the alien shall be under

oath or affirmation administered by the Immigration Judge. If an

interpreter is necessary, one will be provided by the Immigration

Court. The Immigration Judge shall determine whether the review shall

be in person, or through telephonic or video connection (where

available). The alien may consult with a person or persons of the

alien's choosing prior to the review.

(d) Standard of review. The Immigration Judge shall make a de novo

determination as to whether there is a significant possibility, taking

into account the credibility of the statements made by the alien in

support of the alien's claim and such other facts as are known to the

Immigration Judge, that the alien could establish eligibility for

asylum under section 208 of the Act.

(e) Timing. The Immigration Judge shall conclude the review to the

maximum extent practicable within 24 hours, but in no case later than 7

days after the determination of the asylum officer.

(f) Decision. If an Immigration Judge determines that an alien has

a credible fear of persecution, the Immigration Judge shall vacate the

order entered pursuant to section 235(b)(1)(B)(iii)(I) of the Act.

Subsequent to the order being vacated, the Service shall issue and file

Form I-862, Notice to Appear, with the Immigration Court to commence

removal proceedings. The alien shall have the opportunity to apply for

asylum in the course of removal proceedings pursuant to section 240 of

the Act. If an Immigration Judge determines that an alien does not have

a credible fear of persecution, the Immigration Judge shall affirm the

asylum officer's determination and remand the case to the Service for

execution of the removal order entered pursuant to section

235(b)(1)(B)(iii)(I) of the Act. No appeal shall lie from a review of

an adverse credible fear determination made by an Immigration Judge.

(g) Custody. An Immigration Judge shall have no authority to review

an alien's custody status in the course of a review of an adverse

credible fear determination made by the Service.

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

SERVICE RECORDS

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

follows:

Authority: 5 U.S.C. 552, 552(a); 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.

30. In Sec. 1301, paragraph (g)(3)(ii) is revised to read as

follows:

Sec. 103.1 Delegations of authority.

* * * * *

(g) * * *

(3) * * *

(ii) Asylum Officers. Asylum officers constitute a professional

corps of officers who serve under the supervision and direction of the

Director of International Affairs and shall be specially trained as

required in Sec. 208.1(b) of this chapter. Asylum officers are

delegated the authority to hear and adjudicate credible fear of

persecution determinations under section 235(b)(1)(B) of the Act and

applications for asylum and for withholding of removal, as provided

under 8 CFR part 208.

* * * * *

Sec. 103.5 [Amended]

31. Section 103.5 is amended by:

a. Removing paragraphs (a)(1)(iii)(B);

b. Redesignating paragraphs (a)(1)(iii) (C) through (F) as

paragraphs (a)(1)(iii) (B) through (E), respectively; and

c. Removing paragraph (a)(5)(iii).

32. In Sec. 103.5a, paragraph (c)(1) is revised to read as follows:

Sec. 103.5a Service of notification, decisions, and other papers by

the Service.

* * * * *

(c) * * *

(1) Generally. In any proceeding which is initiated by the Service,

with proposed adverse effect, service of the initiating notice and of

notice of any decision by a Service officer shall be accomplished by

personal service, except as provided in section 239 of the Act.

* * * * *

33. In Sec. 103.6, paragraph (a) is revised to read as follows:

Sec. 103.6 Surety bonds.

(a) Posting of surety bonds.--(1) Extension agreements; consent of

surety; collateral security. All surety bonds posted in immigration

cases shall be executed on Form I-352, Immigration Bond, a copy of

which, and any rider attached thereto, shall be furnished the obligor.

A district director is authorized to approve a bond, a formal agreement

to extension of liability of surety, a request for delivery of

collateral security to a duly appointed and undischarged administrator

or executor of the estate of a deceased depositor, and a power of

attorney executed on Form I-312, Designation of Attorney in Fact. All

other matters relating to bonds, including a power of attorney not

[[Page 461]]

executed on Form I-312 and a request for delivery of collateral

security to other than the depositor or his or her approved attorney in

fact, shall be forwarded to the regional director for approval.

