69490 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

§ 212.5 Parole of aliens into the United 

States.

* * * * *

(e) * * * 

(2) * * * 

(iii) Any alien granted parole into the 

United States so that he or she may 

transit through the United States in the 

course of removal from Canada shall 

have his or her parole status terminated 

upon notice, as specified in 8 CFR 

212.5(e)(2)(i), if he or she makes known 

to an immigration officer of the United 

States a fear of persecution or an 

intention to apply for asylum. Upon 

termination of parole, any such alien 

shall be regarded as an arriving alien, 

and processed accordingly by the 

Department of Homeland Security.

* * * * *

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION

■ 6. The authority citation for part 235 

continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 

published January 2, 2004), 1201, 1224, 1225, 

1226, 1228, 1365a note, 1379, 1731–32.7.

■ 7. Section 235.3 is amended by 

revising the first sentence of paragraph 

(b)(4) to read as follows:

§ 235.3 Inadmissible aliens and expedited 

removal.

* * * * *

(b) * * * 

(4) * * * If an alien subject to the 

expedited removal provisions indicates 

an intention to apply for asylum, or 

expresses a fear of persecution or 

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 8 CFR 208.30. * * *

* * * * *

Dated: November 19, 2004. 

Tom Ridge, 

Secretary of Homeland Security.

[FR Doc. 04–26239 Filed 11–26–04; 8:45 am] 

BILLING CODE 4410–10–P

DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1208, 1212, 1235, 

and 1240 

[EOIR No. 142F; AG Order No. 2740–2004] 

RIN 1125–AA46 

Asylum Claims Made by Aliens 

Arriving From Canada at Land Border 

Ports-of-Entry

AGENCY: Executive Office for 

Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This rule adopts without 

substantial change the proposed rule to 

implement the December 5, 2002, 

Agreement Between the Government of 

the United States and the Government 

of Canada For Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Counties 

(‘‘bilateral Agreement with Canada’’ or 

‘‘Agreement’’). The Agreement bars 

certain aliens who are arriving from 

Canada, or in transit during removal 

from Canada, from applying for asylum 

and related protections in the United 

States. In the context of expedited 

removal proceedings, the Department of 

Homeland Security (‘‘DHS’’) will 

conduct a threshold screening interview 

to determine whether the Agreement 

applies to an alien. The DHS final rule 

is published elsewhere in this Federal 

Register. The role of the Executive 

Office of Immigration Review (‘‘EOIR’’) 

is limited to an evaluation of how the 

Agreement applies to aliens whom DHS 

has chosen to place in removal 

proceedings.

DATES: This rule is effective December 

29, 2004.

FOR FURTHER INFORMATION CONTACT:

Mary Beth Keller, General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041, telephone 

(703) 305–0470.

SUPPLEMENTARY INFORMATION: 

Introduction 

On March 8, 2004, the Department of 

Justice (‘‘Department’’) and DHS 

promulgated proposed rules 

implementing the Agreement. See 69 FR 

10627 (March 8, 2004). This final rule 

adopts the Department’s proposed rule 

without significant change. The 

proposed rule described procedures 

implementing the Agreement in removal 

proceedings under section 240 of the 

Immigration and Nationality Act 

(‘‘Act’’). 

The Agreement covers certain aliens 

who are arriving at U.S.-Canada land 

border ports-of-entry or arriving in 

transit through the U.S. during removal 

by the Canadian government and who 

express a fear of persecution or torture. 

Subject to several specific exceptions, 

the Agreement provides for the United 

States to return such arriving aliens to 

Canada, the country of last presence, to 

seek protection under Canadian law, 

rather than applying in the United 

States for the protective claims of 

asylum, withholding of removal, or 

protection under the United Nations 

Convention Against Torture and Other 

Cruel, Inhuman, or Degrading Treatment 

or Punishment (‘‘Convention Against 

Torture’’ or ‘‘CAT’’). Therefore, aliens 

covered by the Agreement will be 

allowed to seek asylum and related 

protections in one country or the other, 

but not in both. 

