Regulations Concerning the Convention Against Torture
Federal RegisterFeb 19, 1999
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SUMMARY: This interim rule amends Department of Justice regulations by
establishing procedures for raising a claim for protection from
torture, as directed by the Foreign Affairs Reform and Restructuring
Act of 1998. Section 2242 of that Act requires the heads of appropriate
agencies to prescribe regulations for implementing United States
obligations under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention
Against Torture or Convention). Under Article 3 of the Convention
Against Torture (Article 3), the United States has agreed not to
``expel, return (`refouler') or extradite'' a person to another state
where he or she would be tortured. The interim rule establishes
procedures for ensuring compliance with Article 3 with respect to
removal of aliens from the United States by integrating many Convention
Against Torture requests into the present scheme governing asylum and
withholding determinations before the Immigration Court. For persons
subject to reinstatement, administrative removal, expedited removal, or
other streamlined proceedings, excluding those relating to aliens
inadmissible on security and related grounds, the rule establishes a
screening mechanism followed by Immigration Court review that is
similar to the screening procedure currently used in determining
credible fear under expedited removal. The rule also establishes
``deferral of removal,'' a new, limited form of protection that will be
accorded aliens who would be tortured in the country of removal but who
are barred from withholding of removal. Finally, this interim
regulation serves as notice to the public that, upon the effective date
of this rule, the informal procedure currently in place for considering
Convention Against Torture requests will end and those persons who have
raised a claim under the informal procedure will be given an
opportunity, as prescribed by this rule, to have their cases reviewed
under the new procedures.
DATES: Effective date: This interim rule is effective March 22, 1999.
Comment date: written comments must be submitted on or before April
20, 1999.
ADDRESSES: Please submit written comments in original and three copies
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 reference INS No. 1976-99 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
Immigration and Naturalization Service: Dorothea Lay, 425 I Street, NW,
Washington, DC 20536, telephone number (202) 514-2895. For matters
relating to the Executive Office for Immigration Review: Margaret M.
Philbin, General Counsel, Executive Office for Immigration Review,
Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia, 22041,
telephone number (703) 305-0470.
SUPPLEMENTARY INFORMATION:
Background
On October 21, 1998, the President signed into law legislation
which requires that ``[n]ot later than 120 days after the date of
enactment of this Act, the heads of the appropriate agencies shall
prescribe regulations to implement the obligations of the United States
under Article 3 of the United Nations Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,
subject to any reservations, understandings, declarations, and provisos
contained in the United States Senate resolution of ratification of the
Convention.'' Section 2242(b) of the Foreign Affairs Reform and
Restructuring Act of 1998 (Pub. L. 105-277, Division G, Oct. 21, 1998).
Obligations under the Convention Against Torture have been in
effect for the United States since November 20, 1994. Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197,
U.N. Doc. A/39/51 (1984) [hereinafter Convention or Convention Against
Torture]. On October 21, 1994, President Clinton deposited the United
States instrument of ratification of the Convention with the Secretary
General of the United Nations. Consistent with its terms, the
Convention Against Torture entered into force for the United States 30
days later. Under Article 3, the United States had agreed not to
``expel, return (`refouler') or extradite'' a person to another state
where he or she would be tortured. The Department of State is
responsible for carrying out extradition requests and will promulgate
regulations to ensure compliance with Article 3 in those cases. In
other cases, the Attorney General is charged with expelling or
returning aliens from the United States to other countries. This rule
is published pursuant to this mandate to implement United States
obligations under Article 3 in the context of the Attorney General's
removal of aliens Article 3 provides as follows:
1. No State Party shall expel, return, (``refouler'') or extradite
a person to another State where there are substantial grounds for
believing that he or she would be in danger of being subjected to
torture.
2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant, or mass
violations of human rights.
This Article is similar in some ways to Article 33 of the 1951
Convention relating to the Status of Refugees. The Convention relating
to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (hereinafter
Refugee Convention). Article 33 provides that ``[n]o Contracting State
shall expel or return (`refouler') a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be
threatened on account of race, religion, nationality, membership of a
particular social group or political opinion.'' The United States
currently implements Article 33 of the Refugee Convention through the
withholding of removal provision in section 241(b)(3) (formerly section
243(h)) of the Immigration and Nationality Act (INA or the Act). That
provision, as interpreted by the courts, requires the Attorney General
to withhold an alien's removal to a country where it is more likely
than not that the alien's life or freedom would be threatened on
account of one of the five grounds mentioned above. See INS v. Stevic,
467 U.S. 407, 429-30 (1984).
However, there are some important differences between withholding
of removal under section 241(b)(3) of the Act and Article 3 of the
Convention Against Torture. First, several categories of individuals,
including persons who
[[Page 8479]]
assisted in Nazi persecution or engaged in genocide, persons who have
persecuted others, persons who have been convicted of particularly
serious crimes, persons who are believed to have committed serious non-
political crimes before arriving in the United States, and persons who
pose a danger to the security of the United States, are ineligible for
withholding of removal. See INA section 241(b)(3)(B). Article 3 of the
Convention Against Torture does not exclude such persons from its
scope. Second, section 241(b)(3) applies only to aliens whose life or
freedom would be threatened on account of race, religion, nationality,
and membership in a particular social group or political opinion.
Article 3 covers persons who fear torture that may not be motivated by
one of those five grounds. Third, the definition of torture does not
encompass all types of harm that might qualify as a threat to life or
freedom. Thus, the coverage of Article 3 is different from that of
section 241(b)(3): broader in some ways and narrower in others.
Until the October 21, 1998 legislation, there was no statutory
provision to implement Article 3 of the Convention Against Torture in
United States domestic law. When the United States Senate gave advice
and consent to ratification of the Convention Against Torture, it made
a declaration that Articles 1 through 16 were not self-executing.
Recognizing, however, that ratification of the Convention represented a
statement by the United States to the international community of its
commitment to comply with the Convention's provisions to the extent
permissible under the Constitution and existing federal statutes, the
Department of Justice sought to conform its practices to the Convention
by ensuring compliance with Article 3 in the case of aliens who are
subject to removal from the United States.
In order to conform to the Convention before the enactment of
implementing legislation, the Immigration and Naturalization Service
(INS or Service) adopted a pre-regulatory administrative process to
assess the applicability of Article 3 to individual cases in which an
alien is subject to removal. Under this pre-regulatory administrative
process, upon completion of deportation, exclusion, or removal
proceedings and prior to execution of a final order of removal, the INS
has considered whether removing an alien to a particular country is
consistent with Article 3. If it is determined that the alien could not
be removed to the country in question consistent with Article 3, the
INS has used its existing discretionary authority to ensure that the
alien is not removed to that country for so long as he or she is likely
to be tortured there. See INA Sec. 103(a); 8 CFR 2.1.
In formulating its pre-regulatory administrative process to conform
to Article 3 in the context of the removal of aliens, the INS has been
careful not to expand upon the protections that Article 3 grants. Only
execution of an order of removal to a country where an alien is more
likely than not to be tortured would violate the Convention. Therefore,
the INS has not addressed the question of whether Article 3 prohibits
removal in an individual case until there is a final administrative
order of removal to a place where an alien claims that he or she would
be tortured, and until all appeals, requests for review, or other
administrative or judicial challenges to execution of that order have
been resolved. This approach has allowed the INS to address the
applicability of Article 3 to a case only when actually necessary to
comply with the Convention. It has also allowed an individual alien to
exhaust all avenues for pursuing any other more extensive benefit or
protection for which he or she may be eligible before seeking the
minimal guarantee provided by Article 3 that he or she will not be
returned to a specific country where it is likely that he or she would
be tortured. At the same time, this approach has allowed the INS, the
agency responsible for executing removal orders, to ensure that no
order is executed under circumstances that would violate the
Convention.
Goals of Interim Rule
Pursuant to statutory mandate, the Department of Justice now
publishes this rule in order to implement the United States' Article 3
obligations in the context of the removal of aliens by the Attorney
General. The rule is published as an interim rule, effective 30 days
after the date of publication. This rule is intended to create fair and
efficient provisions to implement Article 3 within the overall
regulatory framework for the issuance of removal orders and decisions
about the execution of such orders.
The primary goals of this rule are to establish procedures that
ensure that no alien is removed from the United States under
circumstances that would violate Article 3 without unduly disrupting
the issuance and execution of removal orders consistent with Article 3.
To this end, we have designed a system that will allow aliens subject
to the various types of removal proceedings currently afforded by the
immigration laws to seek, and where eligible, to be accorded protection
under Article 3. At the same time, we have created mechanisms to
quickly identify and resolve frivolous claims to protection so that the
new procedures cannot be used as a delaying tactic by aliens who are
not in fact at risk.
In cases subject to streamlined, expedited removal processes under
current law, the rule employs screening mechanisms to quickly identify
potentially meritorious claims to protection and to resolve frivolous
ones with dispatch. For example, the rule allows for the screening of
aliens arriving at ports of entry to determine whether they establish a
credible fear of torture. This screening will be conducted in
conjunction with the existing credible fear of persecution screening
process, so that it will not complicate or delay the expedited removal
process established by Congress for arriving aliens. If an alien passes
this threshold-screening standard, his or her claim for protection
under Article 3 will be further examined by an immigration judge in the
context of removal proceedings under section 240 of the Act. The
screening mechanism also allows for the expeditious review by an
immigration judge of a negative screening determination and the quick
removal of an alien with no credible claim to protection.
Furthermore, the rule establishes a new screening process to
rapidly identify and assess both claims for withholding of removal
under section 241(b)(3) of the Act and for protection under the
Convention by either aliens subject to administrative removal for
aggravated felons under section 238(b) of the Act or to reinstatement
of a previous order of removal under section 241(a)(5) of the Act.
Modeled on the credible fear screening mechanism, this screening
process will also allow for the fair and expeditious resolution of such
claims without unduly disrupting the streamlined removal processes
applicable to these aliens.
The cases of alien terrorists and other aliens subject to
administrative removal under section 235(c) of the Act will be handled
through the administrative process in which the INS issues and executes
the removal order. Cases handled under section 235(c) are only a few
each year, and typically involve highly sensitive issues and
adjudication based on classified information under tight controls.
Thus, by retaining the ability to assess the applicability of Article 3
through the administrative removal process, the INS will both maintain
a workable process and ensure U.S. compliance with Article 3 in these
unusual cases. Similarly, the regulations
[[Page 8480]]
provide that an alien whose removal has been ordered by the Alien
Terrorist Removal Court under the special procedures set forth in Title
V of the Act shall not be removed to a particular country if the
Attorney General determines, in consultation with the Secretary of
State, that removal to that country would violate Article 3.
For aliens subject to removal proceedings under section 240 of the
Act, exclusion proceedings, or deportation proceedings, a claim to
protection under the Convention Against Torture will be raised and
considered, along with any other applications, during removal
proceedings before an immigration judge. Both the alien and the INS
will have the ability to appeal decisions of the immigration judge to
the Board of Immigration Appeals (the Board). This will allow the alien
to seek review of this important decision, and will also allow the INS
to use the review mechanism to ensure that decisions about the
applicability of Article 3 are made consistently and according to the
high standards of proof required by Article 3 itself. At the same time,
the availability of review will not expand the process already
available to aliens in proceedings under section 240, who under current
law already have the opportunity to seek Board review of decisions of
the immigration judge.