(2) Bond riders.--(i) General. Bond riders shall be prepared on

Form I-351, Bond Riders, and attached to Form I-352. If a condition to

be included in a bond is not on Form I-351, a rider containing the

condition shall be executed.

* * * * *

Sec. 103.7 [Amended]

34. Section 103.7(b)(1) is amended by removing the entry to ``Form

I-444''.

PART 204--IMMIGRANT PETITIONS

35. The authority citation for part 204 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,

1255; 8 CFR part 2.

36. Section 204.2 is amended by:

a. Revising paragraph (a)(1)(iii) introductory text;

b. Removing paragraphs (a)(1)(iii) (A) through (C); and

c. Redesignating paragraphs (a)(1)(iii) (D) through (I) as

paragraphs (a)(1)(iii) (A) through (F) respectively, to read as

follows:

Sec. 204.2 Petitions for relatives, widows, and widowers, and abused

spouses and children.

* * * * *

(a) * * *

(1) * * *

(iii) Marriage during proceedings--general prohibition against

approval of visa petition. A visa petition filed on behalf of an alien

by a United States citizen or a lawful permanent resident spouse shall

not be approved if the marriage creating the relationship occurred on

or after November 10, 1986, and while the alien was in exclusion,

deportation, or removal proceedings, or judicial proceedings relating

thereto. Determination of commencement and termination of proceedings

and exemptions shall be in accordance with Sec. 245.1(c)(8) of this

chapter.

* * * * *

PART 207--ADMISSION OF REFUGEES

37. The authority citation for part 207 is revised to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR

part 2.

38. Section 207.1 is amended by removing paragraph (e), and by

revising paragraph (a) to read as follows:

Sec. 207.1 Eligibility.

(a) Filing jurisdiction. Any alien who believes he or she is a

refugee as defined in section 101(a)(42) of the Act, and is included in

a refugee group identified in section 207(a) of the Act, may apply for

admission to the United States by filing an application in accordance

with Sec. 207.2 with the Service office having jurisdiction over the

area where the applicant is located. In those areas too distant from a

Service office, the application may be filed at a designated United

States consular office.

* * * * *

39. Section 207.3 is revised to read as follows:

Sec. 207.3 Waivers of inadmissibility.

(a) Authority. Section 207(c)(3) of the Act sets forth grounds of

inadmissibility under section 212(a) of the Act which are not

applicable and those which may be waived in the case of an otherwise

qualified refugee and the conditions under which such waivers may be

approved. Officers in charge of overseas offices are delegated

authority to initiate the necessary investigations to establish the

facts in each waiver application pending before them and to approve or

deny such waivers.

(b) Filing requirements. The applicant for a waiver must submit

Form I-602, Application by Refugee for Waiver of Grounds of

Inadmissibility, with the Service office processing his or her case.

The burden is on the applicant to show that the waiver should be

granted based upon humanitarian grounds, family unity, or the public

interest. The applicant shall be notified in writing of the decision,

including the reasons for denial, if the application is denied. There

is no appeal from such decision.

Sec. 207.8 [Amended]

40. Section 207.8 is amended in the last sentence by revising the

reference to ``sections 235, 236, and 237'' to read ``sections 235,

240, and 241''.

41. Part 208 is revised to read as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

Subpart A--Asylum and Withholding of Removal

Sec.

208.1 General.

208.2 Jurisdiction.

208.3 Form of application.

208.4 Filing the application.

208.5 Special duties toward aliens in custody of the Service.

208.6 Disclosure to third parties.

208.7 Employment authorization.

208.8 Limitations on travel outside the United States.

208.9 Procedure for interview before an asylum officer.

208.10 Failure to appear at an interview before an asylum officer.

208.11 Comments from the Department of State.

208.12 Reliance on information compiled by other sources.

208.13 Establishing asylum eligibility.

208.14 Approval, denial, or referral of application.

208.15 Definition of ``firm resettlement.''

208.16 Withholding of removal.

208.17 Decisions.

208.18 Determining if an asylum application is frivolous.

208.19 [Reserved]

208.20 Effect on exclusion, deportation, and removal proceedings.

208.21 Restoration of status.

208.22 Termination of asylum or withholding or removal or

deportation.