The Agreement specifically 

recognizes that Canada offers a generous 

system of refugee protection, and has a 

tradition of assisting refugees and 

displaced persons abroad. The 

Agreement also ensures that asylum 

seekers returned to Canada will have 

access to a full and fair procedure for 

determining their protection claims 

before they can be removed to a third 

country. 

As implemented in the United States, 

the Agreement will operate as follows. 

First, a United States Citizenship and 

Immigration Services (‘‘USCIS’’) asylum 

officer will conduct a threshold 

screening interview in the context of 

expedited removal proceedings. The 

DHS final rule, published elsewhere in 

this edition of the Federal Register, and 

the DHS proposed rule, published at 69 

FR 10620 (March 8, 2004), address this 

process in more detail. To summarize, 

the asylum officer will conduct a 

threshold screening interview to 

determine whether an arriving alien 

who is subject to the Agreement meets 

any of its exceptions, or whether the 

alien should be returned to Canada for 

consideration of his or her protection 

claims in that country. 

If the asylum officer determines that 

the alien qualifies for an exception to 

the Agreement, the asylum officer will 

then proceed immediately to a 

consideration of whether the alien has 

a credible fear of persecution or torture 

if returned to his or her country. The 

existing credible fear process of section 

235(b) of the Act will apply to those 

aliens, including the potential for 

review by an immigration judge. 

On the other hand, if the asylum 

officer determines that an arriving alien 

does not meet an exception to the 

Agreement and should be returned to 

Canada for consideration of his or her 

asylum or other protection claims under 

Canadian law, the asylum officer’s 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69491

1The Department notes that the public was 

provided an opportunity to express their views 

about the proposed Agreement during a meeting at 

the former Immigration and Naturalization Service. 

See 67 FR 46212 (July 12, 2002). The Agreement is 

now final.

decision will not be reviewed by an 

immigration judge. These aliens are not 

eligible to apply for asylum via the 

credible fear process, by operation of the 

Agreement and section 208(a)(2)(A) of 

the Act. 

Finally, this rule recognizes that DHS 

may choose, in certain cases, to place an 

arriving alien into removal proceedings 

under section 240 of the Act, rather than 

expedited removal under section 235 of 

the Act. The immigration judges will 

apply the terms of the Agreement with 

respect to the alien. In that case, if the 

immigration judge determines that the 

Agreement is applicable and orders the 

alien removed, the alien will be 

returned to Canada to seek protection 

under Canadian law. This rule also 

provides that aliens whom DHS places 

in removal proceedings and who are 

ineligible to apply for protection by 

operation of the Agreement may, 

nevertheless, apply for any other form of 

relief from removal for which they may 

be eligible. See 8 CFR 1240.11(g)(4). 

Public Comments 

The public was provided a 60-day 

comment period that ended on May 7, 

2004. The Department received 

comments from the United Nations High 

Commissioner for Refugees, three nongovernmental organizations, and an 

interested individual. The comments 

covered a broad range of issues, and 

included arguments for both expanding 

the rule, and for making it more 

restrictive. The comments also included 

some general opposition to the 

Agreement itself.1 The DHS final rule 

published elsewhere in this edition of 

the Federal Register addresses public 

comments received in response to the 

DHS proposed rule.

Several commenters asserted that 

there should be a provision permitting 

independent review of an asylum 

officer’s negative threshold 

determination, or that the evaluation 

should be conducted as part of the 

credible fear determination, which 

would include review by an 

immigration judge. In contrast, one 

commenter took the position that 

positive threshold determinations 

should be automatically reviewed by an 

immigration judge, but there should be 

no review of negative determinations. 

Other comments related to the 

procedures to be applied when the 

Agreement is applied in removal 

proceeding under section 240 of the Act. 

Several commenters were concerned 

about precluding aliens covered by the 

Agreement from applying for 

withholding of removal and protection 

under the Convention Against Torture. 