Nor does this rule expand the availability of judicial review for
aliens who make claims to protection under the Convention Against
Torture. The statute requiring regulatory implementation of obligations
under Article 3 explicitly provides that it does not authorize judicial
review of these regulations. Section 2242(d) of the Foreign Affairs
Reform and Restructuring Act of 1998. The rule restates at
Sec. 208.18(e) the statutory mandate that the only available judicial
review for Convention Against Torture claims is when such claims are
heard as part of the review of a final order of removal pursuant to
section 242 of the Act. Such review remains subject to the requirements
and limitations of section 242. Where a court has jurisdiction to
consider a Convention Against Torture claim, it may not, except as
authorized by section 242, consider other claims regarding the alien's
removal.
Structure of Rule
Generally, the rule creates two separate provisions for protection
under Article 3 for aliens who would be tortured in the country of
removal. The first provision establishes a new form of withholding of
removal under Sec. 208.16(c). This type of protection is only available
to aliens who are not barred from eligibility for withholding of
removal under section 241(b)(3)(B) of the Act. The second provision,
under Sec. 208.17(a), concerns aliens who would be tortured in the
country of removal but who are subject to the bars contained in section
241(b)(3)(B) of the Act. These aliens may only be granted deferral of
removal, a less permanent form of protection than withholding of
removal and one that is more easily and quickly terminated if it
becomes possible to remove the alien consistent with Article 3.
Deferral of removal will be granted based on the withholding of removal
application to an alien who is likely to be tortured in the country of
removal but who is barred from withholding of removal. Section
208.17(d) sets out a special, streamlined procedure through which the
INS may seek to terminate deferral of removal when appropriate.
Withholding of Removal Under the Convention Against Torture
Revised Sec. 208.16(c) creates a new form of withholding of
removal, which will be granted to an eligible alien in removal
proceedings who establishes that he or she would be tortured in the
proposed country of removal. This section references new
Sec. 208.18(a), which contains the definition of torture, and provides
that this definition will be applied in all determinations about
eligibility for this new form of withholding, or for deferral of
removal.
An alien granted withholding under new Sec. 208.16(c) would be
treated similarly to an alien granted withholding of removal under
Sec. 208.16(b), the regulatory provision implementing section 241(b)(3)
of the Act. The rule provides at Sec. 208.16(c)(2) that, in order to be
eligible for withholding of removal under Article 3, an alien must
establish that it is more likely than not that he or she would be
tortured in the country in question. Imposition of this burden of proof
on the alien gives effect to one of the Senate understandings upon
which ratification was conditioned, which provides that ``the United
States understands that the phrase, `where there are substantial
grounds for believing that he would be in danger of being subjected to
torture,' as used in Article 3 of the Convention, to mean `if it is
more likely than not that he would be tortured.' '' The ratification
history makes clear that this understanding was intended to ensure that
the standard of proof for Article 3 would be the same standard as that
for withholding of removal under section 241(b)(3) of the Act, then
section 243(h) of the Act. See, e.g., Convention Against Torture,
submitted to the Senate, May 20, 1988, S. Treaty Doc. No. 100-20, at 6
(1988) (hereinafter S. Treaty Doc. No. 100-20).
Section 208.16(c)(3) also directs that all evidence relevant to the
possibility of future torture should be considered when making the
determination as to whether the alien is more likely than not to be
tortured. It specifically provides that evidence of past torture
inflicted on the applicant should be considered, because evidence of
past torture may be probative as to whether future torture is likely.
Section 208.16(c)(3) also requires that, in determining whether the
applicant has met his or her burden of proof, the decision-maker may
consider any evidence that the alien may be able to relocate to an area
of the country of removal where he or she is not likely to be tortured.
Consideration of this factor is consistent with long-established
precedent in the context of the adjudication of requests for asylum and
withholding of removal under section 241(b)(3) of the Act, and is
relevant to the likelihood that an alien would be tortured if returned
to a specific country. This section also provides that, where
applicable, the adjudicator will consider evidence of gross, flagrant,
or mass violations of human rights committed within the country in
question. This requirement is drawn directly from clause 2 of Article
3. The words ``where applicable'' indicate that, in each case, the
adjudicator will determine whether and to what extent evidence of human
rights violations in a given country is in fact a relevant factor in
the case at hand. Evidence of the gross and flagrant denial of freedom
of the press, without more, for example, may not tend to show that an
alien would be tortured if returned to that country. See, e.g., S.
Treaty Doc. No. 100-20, at 20. The rule further directs that any other
relevant information about country conditions in the country of removal
be considered.
Applicants for withholding under Sec. 208.16(c) will be subject to
the mandatory bars to withholding contained in section 241(b)(3)(B) of
the Act. Section 241(b)(3)(B) of the Act bars from withholding of
removal aliens: who have assisted in Nazi persecution or engaged in
genocide; who have ordered, incited, assisted or otherwise participated
in the persecution of others; and who, having been convicted of a
particularly serious crime, pose a danger to the community of the
United States. The section 241(b)(3)(B) bar also applies when there are
serious reasons to believe that the alien has committed a serious non-
political crime outside the
[[Page 8481]]
United States before arriving in the United States or there are
reasonable grounds to believe that the alien is a danger to the
security of the United States. The legislation implementing Article 3
provides that ``[t]o the maximum extent consistent with the obligations
of the United States under the Convention, subject to any reservations,
understandings, declarations, and provisos contained in the United
States Senate resolution of ratification of the Convention, the
regulations described in subsection (b) [mandating promulgation of
regulations to implement Article 3] shall exclude from the protection
of such regulations aliens described in section 241(b)(3)(B) of the
Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)).'' Section
2242(c) of the Foreign Affairs Reform and Restructuring Act of 1998.
Thus, consistent with the statutory directive, the advantages of a
grant of withholding of removal will not be available to such aliens.
Rather, their protection from return to a country where they would be
tortured, as required by the Convention, will be effected through a
less extensive form of protection, i.e., deferral of removal,
established in Sec. 208.17(a).
Deferral of Removal Under the Convention Against Torture
Although aliens who are barred from withholding of removal under
Sec. 241(b)(3)(B) of the Act are not eligible for withholding under
208.16(c), the Article 3 implementing statute directs that any
exclusion of these aliens from the protection of these regulations must
be consistent with United States obligations under the Convention,
subject to United States reservations, understandings, declarations,
and provisos conditioning ratification. Section 2242(c) of the Foreign
Affairs Reform and Restructuring Act of 1998. Article 3 prohibits
returning any person to a country where he or she would be tortured,
and contains no exceptions to this mandate. Nor do any of the United
States reservations, understandings, declarations, or provisos
contained in the Senate's resolution of ratification provide that the
United States may exclude any person from Article 3's prohibition on
return because of criminal or other activity or for any other reason.
Indeed, the ratification history of the Convention Against Torture
clearly indicates that the Executive Branch presented Article 3 to the
Senate with the understanding that it ``does not permit any discretion
or provide for any exceptions * * *.'' Convention Against Torture:
Hearing Before the Senate Comm. on Foreign Relations, 101st Cong., 18
(1990) (statement of Mark Richard, Deputy Assistant Attorney General
for the Criminal Division, DOJ).
Wherever possible, subsequent acts of Congress must be construed as
consistent with treaty obligations. See e.g., Cook v. United States,
288 U.S. 102, 120 (1933) (``[a] treaty will not be deemed to have been
abrogated or modified by a later statute, unless such purpose on the
part of Congress has been clearly expressed.''). Here, Congress has not
indicated an intent to modify the obligations imposed by Article 3. In
fact, Congress has clearly expressed its intent that any exclusion of
aliens described in section 241(b)(3)(B) of the Act from the protection
of these regulations must be consistent with Article 3. The obligation
not to return such an alien to a country where he or she would be
tortured remains in effect. Thus, while this rule does not extend the
advantages associated with a grant of withholding of removal to aliens
barred under section 241(b)(3)(B) of the Act, it does ensure that they
are not returned to a country where they would be tortured.
To this end, the rule creates a special provision under
Sec. 208.17(a) for deferral of removal when an alien described in
section 241(b)(3)(B) of the Act has been ordered removed to a country
where it has been determined that he or she would be tortured. The
process is as follows: Before determining whether the bars described in
section 241(b)(3)(B) of the Act apply to withholding removal of an
alien under the Convention Against Torture, the immigration judge is
required to find whether the alien is likely to be tortured in the
country of removal. Only after this finding is made does the
immigration judge decide, as required by Sec. 208.16(d), whether the
statutory bars to withholding of removal apply. If the bars do not
apply, the immigration judge will grant withholding of removal to an
alien who has been determined to be likely to be tortured in the
country of removal. If the immigration judge finds that the bars apply,
Sec. 208.17(a) requires the immigration judge to defer removal of an
alien to a country where the alien is likely to be tortured. The alien
need not apply separately for deferral because this form of protection
will be accorded automatically, based on the withholding application,
to an alien who is barred from withholding but is likely to be tortured
in the country of removal. While the order of deferral is in effect,
the alien will not be returned to the country in question.
Section 208.17(a) is subject to the same standard of proof and
definitional provisions as Sec. 208.16(c). This will ensure that
compliance with Article 3 is complete and consistent in the cases of
aliens who are barred from withholding as well as in the cases of
aliens who are not barred from withholding. However, an order of
deferral provides a much more limited form of protection than does a
grant of withholding of removal. An order of deferral would not confer
upon the alien any lawful or permanent immigration status in the United
States and would be subject to streamlined and expeditious review and
termination if it is determined that it is no longer likely that the
alien would be tortured in the country to which he or she has been
ordered removed. Further, like withholding, deferral of removal is
effective only with respect to the particular country in question and
does not alter the government's ability to remove the alien to another
country where he or she would not be tortured. The rule requires the
immigration judge to inform the alien of the limited nature of the
deferral order at the time such order is entered.
In addition, an order deferring removal to a particular country
will not alter INS authority to detain an alien who is otherwise
subject to detention. Section 241(a)(6) of the Act provides a variety
of grounds for INS in its discretion to detain beyond the removal
period an alien under a final order who cannot be removed. These
include, most importantly, the discretion to detain an alien granted
deferral of removal under Article 3 who is removable based on security
grounds, based on certain criminal offenses, or who has been determined
to pose a risk to the community. This is consistent with the Article 3
implementing statute, which provides that ``[n]othing in this section
shall be construed as limiting the authority of the Attorney General to
detain any person under any provision of law, including, but not
limited to, any provision of the Immigration and Nationality Act.''
Section 2242(e) of the Foreign Affairs Reform and Restructuring Act of
1998. Section 208.17(c) of the interim rule provides that decisions
about the detention of detainable aliens who have been granted deferral
of removal will be made according to standard procedures under 8 CFR
part 241.
Termination of Deferral of Removal
The most important distinction between withholding of removal and
deferral of removal is the mode of termination. Section 208.17(d) will
provide for a streamlined termination process for deferral of removal
when it is no longer likely that an alien would be tortured in the
country of removal.
[[Page 8482]]
Under existing regulations, withholding can only be terminated when the
government moves to reopen the case, meets the standards for reopening,
and meets its burden of proof to establish by a preponderance of the
evidence that the alien is not eligible for withholding. The
termination process for deferral of removal is designed to be much more
accessible, so that deferral can be terminated quickly and efficiently
when appropriate.
