Editorial Note on Part 1240
Editorial Note: Nomenclature changes to part 1240 appear at 68 FR 9846, Feb. 28, 2003, and at 68 FR 10355, Mar. 3, 2003.

§ 1240.33 Applications for asylum or withholding of deportation. ( a ) If the alien expresses fear of persecution or harm upon return to his or her country of origin or to a country to which the alien may be deported after a determination of excludability from the United States pursuant to this subpart, and the alien has not been referred to the immigration judge by an asylum officer in accordance with § 1208.14(b) of this chapter, the immigration judge shall: ( 1 ) Advise the alien that he or she may apply for asylum in the United States or withholding of deportation to that other country; and
( 2 ) Make available the appropriate application forms.
( b ) An application for asylum or withholding of deportation must be filed with the Immigration Court, pursuant to § 1208.4(b) of this chapter. Upon receipt of an application, the Immigration Court may forward a copy to the Department of State pursuant to § 1208.11 of this chapter and shall calendar the case for a hearing. The reply, if any, from the Department of State, unless classified under an applicable Executive Order, shall be given to both the applicant and to DHS counsel and shall be included in the record.
( c ) Applications for asylum or withholding of deportation so filed will be decided by the immigration judge pursuant to the requirements and standards established in 8 CFR part 1208 after an evidentiary hearing that is necessary to resolve material factual issues in dispute. An evidentiary hearing extending beyond issues related to the basis for a mandatory denial of the application pursuant to § 1208.13(c) of this chapter is not necessary once the immigration judge has determined that such denial is required. ( 1 ) Evidentiary hearings on applications for asylum or withholding of deportation will be closed to the public unless the applicant expressly requests that it be open pursuant to § 1236.3 of this chapter.
( 2 ) Nothing in this section is intended to limit the authority of the immigration judge properly to control the scope of any evidentiary hearing.
( 3 ) During the exclusion hearing, the applicant shall be examined under oath on his or her application and may present evidence and witnesses on his or her own behalf. The applicant has the burden of establishing that he or she is a refugee as defined in section 101(a)(42) of the Act pursuant to the standard set forth in § 1208.13 of this chapter.
( 4 ) The DHS counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order, provided the immigration judge or the Board has determined that such information is relevant to the hearing. The applicant shall be informed when the immigration judge receives such classified information. The agency that provides the classified information to the immigration judge may provide an unclassified summary of the information for release to the applicant whenever it determines it can do so consistently with safeguarding both the classified nature of the information and its source. The summary should be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence. A decision based in whole or in part on such classified information shall state that such information is material to the decision.
( d ) The decision of an immigration judge to grant or deny asylum or withholding of deportation shall be communicated to the applicant and to the DHS counsel for the government. An adverse decision will state why asylum or withholding of deportation was denied.
[62 FR 10367, Mar. 6, 1997, as amended at 78 FR 19080, Mar. 29, 2013; 86 FR 70724, Dec. 13, 2021]