The commenters also raised issues 

related to the administration of the 

Agreement’s exceptions, procedures for 

asylum seekers returned to the United 

States under the Agreement, requests for 

reconsideration of decisions made by 

the Canadian government to return 

asylum seekers to the United States, the 

inadmissibility of aliens subsequent to 

removal to Canada, and the possibility 

of accepting motions to reopen or 

reconsider filed by asylum seekers after 

they are returned to Canada. 

These and other comments about the 

proposed rule are summarized by 

subject matter and responded to below. 

After careful review and consideration 

of all comments, the Department will 

retain the structure of the proposed rule 

without modification except for a few 

minor technical changes and 

corrections. 

A. The Threshold Screening Interview 

As outlined in the DHS proposed rule 

and summarized above, the Agreement 

will be implemented by DHS in 

expedited removal proceedings by 

means of a ‘‘threshold screening 

interview.’’ During this interview, an 

asylum officer will question aliens who 

are subject to the Agreement to 

determine whether they meet one of the 

Agreement’s exceptions. See 8 CFR 

208.30(e)(6). Aliens in expedited 

removal proceedings who do not meet 

one of the exceptions will be returned 

to Canada without initiation of the 

credible fear process or involvement of 

the Department’s immigration judges. 

Several commenters asserted that the 

asylum officer’s decision in the 

threshold screening interview should be 

subject to independent review by an 

immigration judge. The Department 

declines to adopt this suggestion. 

In the supplementary information to 

the Department’s proposed rule, the 

Department explained that, compared to 

the myriad of issues that can arise in a 

credible fear interview, the matters in a 

threshold screening interview are 

narrow in scope. See 69 FR at 10630. 

The commenters contest this 

characterization, and assert that many 

complicated issues could arise. 

Specifically, the commenters gave 

examples of age determination of 

‘‘unaccompanied minors,’’ and of 

whether an asylum seeker has a 

qualifying relative under the relevant 

Agreement exceptions.

The Department remains confident 

that asylum officers will be able to 

adequately address the issues that could 

arise during the threshold screening 

interview, and that further review by an 

immigration judge is unnecessary, 

regardless of whether the ultimate 

determination is positive or negative. 

Asylum officers are trained personnel 

who must regularly make factual and 

legal determinations. Additionally, the 

DHS final rule has been amended to 

require that a supervisory asylum officer 

must concur in any negative threshold 

determination by an asylum officer. 

These requirements ensure a 

comprehensive review at the screening 

level, and one which comports with due 

process. 

Relatedly, several commenters 

asserted that any determination under 

the Agreement should be part of the 

credible fear interview process, and that 

the proposed screening process would 

controvert the existing statutory and 

regulatory scheme governing the 

credible fear process. The commenters 

argue that an assessment under the 

Agreement is really a question of 

eligibility for asylum and related relief, 

and, under current 8 CFR 208.30(e), 

once credible fear is established, any 

question of eligibility for relief must 

occur in removal proceedings. 

The Department has concluded that 

the threshold screening interview is not 

inconsistent with the Immigration and 

Nationality Act. See 8 U.S.C. 

1158(d)(5)(B). The threshold factual 

determinations under the Agreement—

e.g., whether the alien is under the age 

of 18 or has a qualifying relative in the 

United States—relate only to the 

applicability of the terms of the 

Agreement, which is expressly 

authorized by section 208(a)(2)(A) of the 

Act, not to a determination whether the 

alien has suffered past persecution or 

faces future persecution or torture if 

returned to his or her country. In short, 

the purpose of the determinations under 

the Agreement is not to evaluate the 

merits of the alien’s claims for asylum 

or other protections, but instead relate 

to which forum will consider the merits 

of those claims. There is no requirement 

under the Agreement that an 

immigration judge review a decision 

that an alien is ineligible to apply for 

asylum in the United States. An asylum 

officer’s determination that the alien 

should be returned to Canada under the 

Agreement means that the alien will 

then pursue his or her protection claims 

in Canada under Canadian law rather 

than in the United States, pursuant to 

section 208(a)(2)(A). Although the 

current version of the regulations 

referenced by commenters does not 

permit asylum officers to apply the 

asylum bars during the credible fear 

69492 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

process, the threshold screening process 

created in the DHS rules is separate and 

distinct from the credible fear process. 