At any time while the order of deferral is in effect, the INS
District Counsel for the district with jurisdiction over an alien
granted deferral of removal may move the immigration court to schedule
a hearing to determine whether the deferral order can be terminated.
The INS motion will not be subject to the normal motion to reopen
requirement that the moving party seek to offer evidence that was
previously unavailable (i.e., could not have been discovered and
presented at the previous hearing) and that establishes a prima facie
case for termination. Rather, the Service's motion will be granted and
a termination hearing will be scheduled on an expedited basis if the
Service meets a lower threshold, which requires only that the evidence
was not considered at the previous hearing and is relevant to the
possibility that the alien would be tortured in the country of removal.
This will allow the Service to monitor cases in which an order of
deferral is in effect, and to bring such cases for termination hearings
when it appears that the alien may no longer face likely torture in the
country in question.
The Immigration Court will provide the alien with notice of the
time, place, and date of the termination hearing, and will have the
opportunity to submit evidence to supplement his or her initial
application for withholding, which was the basis for the deferral
order. As is the case with initial asylum and withholding applications,
the original application, along with any supplemental information
submitted by the alien, will be forwarded to the Department of State,
which may comment on the case at its option. At the termination
hearing, it will be the alien's burden to establish that it is more
likely than not that he or she would be tortured in the country of
removal. The immigration judge will make a de novo determination about
the alien's likelihood of torture in the country in question. If the
immigration judge determines that the alien is more likely than not to
be tortured in the country to which removal has been deferred, the
order of deferral shall remain in place. If the alien fails to meet the
burden of proof, the deferral order will be terminated. If the alien
establishes that he or she still requires protection under the
Convention Against Torture, the deferral order will remain in effect.
Appeal of the immigration judge's decision shall lie to the Board.
Deferral of removal may also be terminated at the alien's written
request under Sec. 208.17(e). For termination on this basis, the rule
requires that the immigration judge determine whether the alien's
request is knowing and voluntary. If necessary, the immigration judge
may conduct a hearing to make this determination. If it is determined
that the alien's request for termination is not knowing and voluntary,
deferral will not be terminated on this basis.
Implementation of the Convention Against Torture
Section 208.18 sets out a number of provisions governing the
implementation of the Convention Against Torture provisions. This
section contains the definition of torture that will apply in both the
withholding and deferral contexts, rules about the applicability of the
new provisions, and a section clarifying that this rule does not expand
the availability of judicial review to aliens who assert claims to
protection under the Convention Against Torture.
Definition of Torture
Section 208.18(a) provides the definition of torture and of terms
within that definition. Initially, consistent with the statute, it
provides that the regulatory definition of torture incorporates the
definition in Article 1 of the Convention, as interpreted and modified
by United States reservations, understandings, declarations and
provisos. The remainder of the definition section is drawn directly
from the language of the Convention, the language of the reservations,
understandings and declarations contained in the Senate resolution
ratifying the Convention, or from ratification history.
Section 208.18(a)(1) contains the first sentence of Article 1,
providing the basic contours of the definition of torture. It does not
attempt to list the types of acts that would constitute torture, but
rather expresses basic elements that must be present in order for an
act to be torture: It must be an act causing severe pain or suffering,
whether physical or mental, intentionally inflicted on a person.
Article 16, which refers to ``other acts of cruel, inhuman or degrading
treatment or punishment, which do not amount to torture,'' confirms
that, as provided in Sec. 208.18(a)(2), torture is an extreme form of
cruel and inhuman treatment. See, e.g., S. Treaty Doc. No. 100-20 at
23.
Section 208.18(a)(3) provides that torture ``does not include pain
or suffering arising only from, inherent in or incidental to lawful
sanctions.'' This is drawn from the second sentence of Article 1. The
Senate adopted an understanding providing that ``with reference to
article 1 of the Convention, the United States understands that
`sanctions' includes judicially-imposed sanctions and other enforcement
actions authorized by United States law or by judicial interpretation
of such law. Nonetheless, the United States understands that a State
Party could not through its domestic sanctions defeat the object and
purpose of the Convention to prohibit torture.'' 136 Cong. Rec. 36198
(1990). Therefore Sec. 208.18(a)(3) also provides that ``[l]awful
sanctions include judicially imposed sanctions and other enforcement
actions authorized by law, including the death penalty, but do not
include sanctions that defeat the object and purpose of the Convention
Against Torture to prohibit torture.'' This paragraph does not require
that, in order to come within the exception, an action must be one that
would be authorized by United States law. It must, however, be
legitimate, in the sense that a State cannot defeat the purpose of the
Convention to prohibit torture.
Senate understandings also provide that ``the United States
understands that international law does not prohibit the death penalty,
and does not consider this Convention to restrict or prohibit the
United States from applying the death penalty consistent with the
Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the
United States, including any constitutional period of confinement prior
to the imposition of the death penalty.'' This understanding is
embodied in Sec. 208.18(a)(3)'s inclusion of the death penalty in the
description of lawful sanctions that do not constitute torture. The
purpose of the Senate's understanding on the death penalty is to
clarify that the Convention does not prohibit the United States from
applying the death penalty consistent with United States constitutional
standards. This concept will likely have limited application in the
context of Article 3 implementation. It means simply that the
constitutionally sufficient imposition of the death penalty in the
United States is not torture. The understanding does not mean, however,
that any imposition of the death penalty by a foreign state that fails
to satisfy United States
[[Page 8483]]
constitutional requirements constitutes torture. Any analysis of
whether the death penalty is torture in a specific case would be
subject to all requirements of the Convention's definition, the
Senate's reservations, understandings, and declarations, and the
regulatory definitions. Thus, even if imposition of the death penalty
would be inconsistent with United States constitutional standards, it
would not be torture if it were imposed in a legitimate manner to
punish violations of law. Similarly, it would not be torture if it
failed to meet any other element of the definition of torture.
The definition of torture can, in limited circumstances, include
severe mental pain and suffering. Section 208.18(a)(4) provides a
detailed and restrictive definition of the type of severe mental harm
that can constitute torture. This language is drawn directly from the
Senate's understandings. See 136 Cong. Rec. 36198.
Section 208.18(a)(5) requires that, in order to qualify as torture,
an act must be specifically intended to inflict severe pain or
suffering, a requirement clearly imposed by United States
understandings. Id. Thus, an act that results in unanticipated or
unintended severity of pain and suffering is not torture. See, e.g., S.
Treaty Doc. No. 100-20, at 19.
Section 208.18(a)(6) provides that, for an act to constitute
torture, the victim of the act must be in the custody or physical
control of the perpetrator. Thus, harm, even severe pain and suffering,
inflicted on a person who is not within the perpetrator's custody or
physical control, would not qualify as torture. Again, the language of
this regulatory provision is taken directly from the Senate
understandings. See 136 Cong. Rec. 36198.
Article 1 of the Convention Against Torture requires that torture
must be inflicted ``by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.'' Senate understandings provide that ``the term
`acquiescence' requires that the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter
breach his legal responsibility to intervene to prevent such
activity.'' 136 Cong. Rec. 36198. Section 208.18(a)(7) mirrors this
requirement. Thus the definition of torture includes only acts that
occur in the context of governmental authority. See, e.g., S. Treaty
Doc. No. 100-20, at 19.
Section 208.18(a)(8) provides that noncompliance with applicable
legal procedural standards does not per se constitute torture. Again,
this provision mirrors Senate understandings. 136 Cong. Rec. 36198.
Applicability of New Provisions
Section 208.18(b)(1) provides that aliens who are in exclusion,
deportation, or removal proceedings as of the effective date of this
rule may seek withholding under the Convention Against Torture, and if
applicable be considered for deferral under the Convention, through the
procedures established by this rule. Section 208.18(b)(2) also
establishes special procedures to provide a reasonable opportunity to
request consideration for protection under Article 3 for aliens who
were either ordered removed prior to the effective date of this rule,
or whose removal orders become final prior to the effective date of the
rule. Such aliens will be given a 90-day window of time in which to
file a motion to reopen before the immigration court or before the
Board of Immigration Appeals, to apply for protection under this rule.
Any motion filed by such an alien within 90 days of the effective date
of this rule, March 22, 1999, will not be subject to the normal
requirement that the motion must seek to present new evidence that was
unavailable and could not have been presented at the previous hearing.
Nor will such a motion be subject to the normal time and numerical
limitations on motions to reopen under Secs. 3.2 and 3.23. Such a
motion will, however, be subject to the other requirements set out in
the regulations for a motion to reopen. Therefore it will not be
granted unless the evidence sought to be offered establishes a prima
facie case that the alien's removal would violate Article 3 of the
Convention Against Torture. Similarly, like other motions to reopen,
such a motion will not automatically stay the alien's removal. Rather,
the alien must request a stay of removal at the time of filing the
motion to reopen.
Aliens Who Requested Protection Under the Convention Through the
INS Pre-regulatory Administrative Process To Ensure Compliance With
Article 3
As explained previously, the INS has, prior to the effective date
of this rule, conducted a pre-regulatory administrative process to
comply with Article 3 of the Convention Against Torture until
implementing legislation was enacted and obligations under that Article
could be implemented by this rule. Section 208.18(b)(3) of this rule
provides that, after the effective date of this rule, the INS pre-
regulatory administrative process for ensuring compliance with Article
3 will end. After the effective date of this rule, except as otherwise
provided, the INS will no longer stay an alien's removal based only on
a request for protection under Article 3, nor will it consider the
applicability of Article 3 to an individual case under its pre-
regulatory administrative process.
Section 208.18(b)(4) provides that the new procedures established
by this rule to provide for the consideration of claims to protection
under the Convention Against Torture do not apply to cases in which the
Service, prior to the effective date of this rule, has made a final
administrative determination about the applicability of Article 3. This
section provides that, if the Service has determined under its pre-
regulatory administrative process that an alien cannot be removed to a
particular country consistent with Article 3, the alien be considered
to have been granted withholding of removal under Sec. 208.16(c),
unless the alien is subject to mandatory denial of withholding under
Sec. 208.16(d) (2) or (3). If such an alien is barred from withholding
of removal, he or she will be considered to have been granted deferral
of removal under Sec. 208.17(a). Similarly, if an alien was determined
under the pre-regulatory administrative process not to require
protection under Article 3, that alien will be considered to have been
finally denied withholding of removal under Sec. 208.16(c) and deferral
of removal under Sec. 208.17(a). This paragraph applies only to cases
in which the Service actually reached a final determination about the
applicability of Article 3 to an individual case.
A different regime will apply to aliens who requested protection
under the pre-regulatory administrative process but did not receive a
final determination from the Service. The Service will provide notice
about the end of the pre-regulatory administrative process to such
aliens. This notice will inform the alien of the new regulatory process
through which Article 3 claims will be processed. The notice will also
explain that an alien who was ordered removed or whose removal order
became final prior to the effective date of this rule may obtain
consideration of a claim under Article 3 only through the procedures
set out in this rule. An alien under a final removal order issued by
EOIR may obtain consideration of the Article 3 claim by filing a motion
to reopen with the immigration court or the Board of Immigration
Appeals. In order to provide a reasonable opportunity to file such a
motion, an alien who has a request for Article 3 protection pending
with the Service on
[[Page 8484]]
the date this rule becomes effective will be granted a stay of removal
effective until 30 days after the notice is served on the alien. Any
motion filed by such an alien will not be subject to the normal
requirements for motions to reopen. The immigration judge or the Board
shall grant such a motion if it is accompanied by a copy of the notice
provided by the Service or by other convincing evidence that the alien
requested protection under Article 3 from the Service through the pre-
regulatory administrative process and did not receive a final
administrative determination prior to the effective date of this rule.