208.23-29 [Reserved]

Subpart B--Credible Fear of Persecution

208.30 Credible fear determinations involving stowaways and

applicants for admission found inadmissible pursuant to section

212(a)(6)(C) or 212(a)(7) of the Act.

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

Subpart A--Asylum and Withholding of Removal

Sec. 208.1 General.

(a) Applicability. Unless otherwise provided herein, this subpart

shall apply to all applications for asylum under section 208 of the Act

or for withholding of deportation or withholding of removal under

section 241(b)(3) of the Act, whether before an asylum officer or an

immigration judge, regardless of the date of filing. For purposes of

this chapter, withholding of removal shall also mean withholding of

deportation under section 243(h) of the Act, as it appeared prior to

April 1, 1997, except as provided in Sec. 208.16(c) of this chapter.

Such applications are hereinafter referred to generically as asylum

applications. The provisions of this part shall not affect the finality

or validity of any decision made by a district director, an immigration

judge, or the Board of Immigration Appeals in any such case prior to

April 1, 1997. No asylum application that was filed with a district

director, asylum officer or immigration judge prior to April 1, 1997,

may be reopened or otherwise reconsidered under the provisions of this

part except by motion granted in the exercise of discretion by the

Board of Immigration Appeals, an immigration judge, or an asylum

officer for proper cause shown. Motions to reopen or reconsider must

meet the requirements of sections 240(c)(5) and (c)(6) of the Act, and

8 CFR parts 3 and 103, where

[[Page 462]]

applicable. The provisions of this part relating to a person convicted

of an aggravated felony, as defined in section 101(a)(43) of the Act,

shall apply to asylum applications that are filed on or after November

29, 1990.

(b) Training of asylum officers. The Director of International

Affairs shall ensure that asylum officers receive special training in

international human rights law, nonadversarial interview techniques,

and other relevant national and international refugee laws and

principles. The Director of International Affairs shall also, in

cooperation with the Department of State and other appropriate sources,

compile and disseminate to asylum officers information concerning the

persecution of persons in other countries on account of race, religion,

nationality, membership in a particular social group, or political

opinion, as well as other information relevant to asylum

determinations, and shall maintain a documentation center with

information on human rights conditions.

Sec. 208.2 Jurisdiction.

(a) Office of International Affairs. Except as provided in

paragraph (b) of this section, the Office of International Affairs

shall have initial jurisdiction over an asylum application filed by, or

a credible fear determination pertaining to, an alien physically

present in the United States or seeking admission at a port-of-entry.

An application that is complete within the meaning of Sec. 208.3(c)(3)

shall be either adjudicated or referred by asylum officers under this

part in accordance with Sec. 208.14. An application that is incomplete

within the meaning of Sec. 208.3(c)(3) shall be returned to the

applicant. Except as provided in Sec. 208.16(a), an asylum officer

shall not decide whether an alien is entitled to withholding of removal

under section 241(b)(3) of the Act.

(b) Immigration Court. (1) Certain aliens not entitled to

proceedings under section 240 of the Act. After Form I-863, Notice of

Referral to Immigration Judge, has been filed with the Immigration

Court, an immigration judge shall have exclusive jurisdiction over any

asylum application filed on or after April 1, 1997, by:

(i) An alien crewman who:

(A) Is an applicant for a landing permit;

(B) Has been refused permission to land under section 252 of the

Act; or

(C) Has been granted permission to land under section 252 of the

Act, regardless of whether the alien has remained in the United States

longer than authorized;

(ii) An alien stowaway who has been found to have a credible fear

of persecution pursuant to the procedure set forth in Subpart B of this

part;

(iii) An alien who is an applicant for admission pursuant to the

Visa Waiver Pilot Program under section 217 of the Act;

(iv) An alien who was admitted to the United States pursuant to the

Visa Waiver Pilot Program under section 217 of the Act and has remained

longer than authorized or has otherwise violated his or her immigration

status;

(v) An alien who has been ordered removed under section 235(c) of

the Act; or

(vi) An alien who is an applicant for admission, or has been

admitted, as an alien classified under section 101(a)(15)(S) of the

Act.