Further, with respect to this concern 

about the inconsistency between the 

‘‘threshold screening interview’’ and 

existing regulatory provisions, the 

Department and DHS rules, after notice 

to the public and opportunity for 

comment, are amending these existing 

regulations under authorized 

rulemaking procedures. 

The Department also notes that, under 

the DHS rule, once an alien satisfies any 

of the exceptions under the Agreement, 

an asylum officer will then make a 

credible fear determination relating to 

the alien’s protection claims. See 8 CFR 

208.30(e)(6) and 235.3(b)(4). As with 

any other credible fear determination, 

the alien will be able to seek a review 

of any adverse decision by an 

immigration judge. 

The commenters also refer to section 

235(b)(1)(A)(ii) of the Act, which states 

that immigration officers shall refer an 

arriving alien for a credible fear 

interview before an asylum officer if 

that alien indicates an intention to 

apply for asylum or expresses a fear of 

persecution. The Act generally requires 

that an arriving alien be given a credible 

fear interview if the alien expresses 

either an intention to apply for asylum 

under section 208 of the Act or a fear 

of persecution. In particular, section 

208(a)(1) of the Act recognizes the right 

of an arriving alien to present a claim 

for asylum, specifically by means of the 

credible fear process under section 

235(b) of the Act. However, section 

208(a)(2)(A) of the Act provides that the 

right to apply for asylum as stated in 

section 208(a)(1) of the Act shall not 

apply in the case of an alien who can 

be removed to a safe third country 

pursuant to a bilateral or multilateral 

agreement. That is, aliens who can be 

removed to a safe third country under 

this process do not have a right to apply 

for asylum in the United States. Since, 

as noted in section 208(a)(1) of the Act, 

the credible fear process is the means by 

which arriving aliens present their 

claim for asylum, this necessarily means 

that aliens who can be removed to a safe 

third country do not have a statutory 

right to a credible fear review. 

Accordingly, an arriving alien who is 

subject to the bilateral Agreement with 

Canada, and does not qualify for an 

exception to that Agreement, would not 

have the right to present a claim for 

asylum through the credible fear 

process, including immigration judge 

review. Rather, in accord with the Act, 

the alien would be returned to Canada 

so that Canadian officials can consider 

the merits of his or her protection 

claims under Canadian law. 

Finally, as the Department discussed 

in the supplementary information to the 

proposed rule, permitting immigration 

judge review of an asylum officer’s 

determination to return the alien to 

Canada under the Agreement would 

likely result in prolonging the detention 

of arriving aliens who otherwise could 

be returned promptly to Canada to 

pursue their asylum claims there. See 69 

FR at 10630. 

For the foregoing reasons, the 

Department believes that the threshold 

screening interview to determine if an 

arriving alien should be returned to 

Canada should remain separate from the 

credible fear process, which relates to 

the merits of an alien’s claims of past or 

future persecution. The Department 

acknowledges the legal sufficiency of 

the threshold screening interview 

approach specified in the DHS rule and 

declines to adopt the commenters’

suggested changes to this approach. 

B. Consideration of the Agreement in 

Removal Proceedings 

One commenter sought clarification 

as to whether certain provisions 

normally applicable in removal 

proceedings would apply to arriving 

aliens whom DHS has chosen to place 

in removal proceedings. The 

Department notes that individuals 

placed in removal proceedings pursuant 

to section 240 of the Act who are subject 

to the terms of the Agreement will be 

subject to the usual statutory and 

regulatory provisions applicable in 

removal proceedings before an 

immigration judge. 