The filing of such a motion shall extend the stay of removal pending
the adjudication of the motion. This special provision ensures that
those who requested protection under the INS pre-regulatory
administrative process and did not get a ruling will have a full and
fair opportunity to pursue their claims for protection under the new
regulatory process.
For an alien under a removal order issued by the Service under
section 238(b) of the Act or an alien under an exclusion, deportation,
or removal order that has been reinstated by the Service, the Service
will consider any claim to protection that is pending on the effective
date of this rule through the process set out in section 208.31. For an
alien ordered removed by the Service under section 235(c) of the Act,
the Service will decide under section 235.8(b)(4) any Article 3 claim
that is pending on the effective date of this rule. Such a claim will
not be subject to the procedures set out for consideration of Article 3
claims by an immigration judge, the Board of Immigration Appeals, or an
asylum officer.
Cases in Which Diplomatic Assurances Are Considered
Section 208.18(c) sets out special procedures for cases in which
the Secretary of State forwards to the Attorney General assurances that
the Secretary has obtained from the government of a specific country
that an alien would not be tortured if returned there. In some cases,
it may be possible for the United States to actually reduce the
likelihood that an alien would be tortured in a particular country. The
nature and reliability of such assurances, and any arrangements through
which such assurances might be verified, would require careful
evaluation before any decision could be reached about whether such
assurances would allow an alien's removal to that country consistent
with Article 3. This paragraph sets out special procedures under which
the Attorney General, in consultation with the Secretary of State, will
assume responsibility for assessing the adequacy of any such assurances
in appropriate cases. Cases will be handled under this provision only
if such assurances are actually forwarded to the Attorney General by
the Secretary of State for consideration under this special process. It
is anticipated that these cases will be rare.
In cases in which the Secretary has forwarded assurances under this
provision, the procedures for administrative consideration of claims
under the Convention Against Torture set out elsewhere in this rule
will not apply. Further, the rule provides that the Attorney General's
authority to make determinations about the applicability of Article 3
in such a case may be exercised by the Deputy Attorney General or by
the Commissioner, but may not be further delegated. Thus the rule
ensures that cases involving the adequacy of diplomatic assurances
forwarded to the Attorney General by the Secretary of State will
receive consideration at senior levels within the Department of
Justice, which is appropriate to the delicate nature of a diplomatic
undertaking to ensure that an alien is not tortured in another country.
Under Sec. 208.17(f), these special procedures may also be invoked in
appropriate cases for considering whether deferral of removal should be
terminated.
Cases Involving Aliens Ordered Removed Under Section 235(c) of the
Act
Section 208.18(d) provides, as discussed previously in the
supplementary information, that an alien ordered removed pursuant to
section 235(c) of the Act will not be removed under circumstances that
would violate section 241(b)(3) of the Act or Article 3 of the
Convention Against Torture. Any claim by an alien for protection
against removal to a country where the alien claims he or she would be
tortured will be considered by the Service under the standards
applicable to protection under the Convention Against Torture, in light
of the special circumstances of each case.
Because these determinations will be made by the Service, the
procedural provisions in Part 208 for consideration or decision of an
alien's claims by an immigration judge, the Board, or an asylum officer
do not apply in such cases. Thus, although this rule amends 8 CFR
253.1(f) to provide that an alien removable under section 235(c) of the
Act may apply for protection under the Convention Against Torture under
8 CFR Part 208, such an alien's claim would be considered by the
Service as provided in Sec. 208.18(d), and not by an immigration judge
or asylum officer.
Similarly, although Sec. 208.2(b)(1)(C)(v) provides that an
immigration judge shall have exclusive jurisdiction over any asylum
application filed on or after April 1, 1997, by an alien who has been
ordered removed under section 235(c) of the Act, that provision by its
express terms is only applicable ``[a]fter Form I-863, Notice of
Referral to Immigration Judge, has been filed with the Immigration
Court.'' When the alien is found to be removable as provided in section
235(c)(2)(B) of the Act, the Service issues a removal order without
referring the case to an immigration judge. Thus this provision
relating to the authority of the immigration judge will apply to an
alien who is subject to removal under section 235(c) of the Act only if
the Service makes a determination to refer the case to an immigration
judge for consideration as provided in sections 235.8(b)(2)(ii) and
(d).
Expedited Removal and the Credible Fear Process
The credible fear screening provisions at Sec. 208.30 are amended
to ensure that arriving aliens who are subject to the statutory
provisions for expedited removal at ports of entry will, when
necessary, be considered for protection under Article 3 as well as for
asylum under section 208 of the Act and withholding under section
241(b)(3)(B) of the Act. Under current procedures, an alien subject to
expedited removal who expresses a fear of persecution in his or her
country of origin is interviewed by an asylum officer to determine
whether the alien has a credible fear of persecution. Under the amended
procedures, an alien who expresses such a fear will also be examined to
determine whether he or she has a credible fear of torture. An alien
will be found to have a credible fear of torture if the alien shows
that there is a significant possibility that he or she is eligible for
withholding of removal or deferral of removal under the Convention
Against Torture. If the alien has a credible fear of torture, he or she
will be referred to an immigration judge for removal proceedings under
section 240 of the Act, just as in the current credible fear of
persecution process. In these proceedings, the alien will be able to
assert a claim to withholding of removal under the Convention Against
Torture or under section 241(b)(3) of the Act, or to deferral of
removal in the case of an alien barred from withholding, or to asylum
under section 208 of the Act. Similarly, consistent with current
[[Page 8485]]
procedures in the expedited removal context, upon the alien's request,
an asylum officer's negative credible fear of torture determination
will be subject to expeditious review by an immigration judge, with no
appeal of this screening review. Thus, the interim rule provides for
fair resolution of claims to protection under the Convention Against
Torture in the expedited removal context, without disrupting the
streamlined process established by Congress to circumvent meritless
claims.
Reasonable Fear Screening Process for Aliens in Administrative
Removal Proceedings for Aggravated Felons and Aliens Subject to
Reinstated Orders
Section 208.31 creates a new screening process to evaluate torture
claims for aliens subject to streamlined administrative removal
processes for aggravated felons under section 238(b) of the Act and for
aliens subject to reinstatement of a previous removal order under
section 241(a)(5) of the Act. This new screening process is modeled on
the credible fear screening process, but requires the alien to meet a
higher screening standard. Similar to the credible fear screening
process, Sec. 208.31 is intended to provide for the fair resolution of
claims both to withholding under section 241(b)(3) of the Act, and to
protection under the Convention Against Torture without unduly
disrupting the operation of these special administrative removal
processes.
Unlike the broad class of arriving aliens who are subject to
expedited removal, these two classes of aliens are ineligible for
asylum. They may, however, be entitled to withholding of removal under
either section 241(b)(3) of the Act, or under the Convention Against
Torture, or to deferral of removal under Sec. 208.17(a). Because the
standard for showing entitlement to these forms of protection (a
probability of persecution or torture) is significantly higher than the
standard for asylum (a well-founded fear of persecution), the screening
standard adopted for initial consideration of withholding and deferral
requests in these contexts is also higher. In fact, the ``reasonable
fear'' screening standard is the same standard of proof used in asylum
eligibility determinations. That is, the alien must show that there is
a ``reasonable possibility'' that he or she would be persecuted or
tortured in the country of removal.
Under the new screening process, aliens in these streamlined
administrative removal proceedings who express a fear of persecution or
torture will be interviewed by an asylum officer to determine whether
they have a reasonable fear of persecution or torture. If they are
determined to have such a fear, they will be referred to an immigration
judge for a determination only as to their eligibility for withholding
of removal under either section 241(b)(3) of the Act or under the
Convention Against Torture, or for deferral of removal. Either the
alien or the Service may appeal the immigration judge's decision about
eligibility for withholding or deferral of removal to the Board of
Immigration Appeals. The Board will have jurisdiction to review only
the issue of eligibility for withholding or deferral of removal and may
not review issues related to the administratively issued order of
removal or to the reinstatement of the previous order of removal.
If the asylum officer determines that the alien does not have a
reasonable fear of persecution or torture, the alien will be afforded
the opportunity for an expeditious review of the negative screening
determination by an immigration judge. A new form I-898, Record of
Negative Reasonable Fear Finding and Request for Review by the
Immigration Judge, will be created on which the alien may request
review of a negative asylum officer screening determination. If the
immigration judge upholds the negative screening determination, the
alien may be removed without further review. If the immigration judge
reverses the asylum officer's screening determination, however, the
immigration judge will proceed to a determination only as to
eligibility for withholding of removal under section 241(b)(3) of the
Act or under the Convention Against Torture, or if applicable, deferral
of removal. Again, either the alien or the INS may appeal the
immigration judge's decision about withholding or deferral to the Board
of Immigration Appeals.
This reasonable fear screening process provides a formal mechanism,
previously unavailable, to make determinations under section 241(b)(3)
of the Act for aliens who are subject to administrative removal as
aggravated felons under section 238(b) of the Act, but who were
sentenced to an aggregate term of imprisonment of less than five years,
and thus are not conclusively barred from withholding under section
241(b)(3)(B) of the Act. This same mechanism will provide for
consideration of applications for withholding of removal under the
Convention Against Torture, and for consideration for deferral of
removal when necessary, in these cases. Thus the new screening process
will unify any consideration of applications for withholding of removal
under section 241(b)(3) of the Act and under the Convention Against
Torture in these cases.
Similarly, the new reasonable fear of persecution or torture
screening process will ensure proper consideration of applications for
withholding under section 241(b)(3) of the Act and under the Convention
Against Torture, and of deferral of removal when appropriate, in cases
subject to reinstatement of a previous removal order. Thus it replaces
current regulatory provisions at Sec. 241.8(d) for the consideration of
applications for withholding of removal under section 241(b)(3) of the
Act.
Form I-589 as application form for withholding of removal under the
Convention Against Torture
The Form I-589, Application for Asylum and for Withholding of
Removal, will serve as an application form for withholding of removal
under the Convention Against Torture, as well as for withholding of
removal under section 241(b)(3) of the Act. Supplemental instructions
for the Form I-598 will be issued to explain how an alien may use this
form to seek withholding of removal under the Convention. Under this
rule, consideration for deferral of removal must be undertaken when an
alien's application for withholding has been denied because of a bar to
withholding. Therefore, the Form I-589 will automatically trigger
deferral of removal where appropriate.
Use of the Form I-589 will avoid confusion by allowing aliens who
believe they are at risk of harm to apply for asylum, as well as these
other risk-based forms of protection, at the same time, using the same
form. It will also help to ensure that these claims are presented at
one time, thereby allowing resolution of these issues in the normal
course of proceedings.
Additionally, use of the Form I-589 will obviate the need for two
separate forms that, in many cases, will elicit similar information. In
many cases in which the alien applies both for asylum and withholding
of removal under the Act and for withholding under the Convention
Against Torture, the underlying facts supporting these claims will be
the same. Thus use of the I-589 will reduce the burden on the applicant
while also simplifying the adjudication process for the Service and
EOIR. In all cases, the same biographical background information will
be necessary. Additionally, the Form I-589 already contains questions
that would elicit the facts underlying an alien's fear of torture as
well as his or her fear of persecution.