(2) Rules of procedure. Proceeding falling under the jurisdiction

of the immigration judge pursuant to paragraph (b)(1) of this section

shall be conducted in accordance with the same rules of procedure as

proceedings conducted under 8 CFR part 240, except the scope of review

shall be limited to a determination of whether the alien is eligible

for asylum or withholding of removal and whether asylum shall be

granted in the exercise of discretion. During such proceeding all

parties are prohibited from raising or considering any other issues,

including but not limited to issues of admissibility, removability,

eligibility for waivers, and eligibility for any form of relief other

than asylum or withholding of removal.

(3) other aliens. Immigration judges shall have exclusive

jurisdiction over asylum applications filed by an alien who has been

served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant

for Admission Detained for a Hearing before an Immigration Judge; or

Form I-862, Notice to Appear, after a copy of the charging document has

been filed with the Immigration Court. Immigration judges shall also

have jurisdiction over any asylum applications filed prior to April 1,

1997, by alien crew members who have remained in the United States

longer than authorized, by applicants for admission under the Visa

Waiver Pilot Program, and by aliens who have been admitted to the

United States under the Visa Waiver Pilot Program.

Sec. 208.3 Form of application.

(a) An asylum applicant must file, in triplicate, Form I-589

together with any additional supporting material. The applicant's

spouse and children shall be listed on the application and may be

included in the request for asylum if they are in the United States.

One additional copy of the principal applicant's Form I-589 must be

submitted for each dependent included in the principal's application.

An application shall be accompanied by one completed fingerprint card,

Form FD-258, for every individual included in the application who is 14

years of age or older. The application also shall be accompanied by two

photographs of the applicant and of each dependent included in the

application.

(b) An asylum application shall be deemed to constitute at the same

time an application for withholding of removal, unless adjudicated in

deportation or exclusion proceedings commenced prior to April 1, 1997.

In such instances, the asylum application shall be deemed to constitute

an application for withholding of deportation under section 243(h) of

the Act, as that section existed prior to its amendment by Pub. L. 104-

208.

(c) Form I-589 shall be filed under the following conditions and

shall have the following consequences:

(1) Information provided on the application may be used as a basis

for the institution of or as evidence in removal proceedings, and in

deportation and exclusion proceedings where the application has been

filed on or after January 4, 1995, as well as to satisfy the Service's

burden of proof in such proceedings;

(2) The applicant and anyone other than a spouse, parent, son, or

daughter of the applicant 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 a aware of the

contents of the application. A person other than a relative specified

in this paragraph who assists the applicant in preparing the

application also must provide his or her full mailing address;

(3) An asylum application that does not include a response to each

of the questions contained in the Form I-589, is unsigned, or is

unaccompanied by the required materials specified in paragraph (a) of

this section is incomplete. The filling 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. An application that is incomplete shall be retuned by mail

to the applicant within 30 days of the receipt of the application by

the Service. If the Service has not mailed the incomplete application

back to the applicant within 30 days, it shall be deemed complete;

(4) Knowing placement of false information on the application may

[[Page 463]]

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; and

(5) Knowing filing of a frivolous application on or after April 1,

1997, so long as the applicant has received the notice required by

section 208(d)(4) of the Act, shall render the applicant permanently

ineligible for any benefits under the Act pursuant to Sec. 208.18.

Sec. 208.4 Filing the application.

Except as prohibited in paragraph (a) of this section, asylum

applications shall be filed in accordance with paragraph (b) of this

section.