The commenter specifically requested 

the issuance of regulatory or field 

guidance for the immigration judges to 

make clear that a reasonable request for 

a continuance to obtain evidence for 

Agreement-related issues should be 

granted. The Department declines to 

take this action. The regulations 

governing removal proceedings provide 

that the immigration judge has the 

discretion to deny a request for a 

continuance, or to grant one when 

‘‘good cause’’ is shown. See 8 CFR 

1003.29. This rule would apply to any 

removal proceeding where the 

applicability of the Agreement is at 

issue. The parties therefore have an 

established procedure by which to make 

a request for a continuance, and the 

immigration judge will adjudicate such 

requests on a case-by-case basis. 

One commenter questioned whether 

individuals placed in removal 

proceedings will be permitted to appeal 

the findings of an immigration judge 

under the Agreement to the Board of 

Immigration Appeals (‘‘Board’’). The 

Board has jurisdiction to review appeals 

from all decisions of immigration judges 

in removal proceedings. See 8 CFR 

1003.1(b)(3) and 1240.15. This would 

include a decision of an immigration 

judge concerning the applicability of the 

Agreement. 

C. Withholding of Removal and 

Convention Against Torture Claims 

Several commenters challenged the 

provision of the proposed rule that 

states that aliens who are ineligible to 

apply for asylum in the United States 

under the Agreement are also precluded 

from applying for withholding of 

removal or protection under the 

Convention Against Torture. The 

commenters assert that section 

208(a)(2)(A) of the Act only provides for 

safe third country agreements as a bar to 

asylum, and does not extend to 

withholding of removal or protection 

under CAT. 

As the Department pointed out in the 

supplementary information to the 

proposed rule, there is nothing in 

section 241(b)(3)(A) of the Act, or in 

Article 3 of CAT, and their respective 

implementing regulations, which 

prevents the United States from 

removing an alien to a safe third country 

so that the alien can pursue his or her 

protection claims in that country. See 69 

FR at 10631. In this discussion, we 

explained that the specific terms of the 

Agreement are consistent with the 

United States’ obligation not to return 

an individual to a country where the 

person would face persecution or 

torture. See id.

The Department agrees that 

withholding of removal under section 

241(b)(3)(A) of the Act, and withholding 

or deferral of removal under CAT, are 

mandatory forms of relief for aliens who 

establish that they are entitled to such 

relief. However, it is essential to keep in 

mind that, in order to be entitled to such 

relief, an alien must demonstrate that it 

is more likely than not that he or she 

would be persecuted, or tortured, in the 

particular removal country. That is, 

withholding or deferral of removal 

relates only to the country as to which 

the alien has established a likelihood of 

persecution or torture—the alien may 

nonetheless be returned, consistent with 

CAT and section 241(b)(1) and (b)(2) of 

the Act, to other countries where he or 

she would not face a likelihood of 

persecution or torture. 

In the context of aliens covered by the 

Agreement, the United States and 

Canada have acknowledged that Canada 

is a safe third country where aliens will 

have resort to its asylum system, and 

where they will have access to a full and 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69493

2The commenters do not appear to be challenging 

the designation of Canada as a safe third country. 

We note that Article 2 of the Agreement provides 

that the Agreement does not apply to refugee 

claimants who are citizens of Canada or the United 

States or to aliens who, not having a country of 

nationality, are habitual residents of Canada or the 

United States. If an alien has any additional 

arguments about why return to Canada is not 

appropriate under the Agreement, they could be 

raised with DHS in the context of the public interest 

exception.

fair procedure for determining their 

claims for protection against 

persecution or torture if returned to any 

country in which they fear such harm. 

Canada is a safe third country, and in 

the absence of a showing that an alien 

would face the likelihood of persecution 

or torture in Canada, the United States 

clearly would not be in violation of its 

international obligations (as those 

obligations are codified in the Act and 

its implementing regulations) by 

returning such an alien to Canada.2

Thus this rule is fully consistent with 

the legal requirements under section 

241(b)(3) of the Act and CAT.

The commenters also assert that 

Canada’s mere accession to CAT is an 

insufficient basis to exclude aliens from 

seeking CAT relief, arguing that the 

Department and DHS rules somehow set 

a precedent for a ‘‘safe country of 

origin’’ list that is a step beyond the safe 

third country concept. They argue that 

adjudication of refugee claims should 

not be precluded based upon a blanket 

determination that a country is ‘‘safe.’’