[[Page 8486]]
For example, the form specifically asks the applicant whether he or she
fears torture upon return to a country, and also asks open-ended
questions designed to elicit any information about past mistreatment or
fear of mistreatment in the future. Thus the existing form can easily
be used for the adjudication of claims to protection under the
Convention Against Torture.
Good Cause Exception
The interim rule is effective 30 days from the date of publication
in the Federal Register, although the Department invites public comment
for 60 days from the date of publication. For the following reasons,
the Department finds that good cause exists under 5 U.S.C. 553(b)(B)
and (d)(3) for implementing this rule as an interim rule without the
prior notice and comment period ordinarily required under that
provision. First, section 2242(b) of the Foreign Affairs Reform and
Restructuring Act of 1998 requires that ``[n]ot later than 120 days
after the date of the enactment of this Act, the heads of the
appropriate agencies shall prescribe regulations to implement the
obligations of the United States under Article 3 of the [Convention
Against Torture].'' In order to comply with this statutory requirement,
it was necessary to dispense with the usual period of public notice and
comment; however, the Department will consider carefully all public
comments submitted in the course of preparation of a final rule.
Second, this rule provides a formal mechanism for requesting protection
from torture, and must be implemented expeditiously in order to allow
aliens who may require protection under the Convention Against Torture
to seek such protection under a regulatory system. While the current
informal procedure will remain in place during the next 30 days, it
allows for consideration of such requests only at the end of the
removal process, after all other avenues of appeal have been exhausted.
The interim rule will permit most aliens to raise their claims during
the course of regular removal proceedings, and thus many individuals
currently in proceedings before the immigration court will have the
opportunity to have their request for protection resolved more
expeditiously than under the current informal procedure. Therefore,
early implementation will be advantageous to those persons seeking
protection under the Convention Against Torture, and it is contrary to
the intent of the statute and the public interest to delay the
implementation of this rule until after a notice and comment period.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities because of the
following reason: This rule involves the process for adjudication of
certain requests for withholding of removal. This process affects
individuals and not small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one-year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the Provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866,
Regulatory Planning and Review. Accordingly, this regulation has been
submitted to the Office of Management and Budget for review.
Executive Order 12612
The regulation adopted 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
responsibility 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--Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirement contained in this rule has
been approved for use by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act. The OMB control number for this
collection is contained in 8 CFR part 299.5, Display of control
numbers.
List of Subjects
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), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 238
Air Carriers, Aliens, Government contracts, Maritime carriers.
8 CFR Part 240
Administrative practice and procedure, Immigration.
8 CFR Part 241
Aliens, Immigration.
8 CFR Part 253
Air carriers, Airmen, Aliens, Maritime carriers, Reporting and
recordkeeping requirements, Seamen.
8 CFR Part 507
Aliens, Terrorists.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 continues to read as follows:
[[Page 8487]]
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; section 203 of Pub. L. 105-100.
2. In Sec. 3.23, revise the paragraph heading and the first
sentence in paragraph (b)(4)(i) to read as follows:
Sec. 3.23 Reopening or Reconsideration before the Immigration Court.
* * * * *
(b) * * *
(4) * * *
(i) Asylum and withholding of removal. 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 asylum under section
208 of the Act or withholding of removal under section 241(b)(3) of the
Act or withholding of removal under the Convention Against Torture, 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 could not have been
discovered or presented at the previous proceeding. * * *
3. In Sec. 3.42, revise paragraphs (d) and (f) to read as follows:
Sec. 3.42 Review of credible fear determination.
* * * * *
(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 or withholding under section
241(b)(3) of the Act or withholding under the Convention Against
Torture.
* * * * *
(f) Decision. If an immigration judge determines that an alien has
a credible fear of persecution or torture, 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 and withholding of removal 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
or torture, 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.
* * * * *
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
4. 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.
5. In Sec. 103.12, revise paragraph (a)(5) to read as follows:
Sec. 103.12 Definition of the term ``lawfully present'' aliens for
purposes of applying for Title II social security benefits under Public
Law 104-193.
(a) * * *
(5) Applicants for asylum under section 208(a) of the Act and
applicants for withholding of removal under section 241(b)(3) of the
Act or under the Convention Against Torture who have been granted
employment authorization, and such applicants under the age of 14 who
have had an application pending for at least 180 days.
* * * * *
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
6. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
7. Revise Sec. 208.1 to read as follows:
Sec. 208.1 General.
(a) Applicability. Unless otherwise provided in this chapter, 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, or under the Convention Against
Torture, 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(d). Such applications are hereinafter
referred to 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
applicable.
(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, torture of persons in other countries, and other information
relevant to asylum determinations, and shall maintain a documentation
center with information on human rights conditions.
8. In Sec. 208.2, revise paragraphs (a), (b)(1)(ii), and (b)(3), to
read as follows:
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.
The Office of International Affairs shall also have initial
jurisdiction to consider applications for withholding of removal under
Sec. 208.31. An application that is complete within the meaning of
Sec. 208.3(c)(3) shall either be 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.
(b) * * *
(1) * * *
(ii) An alien stowaway who has been found to have a credible fear
of
[[Page 8488]]
persecution or torture pursuant to the procedures set forth in subpart
B of this part;
* * * * *
(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 crewmembers 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. Immigration judges
shall also have the authority to review reasonable fear determinations
referred to the Executive Office for Immigration Review under
Sec. 208.31.
9. In Sec. 208.4, revise paragraph (a) introductory text and
paragraph (b)(2) to read as follows:
Sec. 208.4 Filing the application.
* * * * *
(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 to the satisfaction of the Attorney General
that one of the exceptions in section 208(a)(2)(D) of the Act applies.
Such prohibition applies only to asylum applications under section 208
of the Act and not to applications for withholding of removal under
Sec. 208.16 of this part. If an applicant submits an asylum application
and it appears that one or more of the prohibitions contained in
section 208(a)(2) of the Act apply, an asylum officer or an immigration
judge shall review the application to determine if the application
should be rejected or denied. For the purpose of making determinations
under section 208(a)(2) of the Act, the following rules shall apply:
* * * * *
(b) * * *
(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 or in the case of an alien whose case has
been referred to the asylum office for purposes of conducting a
reasonable fear determination under Sec. 208.31 of this part.
* * * * *
10. In Sec. 208.5, revise paragraph (b)(1) introductory text to
read as follows:
Sec. 208.5 Special duties toward aliens in custody of the Service.
* * * * *
(b) * * *
(1) If an alien crewmember 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, or if
the alien expresses a fear of torture upon return to that country, 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.
* * * * *
11. In Sec. 208.11, revise paragraph (b)(2) to read as follows:
Sec. 208.11 Comments from the Department of State.
* * * * *
(b) * * *
(2) Information about whether persons who are similarly situated to
the applicant are persecuted or tortured in his or her country of
nationality or habitual residence and the frequency of such persecution
or torture; or
* * * * *
12. In Sec. 208.12, revise paragraph (a) to read as follows:
Sec. 208.12 Reliance on information compiled by other sources.
(a) In deciding an asylum application, or in deciding whether the
alien has a credible fear of persecution or torture pursuant to
Sec. 208.30 of this part, or a reasonable fear of persecution or
torture pursuant to Sec. 208.31, the asylum officer may rely on
material provided by the Department of State, the Office of
International Affairs, other Service offices, or other credible
sources, such as international organizations, private voluntary
agencies, news organizations, or academic institutions.
* * * * *
13. Section 208.13 revise paragraph (c)(1) to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(1) Applications filed on or after April 1, 1997. For applications
filed on or after April 1, 1997, an applicant shall not qualify for
asylum if section 208(a)(2) or 208(b)(2) of the Act applies to the
applicant. If the applicant is found to be ineligible for asylum under
either section 208(a)(2) or 208(b)(2) of the Act, the applicant shall
be considered for eligibility for withholding of removal under section
241(b)(3) of the Act. The applicant shall also be considered for
eligibility for withholding of removal under the Convention Against
Torture if the applicant requests such consideration or if the evidence
presented by the alien indicates that the alien may be tortured in the
country of removal.
14. Section 208.16 is amended as follows:
A. Revise the section heading;
B. Revise paragraph (a);
C. Revise paragraph (b) introductory test;
D. Redesignate paragraphs (c) and (d), as (d) and (e) respectively;
E. Add a new paragraph (c);
F. Revise newly redesignated paragraphs (d) and (e); and
G. Add a new paragraph (f) to read as follows:
Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the
Act and withholding of removal under the Convention Against Torture.
(a) Consideration of application for withholding of removal. An
asylum officer shall not decide whether the exclusion, deportation, or
removal of an alien to a country where the alien's life or freedom
would be threatened must be withheld, except in the case of an alien
who is otherwise eligible for asylum but is precluded from being
granted such status due solely to section 207(a)(5) of the Act. In
exclusion, deportation, or removal proceedings, an immigration judge
may adjudicate both an asylum claim and a request for withholding of
removal whether or not asylum is granted.
(b) Eligibility for withholding of removal under section 241(b)(3)
of the Act; burden of proof. The burden of proof is on the applicant
for withholding of removal under section 241(b)(3) of the Act to
establish that his or her life or freedom would be threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion. The
testimony of the applicant, if credible, may be sufficient to sustain
the burden
[[Page 8489]]
of proof without corroboration. The evidence shall be evaluated as
follows:
* * * * *
(c) Eligibility for withholding of removal under the Convention
Against Torture.
(1) For purposes of regulations under Title II of the Act,
``Convention Against Torture'' shall refer to the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention, as implemented by section
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub.
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture
contained in Sec. 208.18(a) of this part shall govern all decisions
made under regulations under Title II of the Act about the
applicability of Article 3 of the Convention Against Torture.
(2) The burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely than
not that he or she would be tortured if removed to the proposed country
of removal. The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.
(3) In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of removal, all
evidence relevant to the possibility of future torture shall be
considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human
rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country
of removal.
(4) In considering an application for withholding of removal under
the Convention Against Torture, the immigration judge shall first
determine whether the alien is more likely than not to be tortured in
the country of removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the country of removal,
the alien is entitled to protection under the Convention Against
Torture. Protection under the Convention Against Torture will be
granted either in the form of withholding of removal or in the form of
deferral of removal. An alien entitled to such protection shall be
granted withholding of removal unless the alien is subject to mandatory
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of
this section. If an alien entitled to such protection is subject to
mandatory denial of withholding of removal under paragraphs (d)(2) or
(d)(3) of this section, the alien's removal shall be deferred under
Sec. 208.17(a).
(d) Approval or denial of application. (1) General. Subject to
paragraphs (d)(2) and (d)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraphs (b) or (c) of this section.
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under the Convention Against Torture shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act
or, for applications for withholding of deportation adjudicated in
proceedings commenced prior to April 1, 1997, within section 243(h)(2)
of the Act as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger
to the community. If the evidence indicates the applicability of one or
more of the grounds for denial of withholding enumerated in the Act,
the applicant shall have the burden of proving by a preponderance of
the evidence that such grounds do not apply.