(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits

certain aliens from filing for asylum on or after April 1, 1997, unless

the alien can demonstrate that the exceptions in section 208(a)(2)(D)

of the Act apply. For the purpose of making determinations under

section 208(a)(2) of the Act, the following rules shall apply:

(1) For the purpose of section 208(a)(2)(C) of the Act, an asylum

application has not been denied unless denied by an immigration judge

or the Board of Immigration Appeals;

(2) The term ``changed circumstances'' in section 208(a)(2)(D) of

the Act shall refer to circumstances materially affecting the

applicant's eligibility for asylum that have arisen:

(i) For the purpose of section 208(a)(2)(C) of the Act, since the

denial of the last asylum application by the alien. Changed

circumstances arising after the denial of the application but before

the alien's departure or removal from the United States shall only be

considered as part of a motion to reopen under section 240(c)(6) of the

Act and Secs. 3.2, 3.23 and 103.5 of this chapter; or

(ii) For the purpose of section 208(a)(2)(B) of the Act, since the

1-year period has expired; and

(3) The term ``extraordinary circumstances'' in section

208(a)(2)(D) of the Act shall refer to events or factors beyond the

alien's control that caused the failure to meet the 1-year deadline.

Such circumstances shall excuse the failure to file within the 1-year

period so long as the alien filed the application as soon after the

deadline as practicable given those circumstances.

(b) Filing location. (1) With the service center by mail. Except as

provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this

section, asylum applications 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.

(2) With the asylum office. Asylum applications shall be filed

directly with the asylum office having jurisdiction over the matter in

the case of an alien who has received the express consent of the

Director of Asylum to do so.

(3) With the immigration judge. Aslyum applications shall be filed

directly with the Immigration Court having jurisdiction over the case

in the following circumstances:

(i) During exclusion, deportation, or removal proceedings, with the

Immigration Court having jurisdiction over the port, district office,

or sector after service and filing of the appropriate charging

document.

(ii) After completion of exclusion, deportation, or removal

proceedings, and in conjunction with a motion to reopen pursuant to 8

CFR part 3 where applicable, with the Immigration Court having

jurisdiction over the prior proceeding. Any such motion must reasonably

explain the failure to request asylum prior to the completion of the

proceedings

(iii) In asylum proceedings pursuant to Sec. 208.2(b)(1) and after

the Notice of Referral to Immigration Judge has been served on the

alien and filed with the Immigration Court having jurisdiction over the

case.

(4) With the Board of Immigration Appeals. In conjunction with a

motion to remand or reopen pursuant to Secs. 3.2 and 3.8 of this

chapter where applicable, an initial asylum application shall be filed

with the Board of Immigration Appeals if jurisdiction over the

proceedings is vested in the Board of Immigration Appeals under 8 CFR

part 3. Any such motion must reasonably explain the failure to request

asylum prior to the completion of the proceedings.

(5) With the district director. In the case of any alien described

in Sec. 208.2(b)(1) and prior to the service on the alien of Form I-

863, any asylum application shall be submitted to the district director

having jurisdiction pursuant to 8 CFR part 103. The district director

shall forward such asylum application to the appropriate Immigration

Court with the Form I-863 being filed with that Immigration Court.

(c) Amending an application after filing. Upon request of the alien

and as a matter of discretion, the asylum officer or immigration judge

having jurisdiction may permit an asylum applicant to amend or

supplement the application, but any delay caused by such request shall

extend the period within which the application may not apply for

employment authorization in accordance with Sec. 208.7(a).

Sec. 208.5 Special duties toward aliens in custody of the Service.

(a) General. When an alien in the custody of the Service requests

asylum or withholding of removal or expresses a fear of persecution or

harm upon return to his or her country of origin or to agents thereof,

the Service shall make available the appropriate application forms and

shall provide the applicant with the information required by section

208(d)(4) of the Act, except in the case of an alien who is in custody

pending a credible fear of persecution determination under section

235(b)(1)(B) of the Act. Where possible, expedited consideration shall

be given to applications of detained aliens. Except as provided in

paragraph (c) of this section, such alien shall not be excluded,

deported, or removed before a decision is rendered on his or her asylum

application.