In support of their argument, the 

commenters state that aliens presently 

seek CAT protection from countries that 

are signatories to CAT, mentioning 

those countries by name.

The Department is not persuaded by 

this line of argument, because the 

provisions of this rule only apply with 

respect to a safe third country agreement 

that satisfies all of the requirements of 

section 208(a)(2)(A) of the Act. At 

present the only such Agreement is 

between the United States and Canada. 

The Agreement was created in 

recognition of that country’s 

relationship with the United States, and 

other specific factors. These include 

Canada’s generous refugee system, 

tradition of assisting refugees and 

displaced persons, and agreement to 

provide each refugee status claimant 

access to a full and fair refugee status 

determination procedure as a means to 

guarantee the protections of the 1951 

Convention Relating to the Status of 

Refugees, the 1967 Protocol Relating to 

the Status of Refugees, and the 

Convention Against Torture. 

Additionally, one commenter argued 

that returning an alien to Canada under 

the Agreement would constitute 

‘‘indirect’’ refoulement in violation the 

United States’ international obligation 

to protect refugees. The commenter 

argues that returning the asylum seeker 

to Canada may indirectly constitute 

refoulement if Canadian authorities 

subsequently send the alien back to the 

place of feared persecution. This rule, 

however, only deals with returning an 

individual to Canada pursuant to the 

terms of the Agreement, where the alien 

will have a full opportunity to pursue 

their claims for protection. As 

previously stated, returning an alien to 

a safe third country is fully consistent 

with the United States’ obligations not 

to return an individual to a country 

where the person would face 

persecution or torture. 

D. Exceptions to the Agreement 

One commenter expressed several 

specific concerns about the exceptions 

provided for by the Agreement, and 

these suggestions will be addressed in 

turn. The Department initially points 

out that the exceptions to the Agreement 

are found in the DHS final rule at 8 CFR 

208.30(e)(6)(iii), and are incorporated by 

reference into this final rule at 8 CFR 

1240.11(g)(3). The DHS rule provides a 

detailed discussion of the exceptions. 

1. Family Unity Provisions 

The commenter recommended that 

under the family unity provisions, the 

term ‘‘spouse’’ should be interpreted to 

include a common-law spouse. DHS has 

not expanded the definition of spouse; 

similarly, the Department will not 

undertake this action. The Department 

does point out that the Act and case law 

have addressed the definition of 

‘‘spouse’’ under the immigration law. 

See, e.g., section 101(a)(35) of the Act; 

Matter of H-, 9 I&N Dec. 640 (BIA 1962) 

(recognizing the general rule that the 

validity of a marriage is determined by 

the law of the place where it is 

contracted or celebrated). The parties 

are free to present any proper arguments 

regarding the interpretation of the term 

‘‘spouse’’ before the immigration judge 

in the course of removal proceedings. 

The commenter also recommended 

that ‘‘de facto’’ relatives be considered 

eligible ‘‘anchor’’ relatives if the 

individual serves or has served as the 

alien’s primary source of emotional or 

material support, regardless of their 

relationship to the alien. As explained 

in the supplementary information to the 

DHS final rule, the definition of ‘‘family 

member’’ was the subject of much 

negotiation in the context of the 

Agreement, and DHS has declined to 

further expand the definition in its final 

rule. The Department accordingly 

declines to make this change. 

On the other hand, one commenter 

stated that the family unity exceptions 

in the Agreement are too broad, and that 

they should include a provision 

requiring family members to assume full 

financial responsibility for any alien 

falling under an exception. The 

commenter also expressed other 

objections to the exceptions, arguing for 

example that minors should not be 

treated any differently than adults. The 

Department declines to narrow or limit 

any exceptions to the Agreement, just as 

the Department has declined to expand 

upon them. 