(3) Exception to the prohibition on withholding of deportation in
certain cases. Section 243(h)(3) of the Act, as added by section 413 of
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications
adjudicated in proceedings commenced before April 1, 1997, and in which
final action had not been taken before April 24, 1996. The discretion
permitted by that section to override section 243(h)(2) of the Act
shall be exercised only in the case of an applicant convicted of an
aggravated felony (or felonies) where he or she was sentenced to an
aggregate term of imprisonment of less than 5 years and the immigration
judge determines on an individual basis that the crime (or crimes) of
which the applicant was convicted does not constitute a particularly
serious crime. Nevertheless, it shall be presumed that an alien
convicted of an aggravated felony has been convicted of a particularly
serious crime. Except in the cases specified in this paragraph, the
grounds for denial of withholding of deportation in section 243(h)(2)
of the Act as it appeared prior to April 1, 1997, shall be deemed to
comply with the Protocol Relating to the Status of Refugees, Jan. 31,
1967, T.I.A.S. No. 6577.
(e) Reconsideration of discretionary denial of asylum. In the event
that an applicant is denied asylum solely in the exercise of
discretion, and the applicant is subsequently granted withholding of
deportation or removal under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him or her, the denial of asylum shall be
reconsidered. Factors to be considered will include the reasons for the
denial and reasonable alternatives available to the applicant such as
reunification with his or her spouse or minor children in a third
country.
(f) Removal to third country. Nothing in this section or
Sec. 208.17 shall prevent the Service from removing an alien to a third
country other than the country to which removal has been withheld or
deferred.
15. Section 208.17 is revised to read as follows:
Sec. 208.17 Deferral of removal under the Convention Against Torture.
(a) Grant of deferral of removal. An alien who: has been ordered
removed; has been found under Sec. 208.16(c)(3) to be entitled to
protection under the Convention Against Torture; and is subject to the
provisions for mandatory denial of withholding of removal under
Sec. 208.16(d)(2) or (d)(3), shall be granted deferral of removal to
the country where he or she is more likely than not to be tortured.
(b) Notice to Alien. (1) After an immigration judge orders an alien
described in paragraph (a) of this section removed, the immigration
judge shall inform the alien that his or her removal to the country
where he or she is more likely than not to be tortured shall be
deferred until such time as the deferral is terminated under this
section. The immigration judge shall inform the alien that deferral of
removal:
(i) Does not confer upon the alien any lawful or permanent
immigration status in the United States;
(ii) Will not necessarily result in the alien being released from
the custody of the Service if the alien is subject to such custody;
[[Page 8490]]
(iii) Is effective only until terminated; and
(iv) Is subject to review and termination if the immigration judge
determines that it is not likely that the alien would be tortured in
the country to which removal has been deferred, or if the alien
requests that deferral be terminated.
(2) The immigration judge shall also inform the alien that removal
has been deferred only to the country in which it has been determined
that the alien is likely to be tortured, and that the alien may be
removed at any time to another country where he or she is not likely to
be tortured.
(c) Detention of an alien granted deferral of removal under this
section. Nothing in this section shall alter the authority of the
Service to detain an alien whose removal has been deferred under this
section and who is otherwise subject to detention. In the case of such
an alien, decisions about the alien's release shall be made according
to part 241 of this chapter.
(d) Termination of deferral of removal.
(1) At any time while deferral of removal is in effect, the INS
District Counsel for the District with jurisdiction over an alien whose
removal has been deferred under paragraph (a) of this section may file
a motion with the Immigration Court having administrative control
pursuant to Sec. 3.11 of this chapter to schedule a hearing to consider
whether deferral of removal should be terminated. The Service motion
shall be granted if it is accompanied by evidence that is relevant to
the possibility that the alien would be tortured in the country to
which removal has been deferred and that was not presented at the
previous hearing. The Service motion shall not be subject to the
requirements for reopening in Secs. 3.2 and 3.23 of this chapter.
(2) The Immigration Court shall provide notice to the alien and the
Service of the time, place, and date of the termination hearing. Such
notice shall inform the alien that the alien may supplement the
information in his or her initial application for withholding of
removal under the Convention Against Torture and shall provide that the
alien must submit any such supplemental information within 10 calendar
days of service of such notice (or 13 calendar days if service of such
notice was by mail). At the expiration of this 10 or 13 day period, the
Immigration Court shall forward a copy of the original application, and
any supplemental information the alien or the Service has submitted, to
the Department of State, together with notice to the Department of
State of the time, place and date of the termination hearing. At its
option, the Department of State may provide comments on the case,
according to the provisions of Sec. 208.11 of this part.
(3) The immigration judge shall conduct a hearing and make a de
novo determination, based on the record of proceeding and initial
application in addition to any new evidence submitted by the Service or
the alien, as to whether the alien is more likely than not to be
tortured in the country to which removal has been deferred. This
determination shall be made under the standards for eligibility set out
in Sec. 208.16(c). The burden is on the alien to establish that it is
more likely than not that he or she would be tortured in the country to
which removal has been deferred.
(4) If the immigration judge determines that the alien is more
likely than not to be tortured in the country to which removal has been
deferred, the order of deferral shall remain in place. If the
immigration judge determines that the alien has not established that he
or she is more likely than not to be tortured in the country to which
removal has been deferred, the deferral of removal shall be terminated
and the alien may be removed to that country. Appeal of the immigration
judge's decision shall lie to the Board.
(e) Termination at the request of the alien.
(1) At any time while deferral of removal is in effect, the alien
may make a written request to the Immigration Court having
administrative control pursuant to Sec. 3.11 of this chapter to
terminate the deferral order. If satisfied on the basis of the written
submission that the alien's request is knowing and voluntary, the
immigration judge shall terminate the order of deferral and the alien
may be removed.
(2) If necessary the immigration judge may calendar a hearing for
the sole purpose of determining whether the alien's request is knowing
and voluntary. If the immigration judge determines that the alien's
request is knowing and voluntary, the order of deferral shall be
terminated. If the immigration judge determines that the alien's
request is not knowing and voluntary, the alien's request shall not
serve as the basis for terminating the order of deferral.
(f) Termination pursuant to Sec. 208.18(c). At any time while
deferral of removal is in effect, the Attorney General may determine
whether deferral should be terminated based on diplomatic assurances
forwarded by the Secretary of State pursuant to the procedures in
Sec. 208.18(c).
Secs. 208.18 through 208.22 [Redesignated as Secs. 208.19 through
208.23]
16. Sections 208.18 through 208.22 are redesignated as Secs. 208.19
through 208.23 respectively.
17. Section 208.18 is added to read as follows:
Sec. 208.18 Implementation of the Convention Against Torture.
(a) Definitions. The definitions in this subsection incorporate the
definition of torture contained in Article 1 of the Convention Against
Torture, subject to the reservations, understandings, declarations, and
provisos contained in the United States Senate resolution of
ratification of the Convention.
(1) Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
(2) Torture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment
or punishment that do not amount to torture.
(3) Torture does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. Lawful sanctions include
judicially imposed sanctions and other enforcement actions authorized
by law, including the death penalty, but do not include sanctions that
defeat the object and purpose of the Convention Against Torture to
prohibit torture.
(4) In order to constitute torture, mental pain or suffering must
be prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(ii) The administration or application, or threatened
administration or application, of mind altering substances or other
procedures calculated to disrupt profoundly the senses or the
personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to
death,
[[Page 8491]]
severe physical pain or suffering, or the administration or application
of mind altering substances or other procedures calculated to disrupt
profoundly the sense or personality.
(5) In order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering. An act
that results in unanticipated or unintended severity of pain and
suffering is not torture.
(6) In order to constitute torture an act must be directed against
a person in the offender's custody or physical control.
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.
(8) Noncompliance with applicable legal procedural standards does
not per se constitute torture.
(b) Applicability of Secs. 208.16(c) and 208.17(a).
(1) Aliens in proceedings on or after March 22, 1999. An alien who
is in exclusion, deportation, or removal proceedings on or after March
22, 1999 may apply for withholding of removal under Sec. 208.16(c),
and, if applicable, may be considered for deferral of removal under
Sec. 208.17(a).
(2) Aliens who were ordered removed, or whose removal orders became
final, before March 22, 1999. An alien under a final order of
deportation, exclusion, or removal that became final prior to March 22,
1999 may move to reopen proceedings to seek protection under
Sec. 208.16(c). Such motions shall be governed by Secs. 3.23 and 3.2 of
this chapter, except that the time and numerical limitations on motions
to reopen shall not apply and the alien shall not be required to
demonstrate that the evidence sought to be offered was unavailable and
could not have been discovered or presented at the former hearing. The
motion to reopen shall not be granted unless:
(i) The motion is filed within June 21, 1999; and
(ii) The evidence sought to be offered establishes a prima facie
case that the applicant's removal must be withheld or deferred under
Secs. 208.16(c) or 208.17(a).
(3) Aliens who, on March 22, 1999, have requests pending with the
Service for protection under Article 3 of the Convention Against
Torture.
(i) Except as otherwise provided, after March 22, 1999, the Service
will not:
(A) Consider, under its pre-regulatory administrative policy to
ensure compliance with the Convention Against Torture, whether Article
3 of that Convention prohibits the removal of an alien to a particular
country, or
(B) Stay the removal of an alien based on a request filed with the
Service for protection under Article 3 of that Convention.
(ii) For each alien who, on or before March 22, 1999, filed a
request with the Service for protection under Article 3 of the
Convention Against Torture, and whose request has not been finally
decided by the Service, the Service shall provide written notice that,
after March 22, 1999, consideration for protection under Article 3 can
be obtained only through the provisions of this rule.
(A) The notice shall inform an alien who is under an order of
removal issued by EOIR that, in order to seek consideration of a claim
under Secs. 208.16(c) or 208.17(a), such an alien must file a motion to
reopen with the immigration court or the Board of Immigration Appeals.
This notice shall be accompanied by a stay of removal, effective until
30 days after service of the notice on the alien. A motion to reopen
filed under this paragraph for the limited purpose of asserting a claim
under Secs. 208.16(c) or 208.17(a) shall not be subject to the
requirements for reopening in Secs. 3.2 and 3.23 of this chapter. Such
a motion shall be granted if it is accompanied by a copy of the notice
described in paragraph (b)(3)(ii) or by other convincing evidence that
the alien had a request pending with the Service for protection under
Article 3 of the Convention Against Torture on March 22, 1999. The
filing of such a motion shall extend the stay of removal during the
pendency of the adjudication of this motion.
(B) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 238(b) of the Act
or an exclusion, deportation, or removal order reinstated by the
Service under section 241(a)(5) of the Act that the alien's claim to
withholding of removal under Sec. 208.16(c) or deferral of removal
under Sec. 208.17(a) will be considered under Sec. 208.31.
(C) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 235(c) of the Act
that the alien's claim to protection under the Convention Against
Torture will be decided by the Service as provided in Sec. 208.18(d)
and 235.8(b)(4) and will not be considered under the provisions of this
part relating to consideration or review by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(4) Aliens whose claims to protection under the Convention Against
Torture were finally decided by the Service prior to March 22, 1999.
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3)
of this section do not apply to cases in which, prior to March 22,
1999, the Service has made a final administrative determination about
the applicability of Article 3 of the Convention Against Torture to the
case of an alien who filed a request with the Service for protection
under Article 3. If, prior to March 22, 1999, the Service determined
that an applicant cannot be removed consistent with the Convention
Against Torture, the alien shall be considered to have been granted
withholding of removal under Sec. 208.16(c), unless the alien is
subject to mandatory denial of withholding of removal under
Sec. 208.16(d)(2) or (d)(3), in which case the alien will be considered
to have been granted deferral of removal under 208.17(a). If, prior to
March 22, 1999, the Service determined that an alien can be removed
consistent with the Convention Against Torture, the alien will be
considered to have been finally denied withholding of removal under
Sec. 208.16(c) and deferral of removal under Sec. 208.17(a).