(b) Certain aliens aboard vessels. (1) If an alien crewman or alien

stowaway on board a vessel or other conveyance alleges, claims, or

otherwise makes known to an immigration inspector or other official

making an examination on the conveyance that he or she is unable or

unwilling to return to his or her country of nationality or last

habitual residence (if not a national of any country) because of

persecution or a fear of persecution in that country on account of

race, religion, nationality, membership in a particular social group,

or political opinion, the alien shall be promptly removed from the

conveyance. If the alien makes such fear known to an official while off

such conveyance, the alien shall not be returned to the conveyance but

shall be retained in or transferred to the custody of the Service.

(i) An alien stowaway will be referred to an asylum officer for a

credible fear determination under Sec. 208.30.

(ii) An alien crewman shall be provided the appropriate

applications forms and information required by section 208(d)(4) of the

Act and may then have 10 days within which to submit an asylum

application to the district director having jurisdiction over the port

of entry. The district director, pursuant to Sec. 208.4(b), shall serve

Form I-863 on the alien and immediately forward any such application to

the appropriate Immigration Court with a copy of the Form I-863 being

filed with that court.

(2) Pending adjudication of the application, and, in the case of a

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stowaway the credible fear determination and any review thereof, the

alien may be detained by the Service or otherwise paroled in accordance

with Sec. 212.5 of this chapter. However, pending the credible fear

determination, parole of an alien stowaway may be permitted only when

the Attorney General determines, in the exercise of discretion, that

parole is required to meet a medical emergency or is necessary for a

legitimate law enforcement objective.

(c) Exception to prohibition on removal. A motion to reopen or an

order to remand accompanied by an asylum application pursuant to

Sec. 208.4(b)(3)(iii) shall not stay execution of a final exclusion,

deportation, or removal order unless such stay is specifically granted

by the Board of Immigration Appeals or the immigration judge having

jurisdiction over the motion.

Sec. 208.6 Disclosure to third parties.

(a) Information contained in or pertaining to any asylum

application shall not be disclosed without the written consent of the

applicant, except as permitted by this section or at the discretion of

the Attorney General.

(b) The confidentiality of other records kept by the Service that

indicate that a specific alien has applied for asylum shall also be

protected from disclosure. The Service will coordinate with the

Department of State to ensure that the confidentially of these records

is maintained if they are transmitted to Department of State offices in

other countries.

(c) This section shall not apply to any disclosure to:

(1) Any United States Government official or contractor having a

need to examine information in connection with:

(i) The adjudication of asylum applications;

(ii) The defense of any legal action arising from the adjudication

of or failure to adjudicate the asylum application;

(iii) The defense of any legal action of which the asylum

application is a part; or

(iv) Any United States Government investigation concerning any

criminal or civil matter; or

(2) Any Federal, state, or local court in the United States

considering any legal action:

(i) Arising from the adjudication of or failure to adjudicate the

asylum application; or

(ii) Arising from the proceedings of which the asylum application

is a part.

Sec. 208.7 Employment authorization.

(a) Application and approval. (1) Subject to the restrictions

contained in sections 236(a) and 208(d) of the Act, an applicant for

asylum who is not an aggravated felon shall be eligible pursuant to

Secs. 274a.12(c)(8) and 274a.13(a) of this chapter to submit a Form I-

765, Application for Employment Authorization. The application shall be

submitted no earlier than 150 days after the date on which a complete

asylum application submitted in accordance with Secs. 208.3 and 208.4

has been received. If an asylum application has been returned as

incomplete in accordance with Sec. 208.3(c)(3), the 150-day period will

commence upon receipt by the Service of a complete asylum application.

An applicant whose asylum application 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. If an asylum

application is denied prior to a decision on the application for

employment authorization, the application for employment authorization

shall be denied. If the asylum application is not so denied, the

Service shall have 30 days from the date of filing of the Form I-765 to

grant or deny that application, except that no employment authorization

shall be issued to an asylum applicant prior to the expiration of the

180-day period following the filing of the asylum application filed on

or after April 1, 1997.