2. Valid Visa Exception 

One commenter expressed concern 

about the exception for asylum seekers 

who arrive in the United States 

pursuant to a validly issued United 

States visa or other valid admission 

document. The commenter effectively 

noted that DHS may consider such 

documents, even if genuine, to support 

a charge of fraud in violation of section 

212(a)(6)(C) of the Act if they were 

procured by applicants whose true 

intentions were to enter the United 

States to apply for asylum. The 

commenter sought clarification as to 

whether such United States visas would 

be considered ‘‘validly issued’’ under 

the exception to the Agreement. The 

DHS has not amended its rule in this 

area; however, the supplementary 

information to the DHS final rule states 

that for the limited purposes of applying 

the exception to the Agreement, USCIS 

will issue and apply operational 

guidance interpreting the term ‘‘validly 

issued’’ without regard to the asylum 

seeker’s subjective intent. If an alien is 

placed into removal proceedings under 

section 240 of the Act, the parties may 

raise any issues concerning the 

interpretation of this exception before 

the immigration judge in the course of 

removal proceedings. The Department 

notes that the factual basis for a possible 

finding of inadmissibility under section 

212(a)(6)(C) of the Act will be 

scrutinized, because such a finding may 

permanently bar an alien from 

admission. See Matter of Y-G-, 20 I&N 

Dec. 794 (BIA 1994). 

3. Public Interest Exception 

One commenter raised several issues 

concerning the application of the public 

interest exception for aliens in removal 

proceedings. For example, the 

commenter recommended that minors 

who have a parent or legal guardian in 

the United States and do not meet any 

of the specific exceptions to the 

Agreement should be considered under 

the public interest exception. The DHS 

rule provides that an asylum officer may 

69494 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

decide in the public interest to allow an 

alien covered by the Agreement to 

pursue a claim for asylum or other 

protection even though the alien does 

not meet a specific exception to the 

Agreement. If the alien is in removal 

proceedings, DHS may file a written 

notice of its decision before the 

immigration judge. See 8 CFR 

240.11(g)(3). The Attorney General has 

decided that the decision to invoke this 

authority will be left solely within the 

discretion of DHS and will not be 

within the discretion of the immigration 

judges to review or adjudicate in the 

first instance. The Department therefore 

declines to expand or amend the public 

interest definition as has been suggested 

by the commenter. We note that the 

supplementary information to the DHS 

rule concluded that the public interest 

exception is best administered through 

operational guidance and on a case-bycase basis. In addition, DHS has stated 

in the preamble to its rule that it will 

be sensitive to the unique issues facing 

minors and will proceed carefully in 

those cases. 

The commenter also recommended 

that the proposed rule establish a 

procedure between the Department and 

DHS to ensure that DHS fully considers 

the application of the public interest 

exception in those cases being 

adjudicated before an immigration 

judge. The Department declines to 

accept the commenter’s 

recommendation. This rule provides 

that an immigration judge may consider 

asylum issues regarding an alien who 

otherwise would be barred by the 

Agreement if DHS notifies the 

immigration judge that it has invoked 

the public interest exception. If an issue 

arises in removal proceedings related to 

the public interest exception, and it is 

within the jurisdiction of the 

immigration judge to address, the 

parties may raise the matter during the 

proceedings under the existing rules.

E. Procedures for Asylum Seekers 

Returned to the United States 

One commenter sought an 

explanation as to how asylum seekers 

returned to the United States from 

Canada under the Agreement will be 

received and processed. The commenter 

understood that these returnees, without 

lawful status in the United States, will 

be processed as if apprehended in the 

interior of the United States and thus 

will be placed in removal proceedings, 

rather than being treated as arriving 

aliens subject to expedited removal. 

The manner in which asylum seekers 

returned to the United States from 

Canada under the Agreement will be 

received and processed is within the 

province of DHS. See, e.g., Matter of 

Bahta, 22 I&N Dec. 1381, 1391 (BIA 

2000) (addressing the former 

Immigration and Naturalization 

Service’s fundamental authority to 

exercise procedural discretion on 

whether to commence removal 

proceedings). The supplementary 

information to the DHS final rule 

provides a discussion of how these 

asylum seekers will be received and 

processed. 