(c) Diplomatic assurances against torture obtained by the Secretary
of State.
(1) The Secretary of State may forward to the Attorney General
assurances that the Secretary has obtained from the government of a
specific country that an alien would not be tortured there if the alien
were removed to that country.
(2) If the Secretary of State forwards assurances described in
paragraph (c)(1) of this section to the Attorney General for
consideration by the Attorney General or her delegates under this
paragraph, the Attorney General shall determine, in consultation with
the Secretary of State, whether the assurances are sufficiently
reliable to allow the alien's removal to that country consistent with
Article 3 of the Convention Against Torture. The Attorney General's
authority under this paragraph may be exercised by the Deputy Attorney
General or by the Commissioner, Immigration and Naturalization Service,
but may not be further delegated.
(3) Once assurances are provided under paragraph (c)(2) of this
section, the alien's claim for protection under the Convention Against
Torture shall not be considered further by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(d) Cases involving aliens ordered removed under section 235(c) of
the Act. With respect to an alien terrorist or other alien subject to
administrative
[[Page 8492]]
removal under section 235(c) of the Act who requests protection under
Article 3 of the Convention Against Torture, the Service will assess
the applicability of Article 3 through the removal process to ensure
that a removal order will not be executed under circumstances that
would violate the obligations of the United States under Article 3. In
such cases, the provisions of Part 208 relating to consideration or
review by an immigration judge, the Board of Immigration Appeals, or an
asylum officer shall not apply.
(e) Judicial review of claims for protection from removal under
Article 3 of the Convention Against Torture.
(1) Pursuant to the provisions of section 2242(d) of the Foreign
Affairs Reform and Restructuring Act of 1998, there shall be no
judicial appeal or review of any action, decision, or claim raised
under the Convention or that section, except as part of the review of a
final order of removal pursuant to section 242 of the Act; provided
however, that any appeal or petition regarding an action, decision, or
claim under the Convention or under section 2242 of the Foreign Affairs
Reform and Restructuring Act of 1998 shall not be deemed to include or
authorize the consideration of any administrative order or decision, or
portion thereof, the appeal or review of which is restricted or
prohibited by the Act.
(2) Except as otherwise expressly provided, nothing in this
paragraph shall be construed to create a private right of action or to
authorize the consideration or issuance of administrative or judicial
relief.
18. Newly redesignated 208.19 is revised to read as follows:
Sec. 208.19 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. For purposes of this section, an asylum application is
frivolous if any of its material elements is deliberately fabricated.
Such finding shall only be made if the immigration judge or the Board
is satisfied that the applicant, during the course of the proceedings,
has had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim. For purposes of this section, a
finding that an alien filed a frivolous asylum application shall not
preclude the alien from seeking withholding of removal.
19. Newly redesignated Sec. 208.21 is revised to read as follows:
Sec. 208.21 Effect on exclusion, deportation, and removal proceedings.
(a) An alien who has been granted asylum may not be deported or
removed unless his or her asylum status is terminated pursuant to
Sec. 208.23 of this part. An alien in exclusion, deportation, or
removal proceedings who is granted withholding of removal or
deportation or deferral of removal may not be deported or removed to
the country to which his or her deportation or removal is ordered
withheld or deferred unless the withholding order is terminated
pursuant to Sec. 208.23 or deferral is terminated pursuant to
Sec. 208.17(d) or (e).
(b) When an alien's asylum status or withholding of removal or
deportation is terminated under this part, the Service shall initiate
removal proceedings under section 235 or 240 of the Act, as
appropriate, if the alien is not already in exclusion, deportation, or
removal proceedings or subject to a final order of removal. Removal
proceedings may also be in conjunction with a termination hearing
scheduled under Sec. 208.23(e).
20. Section 208.30 is amended by:
A. Revising paragraphs (b), (d) and (e); and by
B. Revising paragraphs (f)(1), and (f)(2), and (f)(3), to read as
follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
* * * * *
(b) Interview and procedure. The asylum officer, as defined in
section 235(b)(1)(E) of the Act, will conduct the interview in a
nonadversarial manner, separate and apart from the general public. At
the time of the interview, the asylum officer shall verify that the
alien has received Form M-444, Information about Credible Fear
Interview in Expedited Removal Cases. The officer shall also determine
that the alien has an understanding of the credible fear determination
process. The alien may be required to register his or her identity
electronically or through any other means designated by the Attorney
General. The alien may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, and may present
other evidence, if available. Such consultation shall be at no expense
to the Government and shall not unreasonably delay the process. Any
person or persons with whom the alien chooses to consult may be present
at the interview and may be permitted, in the discretion of the asylum
officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the
number of such persons who may be present at the interview and on the
length of statement or statements made. If the alien is unable to
proceed effectively in English, and if the asylum officer is unable to
proceed competently in a language chosen by the alien, the asylum
officer shall arrange for the assistance of an interpreter in
conducting the interview. The interpreter may not be a representative
or employee of the applicant's country of nationality or, if the
applicant is stateless, the applicant's country of last habitual
residence. The asylum officer shall create a summary of the material
facts as stated by the applicant. At the conclusion of the interview,
the officer shall review the summary with the alien and provide the
alien with an opportunity to correct errors therein. The asylum officer
shall create a written record of his or her determination, including a
summary of the material facts as stated by the applicant, any
additional facts relied on by the officer, and the officer's
determination of whether, in light of such facts, the alien has
established a credible fear of persecution or torture. The decision
shall not become final until reviewed by a supervisory asylum officer.
* * * * *
(d) Referral for an asylum hearing. If an alien, other than an
alien stowaway, is found to have a credible fear of persecution or
torture, the asylum officer will so inform the alien and issue a Form
I-862, Notice to Appear, for full consideration of the asylum and
withholding of removal claim in proceedings under section 240 of the
Act. Parole of the alien may only be considered in accordance with
section 212(d)(5) of the Act and Sec. 212.5 of this chapter. If an
alien stowaway is found to have a credible fear of persecution or
torture, the asylum officer will so inform the alien and issue a Form
I-863, Notice to Referral to Immigration Judge, for full consideration
of the asylum and withholding of removal claim in proceedings under
Sec. 208.2(b)(1).
(e) Removal of aliens with no credible fear of persecution or
torture. If an alien is found not to have a credible fear of
persecution or torture, the asylum officer shall provide the alien with
a written notice of decision and inquire whether the alien wishes to
have an immigration judge review the negative decision, using Form I-
869, Record of Negative Credible Fear Finding and
[[Page 8493]]
Request for Review by Immigration Judge, on which the alien shall
indicate whether he or she desires such review. If the alien is not a
stowaway, the officer shall also order the alien removed and issue a
Form I-860, Notice and Order of Expedited Removal. If the alien is a
stowaway and the alien does not request a review by an immigration
judge, the asylum officer shall also refer the alien to the district
director for completion of removal proceedings in accordance with
section 235(a)(2) of the Act.
(f) * * *
(1) If the immigration judge concurs with the determination of the
asylum officer that the alien does not have a credible fear of
persecution or torture, the case shall be returned to the Service for
removal of the alien. The immigration judge's decision is final and may
not be appealed.
(2) If the immigration judge finds that the alien, other than an
alien stowaway, possesses a credible fear of persecution or torture,
the immigration judge shall vacate the order of the asylum officer
issued on Form I-860 and the Service may commence removal proceedings
under section 240 of the Act, during which time the alien may file an
application for asylum and withholding of removal in accordance with
Sec. 208.4(b)(3)(i).
(3) If the immigration judge finds that an alien stowaway possesses
a credible fear of persecution or torture, the alien shall be allowed
to file an application for asylum and withholding of removal before the
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The
immigration judge shall decide the application as provided in that
section. Such decision may be appealed by either the stowaway or the
Service to the Board of Immigration Appeals. If and when a denial of
the application for asylum or withholding of removal becomes final, the
alien shall be removed from the United States in accordance with
section 235(a)(2) of the Act. If and when an approval of the
application for asylum or withholding of removal becomes final, the
Service shall terminate removal proceedings under section 235(a)(2) of
the Act.
21. In Subpart B, Sec. 208.31 is added to read as follows:
Sec. 208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
(a) Jurisdiction. This section shall apply to any alien ordered
removed under section 238(b) of the Act or whose deportation,
exclusion, or removal order is reinstated under section 241(a)(5) of
the Act who, in the course of the administrative removal or
reinstatement process, expresses a fear of returning to the country of
removal. The Service has exclusive jurisdiction to make reasonable fear
determinations, and EOIR has exclusive jurisdiction to review such
determinations.
(b) Initiation of reasonable fear determination process. Upon
issuance of a Final Administrative Removal Order under Sec. 238.1 of
this chapter, or notice under Sec. 241.8(b) of this chapter that an
alien is subject to removal, an alien described in paragraph (a) of
this section shall be referred to an asylum officer for a reasonable
fear determination. In the absence of exceptional circumstances, this
determination will be conducted within 10 days of the referral.
(c) Interview and Procedure. The asylum officer shall conduct the
interview in a non-adversarial manner, separate and apart from the
general public. At the time of the interview, the asylum officer shall
determine that the alien has an understanding of the reasonable fear
determination process. The alien may be represented by counsel or an
accredited representative at the interview, at no expense to the
Government, and may present evidence, if available, relevant to the
possibility of persecution or torture. The alien's representative may
present a statement at the end of the interview. The asylum officer, in
his or her discretion, may place reasonable limits on the number of
persons who may be present at the interview and the length of the
statement. If the alien is unable to proceed effectively in English,
and if the asylum officer is unable to proceed competently in a
language chosen by the alien, the asylum officer shall arrange for the
assistance of an interpreter in conducting the interview. The
interpreter may not be a representative or employee of the applicant's
country or nationality, or if the applicant is stateless, the
applicant's country of last habitual residence. The asylum officer
shall create a summary of the material facts as stated by the
applicant. At the conclusion of the interview, the officer shall review
the summary with the alien and provide the alien with an opportunity to
correct errors therein. The asylum officer shall create a written
record of his or her determination, including a summary of the material
facts as stated by the applicant, any additional facts relied on by the
officers, and the officer's determination of whether, in light of such
facts, the alien has established a reasonable fear of persecution or
torture. The alien shall be determined to have a reasonable fear of
persecution or torture if the alien establishes a reasonable
possibility that he or she would be persecuted on account of his or her
race, religion, nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she would be
tortured in the country of removal. For purposes of the screening
determination, the bars to eligibility for withholding of removal under
section 241(b)(3)(B) of the Act shall not be considered.
(d) Authority. Asylum officers conducting screening determinations
under this section shall have the authority described in Sec. 208.9(c).
(e) Referral to Immigration Judge. If an asylum officer determines
that an alien described in this section has a reasonable fear of
persecution or torture, the officer shall so inform the alien and issue
a Form I-863, Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal only. Such
cases shall be adjudicated by the immigration judge in accordance with
the provisions of Sec. 208.16 within 10 days of the issuance of the I-
863. Appeal of the immigration judge's decision shall lie to the Board
of Immigration Appeals.