(2) Employment authorization pursuant to Sec. 274a.12(c)(8) of this

chapter may not be granted to an alien who fails to appear for a

scheduled interview before an asylum officer or a hearing before an

immigration judge, unless the applicant demonstrates that the failure

to appear was the result of exceptional circumstances.

(3) The time periods within which the alien may not apply for

employment authorization and within which the Service must respond to

any such application and within which the asylum application must be

adjudicated pursuant to section 208(d)(5)(A)(iii) of the Act 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) The provisions of paragraphs (a) (1) through (3) of this

section apply to applications for asylum filed on or after January 4,

1995.

(b) Renewal and termination. 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 completion of any administrative or judicial review.

(1) If the asylum application is denied by the asylum officer, the

employment authorization shall terminate at the expiration of the

employment authorization document or 60 days after the denial of

asylum, whichever is longer.

(2) If the application is denied by the immigration judge, the

Board of Immigration Appeals, or a Federal court, the employment

authorization terminates upon the expiration of the employment

authorization document, unless the applicant has filed an appropriate

request for administrative or judicial review.

(c) Supporting evidence for renewal of employment authorization. In

order for employment authorization to be renewed under this section,

the alien must provide the Service (in accordance with the instructions

on or attached to the employment authorization application) with a Form

I-765, the required fee (unless waived in accordance with Sec. 103.7(c)

of this chapter), and (if applicable) proof that he or she has

continued to pursue his or her asylum application before an immigration

judge or sought administrative or judicial review. For purposes of

employment authorization, pursuit of an asylum application is

established by presenting to the Service one of the following,

depending on the stage of the alien's immigration proceedings:

(1) If the alien's case is pending in proceedings before the

immigration judge, and the alien wishes to continue to pursue his or

her asylum application, a copy of any asylum denial, referral notice,

or charging document placing the alien in such proceedings;

(2) If the immigration judge has denied asylum, a copy of the

document issued by the Board of Immigration Appeals to show that a

timely appeal has been filed from a denial of the asylum application by

the immigration judge; or

(3) If the Board of Immigration Appeals has dismissed the alien's

appeal of a denial of asylum, or sustained an appeal by the Service of

a grant of asylum, a copy of the petition for judicial review or for

habeas corpus

[[Page 465]]

pursuant to section 242 of the Act, date stamped by the appropriate

court.

(d) In order for employment authorization to be renewed before its

expiration, the application for renewal must be received by the Service

90 days prior to expiration of the employment authorization.

Sec. 208.8 Limitations on travel outside the United States.

(a) An applicant who leaves the United States without first

obtaining advance parole under Sec. 212.5(e) of this chapter shall be

presumed to have abandoned his or her application under this section.

(b) An applicant who leaves the United States pursuant to advance

parole under Sec. 212.5(e) of this chapter and returns to the country

of claimed persecution shall be presumed to have abandoned his or her

application, unless the applicant is able to establish compelling

reasons for such return.

Sec. 208.9 Procedure for interview before an asylum officer.

(a) The Service shall adjudicate the claim of each asylum applicant

whose application is complete within the meaning of Sec. 208.3(c)(3)

and is within the jurisdiction of the Service.

(b) The asylum officer shall conduct the interview in a

nonadversarial manner and, except 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 asylum. 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 the

applicant's representative shall have an opportunity to make a

statement or comment on the evidence presented. The asylum officer may,

in his or her discretion, 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, except as otherwise provided 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 an equivalent time the periods specified by Sec. 208.7 for

the filing and adjudication of any employment authorization

application.

(f) The asylum application, all supporting information provided by

the applicant, any comments submitted by the Department of State or by

the Service, and any other information specific to the applicant's case

and considered by the asylum officer shall comprise the record.

(g) An applicant unable to proceed with the interview in English

must provide, at no expense to the Service, 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, a witness testifying on the

applicant's behalf, nor a representative or employee of the applicant's

country of nationality, or if stateless, country of last habitual

residence, 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.

Sec. 208.10 Failure to appear at an interview before an asylum

officer.

Failure to appear for a scheduled interview without prior

authorization may result in dismissal of the application, waiver of the

right to an interview, or denial of any application for an employment

authorization document. Failure to appear shall be excused if the

notice of the interview was not mailed to the applicant's current

address and such address had been provided to the Office of

International Affairs by the applicant prior to the date of mailing in

accordance with section 265 of the Act and regulations promulgated

thereunder, unless the asylum officer determines that the applicant

received reasonable notice of the interview. Failure to appear will be

excused if the applicant demonstrates that such failure was the result

of exceptional circumstances.

Sec. 208.11 Comments from the Department of State.

(a) The Service shall forward to the Department of State a copy of

each completed application it receives. At its option, the Department

of State may provide detailed country conditions information relevant

to eligibility for asylum or withholding of removal.

(b) At its option, the Department of State may also provide:

(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; or

(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.

(d) Any such comments received pursuant to paragraphs (b) and (c)

of this section shall be made part of the record. Unless the comments

are classified under the applicable Executive Order, the applicant

shall be provided an opportunity to review and respond to such comments

prior to the issuance of any decision to deny the application.

Sec. 208.12 Reliance on information compiled by other sources.

(a) In deciding an asylum application, or whether the alien has a

credible fear of persecution pursuant to section 235(b)(1)(B) of the

Act, the asylum officer may rely on material provided by the Department

of State, the Office of

[[Page 466]]

International Affairs, other Service offices, or other credible

sources, such as international organizations, private voluntary

agencies, news organizations, or academic institutions.

(b) Nothing in this part shall be construed to entitle the

applicant to conduct discovery directed toward the records, officers,

agents, or employees of the Service, the Department of Justice, or the

Department of State.

Sec. 208.13 Establishing asylum eligibility.

(a) Burden of proof. The burden of proof is on the applicant for

asylum to establish that he or she is a refugee as defined in section

101(a)(42) of the Act. The testimony of the applicant, if credible, may

be sufficient to sustain the burden of proof without corroboration. The

fact that the applicant previously established a credible fear of

persecution for purposes of section 235(b)(1)(B) of the Act does not

relieve the alien of the additional burden of establishing eligibility

for asylum.

(b) Persecution. The applicant may qualify as a refugee either

because he or she has suffered actual past persecution or because he or

she has a well-founded fear of future persecution.

(1) Past persecution. An applicant shall be found to be a refugee

on the basis of past persecution if he or she can establish that he or

she has suffered persecution in the past in his or her country of

nationality or last habitual residence on account of race, religion,

nationality, membership in a particular social group, or political

opinion, and that he or she is unable or unwilling to return to or

avail himself or herself of the protection of that country owing to

such persecution.

(i) If it is determined that the applicant has established past

persecution, he or she shall be presumed also to have a well-founded

fear of persecution unless a preponderance of the evidence establishes

that since the time the persecution occurred conditions in the

applicant's country of nationality or last habitual residence have

changed to such an extent that the applicant no longer has a well-

founded fear of being persecuted if he or she were to return.

(ii) An application for asylum shall be denied if the applicant

establishes past persecution under this paragraph but it is also

determined that he or she does not have a well-founded fear of future

persecution under paragraph (b)(2) of this section, unless it is

determined that the applicant has demonstrated compelling reasons for

being unwilling to return to his or her country of nationality or last

habitual residence arising out of the severity of the past persecution.

If the applicant demonstrates such compelling reasons, he or she may be

granted asylum unless such a grant is barred by paragraph (c) of this

section.

(2) Well-founded fear of persecution. An applicant shall be found

to have a well-founded fear of persecution if he or she can establish

first, that he or she has a fear of persecution in his or her country

of nationality or last habitual residence on account of race, religion,

nationality, membership in a particular social group, or political

opinion; second, that there is a

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