(f) Removal of aliens with no reasonable fear of persecution or
torture. If the asylum officer determines that the alien has not
established a reasonable fear of persecution or torture, the asylum
officer shall inform the alien in writing of the decision and shall
inquire whether the alien wishes to have an immigration judge review
the negative decision, using Form I-898, Record of Negative Reasonable
Fear Finding and Request for Review by Immigration Judge, on which the
alien shall indicate whether he or she desires such review.
(g) Review by immigration judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to review by an
immigration judge upon the alien's request. If the alien requests such
review, the asylum officer shall serve him or her with a Form I-863.
The record of determination, including copies of the Form I-863, the
asylum officer's notes, the summary of the material facts, and other
materials upon which the determination was based shall be provided to
the immigration judge with the negative determination. Upon review of
the asylum officer's negative reasonable fear determination:
(1) If the immigration judge concurs with the asylum officer's
determination that the alien does not have a reasonable
[[Page 8494]]
fear of persecution or torture, the case shall be returned to the
Service for removal of the alien. No appeal shall lie from the
immigration judge's decision.
(2) If the immigration judge finds that the alien has a reasonable
fear of persecution or torture, the alien may submit Form I-589,
Application for Asylum and Withholding of Removal.
(i) The immigration judge shall consider only the alien's
application for withholding of removal under Sec. 208.16 and shall
determine whether the alien's removal to the country of removal must be
withheld or deferred.
(ii) Appeal of the immigration judge's decision whether removal
must be withheld or deferred lies to the Board of Immigration Appeals.
If the alien or the Service appeals the immigration judge's decision,
the Board shall review only the immigration judge's decision regarding
the alien's eligibility for withholding or deferral of removal under
Sec. 208.16.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
22. The authority citation for part 235 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
23. Section 235.1 is amended by revising paragraph (d)(4) to read
as follows:
Sec. 235.1 Scope of examination.
* * * * *
(d) * * *
(4) An alien stowaway is not an applicant for admission and may not
be admitted to the United States. A stowaway shall be removed from the
United States under section 235(a)(2) of the Act. The provisions of
section 240 of the Act are not applicable to stowaways, nor is the
stowaway entitled to further hearing or review of the removal, except
that an alien stowaway who indicates an intention to apply for asylum,
or expresses a fear of persecution, a fear of torture, or a fear of
return to the country of proposed removal shall be referred to an
asylum officer for a determination of credible fear of persecution or
torture in accordance with section 235(b)(1)(B) of the Act and
Sec. 208.30 of this chapter. An alien stowaway who is determined to
have a credible fear of persecution or torture shall have his or her
asylum application adjudicated in accordance with Sec. 208.2(b)(2) of
this chapter.
* * * * *
24. In section 235.3, revise paragraph (b)(4) introductory text and
paragraph (b)(4)(i)(D) to read as follows:
Sec. 235.3 Inadmissible aliens and expedited removal.
* * * * *
(b) * * *
(4) Claim of asylum or fear of persecution or torture. If an alien
subject to the expedited removal provisions indicates an intention to
apply for asylum, or expresses a fear of persecution, a fear of
torture, or a fear of return to his or her country, the inspecting
officer shall not proceed further with removal of the alien until the
alien has been referred for an interview by an asylum officer in
accordance with Sec. 208.30 of this chapter to determine if the alien
has a credible fear of persecution or torture. The examining
immigration officer shall record sufficient information in the sworn
statement to establish and record that the alien has indicated such
intention, fear, or concern, and to establish the alien's
inadmissibility.
(i) * * *
(D) The consequences of failure to establish a credible fear of
persecution or torture.
* * * * *
25. In Sec. 235.6, revise paragraphs (a)(1)(ii) and (iii), and
paragraph (a)(2)(i) to read as follows:
Sec. 235.6 Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an asylum officer determines that an alien in expedited
removal proceedings has a credible fear of persecution or torture and
refers the case to the immigration judge for consideration of the
application for asylum.
(iii) If the immigration judge determines that an alien in
expedited removal proceedings has a credible fear of persecution or
torture and vacates the expedited removal order issued by the asylum
officer.
* * * * *
(2) * * *
(i) If an asylum officer determines that an alien does not have a
credible fear of persecution or torture, and the alien requests a
review of that determination by an immigration judge; or
* * * * *
26. In Sec. 235.8, add a new paragraph (b)(4), to read as follows:
Sec. 235.8 Inadmissibility on security and related grounds.
* * * * *
(b) * * *
(4) The Service shall not execute a removal order under this
section under circumstances that violate section 241(b)(3) of the Act
or Article 3 of the Convention Against Torture. The provisions of part
208 of this chapter relating to consideration or review by an
immigration judge, the Board of Immigration Appeals, or an asylum
officer shall not apply.
* * * * *
PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
27. The authority citation for part 238 continues to read s
follows:
Authority: 8 U.S.C. 1228; 8 CFR part 2.
28. In Sec. 238.1, revise paragraphs (b)(2)(i) and (c)(1), and add
new paragraph (f)(3) to read as follows:
Sec. 238.1 Proceeding under section 238(b) of the Act.
* * * * *
(b) * * *
(2) Notice.
(i) Removal proceedings under section 238(b) of the Act shall
commence upon personal service of the Notice of Intent upon the alien,
as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of this chapter.
The Notice of Intent shall set forth the preliminary determinations and
inform the alien of the Service's intent to issue a Form I-851A, Final
Administrative Removal Order, without a hearing before an immigration
judge. The Notice of Intent shall constitute the charging document. The
Notice of Intent shall include allegations of fact and conclusions of
law. It shall advise that the alien: has the privilege of being
represented, at no expense to the government, by counsel of the alien's
choosing, as long as counsel is authorized to practice in removal
proceedings; may request withholding of removal to a particular country
if he or she fears persecution or torture in that country; may inspect
the evidence supporting the Notice of Intent; may rebut the charges
within 10 calendar days after service of such Notice (or 13 calendar
days if service of the Notice was by mail).
* * * * *
(c) * * *
(1) Time for response. The alien will have 10 calendar days from
service of the Notice of Intent or 13 calendar days if service is by
mail, to file a response to the Notice of Intent. In the response, the
alien may: designate his or her choice of country for removal; submit a
written response rebutting the allegations supporting the charge and/or
requesting the opportunity to review the Government's evidence; and/or
submit a statement indicating an intention to request withholding of
removal under 8 CFR 208.16 of this chapter, and/or request in writing
an extension of time
[[Page 8495]]
for response, stating the specific reasons why such an extension is
necessary.
* * * * *
(f) * * *
(3) Withholding of removal. If the alien has requested withholding
of removal under Sec. 208.16 of this chapter, the deciding officer
shall, upon issuance of a Final Administrative Removal Order,
immediately refer the alien's case to an asylum officer to conduct a
reasonable fear determination in accordance with Sec. 208.31 of this
chapter.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
29. The authority citation for part 240 continues to read as
follows:
Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111
Stat. 2160, 2193); 8 CFR part 2.
30. In Sec. 240.1, revise paragraph (a) to read as follows:
Sec. 240.1 Immigration Judges.
(a) Authority. (1) In any removal proceeding pursuant to section
240 of the Act, the immigration judge shall have the authority to:
(i) Determine removability pursuant to section 240(a)(1) of the
Act; to make decisions, including orders of removal as provided by
section 240(c)(1)(A) of the Act;
(ii) To determine applications under sections 208, 212(a)(2)(F),
212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g),
212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H),
237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act and
section 202 of Pub. L. 105-100;
(iii) To order withholding of removal pursuant to section 241(b)(3)
of the Act and pursuant to the Convention Against Torture; and
(iv) To take any other action consistent with applicable law and
regulations as may be appropriate.
(2) In determining cases referred for further inquiry, immigration
judges shall have the powers and authority conferred upon them by the
Act and this chapter. Subject to any specific limitation prescribed by
the Act and this chapter, immigration judges shall also exercise the
discretion and authority conferred upon the Attorney General by the Act
as is appropriate and necessary for the disposition of such cases. An
immigration judge may certify his or her decision in any case under
section 240 of the Act to the Board of Immigration Appeals when it
involves an unusually complex or novel question of law or fact. Nothing
contained in this part shall be construed to diminish the authority
conferred on immigration judges under sections 101(b)(4) and 103 of the
Act.
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
31. The authority citation for part 241 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
32. In Sec. 241.8, revise paragraph (d) to read as follows:
Sec. 241.8 Reinstatement of removal orders.
* * * * *
(d) Exception for withholding of removal. If an alien whose prior
order of removal has been reinstated under this section expresses a
fear of returning to the country designated in that order, the alien
shall be immediately referred to an asylum officer for an interview to
determine whether the alien has a reasonable fear of persecution or
torture pursuant to Sec. 208.31 of this chapter.
* * * * *
33. In Sec. 241.11, revise paragraph (d)(1) to read as follows:
Sec. 241.11 Detention and removal of stowaways.
* * * * *
(d) Stowaways claiming asylum--
(1) Referral for credible fear determination. A stowaway who
indicates an intention to apply for asylum or a fear of persecution or
torture upon return to his or her native country or country of last
habitual residence (if not a national of any country) shall be removed
from the vessel or aircraft of arrival in accordance with Sec. 208.5(b)
of this chapter. The immigration officer shall refer the alien to an
asylum officer for a determination of credible fear in accordance with
section 235(b)(1)(B) of the Act and Sec. 208.30 of this chapter. The
stowaway shall be detained in the custody of the Service pending the
credible fear determination and any review thereof. Parole of such
alien, in accordance with section 212(d)(5) of the Act, 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. A stowaway who
has established a credible fear of persecution or torture in accordance
with Sec. 208.30 of this chapter may be detained or paroled pursuant to
Sec. 212.5 of this chapter during any consideration of the asylum
application. In determining whether to detain or parole the alien, the
Service shall consider the likelihood that the alien will abscond or
pose a security risk.
* * * * *
PART 253--PAROLE OF ALIEN CREWMEN
34. The authority citation in part 253 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.
35. In Sec. 253.1, revise paragraph (f) to read as follows:
Sec. 253.1 Parole.
* * * * *
(f) Crewman, stowaway, or alien removable under section 235(c)
alleging persecution or torture. Any alien crewman, stowaway, or alien
removable under section 235(c) of the Act who alleges that he or she
cannot return to his or her country of nationality or last habitual
residence (if not a national of any country) because of fear of
persecution in that country on account of race, religion, nationality,
membership in a particular social group, or political opinion, or
because of fear of torture is eligible to apply for asylum or
withholding of removal under 8 CFR part 208. Service officers shall
take particular care to ensure that the provisions of Sec. 208.5(b) of
this chapter regarding special duties toward aliens aboard certain
vessels are closely followed.
* * * * *
36. Add a new part 507 to read as follows:
[[Page 8496]]
PART 507--ALIEN TERRORIST REMOVAL PROCEDURES
Sec. 507.1 Eligibility for Protection under the Convention Against
Torture.
A removal order under Title V of the Act shall not be executed in
circumstances that would violate Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention, as implemented by section
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.
L. 105-277. Convention-based claims by aliens subject to removal under
this Title shall be determined by the Attorney General, in consultation
with the Secretary of State.
Authority: Pub. L. 105-277, 112 Stat. 2681.
Dated: February 13, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-4140 Filed 2-18-99; 8:45 am]
BILLING CODE 4410-10-P
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