The commenter recommended that, if 

DHS decides to detain an asylum seeker 

returned under the Agreement, 

immigration judges should either order 

the release of the individual or set a low 

bond if the person does not pose a 

danger to the community and his or her 

identity has been established. 

The Department declines to adopt 

special rules in this situation. In 

general, an alien whom DHS has chosen 

to place in removal proceedings before 

an immigration judge will be subject to 

the established procedures governing 

custody and bond determinations. See 8 

CFR 236.1, 1003.19, and 1236.1(d). 

Those procedures do not apply, 

however, with respect to arriving aliens 

whom DHS has placed in expedited 

removal under section 235 of the Act. 

See also 8 CFR 235.3(c) (arriving aliens 

remain subject to detention as arriving 

aliens even if they are placed into 

removal proceedings under section 240 

of the Act, but may be paroled by DHS). 

An arriving alien’s custody status is not 

subject to review by an immigration 

judge. See 8 CFR 1003.19(h)(2)(i)(B); 

Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 

1998). 

The commenter further expressed 

concern about a possible surge of 

asylum seekers to the United StatesCanadian ports-of-entry before the 

implementation of the Agreement, 

which would result in the Canadian 

authorities being overwhelmed with 

requests and having to ‘‘direct back’’

aliens to the United States with rescheduled Canadian interviews. This 

has reportedly happened in the past, 

and one consequence was that asylum 

seekers were detained in the United 

States and unable to return to Canada 

for their interviews. The commenter 

recommended that, with respect to 

asylum seekers placed in removal 

proceedings ‘‘as a result of a Canadian 

direct-back, and absent any serious 

security concerns,’’ immigration judges 

either release these individuals on their 

own recognizance or set a low bond so 

that they can return to Canada to attend 

their scheduled hearings. The 

commenter also recommended that the 

removal proceedings of such 

individuals be administratively closed 

while they pursue their refugee claims 

in Canada. 

The Department declines to accept the 

commenter’s recommendations. Because 

the Agreement does not contemplate 

that special consideration be given to 

such aliens, DHS will in the first 

instance decide how to deal with these 

individuals in the exercise of its 

enforcement discretion. If the aliens are 

placed into removal proceedings before 

an immigration judge, they will have 

recourse to existing procedures, 

including procedures for custody and 

bond redeterminations, and requests for 

administrative closure. For a more 

complete discussion of how these aliens 

may be processed should this situation 

arise, see the SUPPLEMENTARY

INFORMATION section in the DHS final 

rule published elsewhere in this Federal 

Register. 

F. Reconsideration by Canada for 

Asylum Seekers Returned to the United 

States 

One commenter has encouraged 

Canada to establish a mechanism to 

reconsider cases, based on new 

evidence or changed circumstances, 

after a person has been returned to the 

United States under the Agreement. The 

commenter seeks an explanation as to 

how the Department would assist 

Canadian authorities if such a 

reconsideration was sought. The 

commenter specifically recommends 

that, in the event Canadian authorities 

seek the alien’s presence at the United 

States-Canadian border to reconsider a 

claim, the immigration judge should 

order the release or appropriately lower 

the bond of that alien, and 

administratively close the alien’s case if 

he or she is admitted into Canada to 

pursue a refugee claim. 

The Agreement does not address the 

issue of reconsideration of claims after 

they are adjudicated by either country. 

The Department will not speculate 

about what future developments in this 

area might occur. If Canadian officials 

do seek to reconsider the case of an 

alien who is in removal proceedings, the 

initial determination on how to respond 

would be made by DHS, not by the 

immigration judge. The parties to the 

proceedings may present their positions 

concerning the alien’s detention in the 

course of any custody review properly 

before the immigration judge. Further, 

any request for administrative closure of 

a removal proceeding should be 

addressed on a case-by-case basis. See 

generally Matter of Gutierrez, 21 I&N 

Dec. 479, 480 (BIA 1996) (administrative 

closure is used to temporarily remove a 

case from the docket, and is not 

permitted if opposed by either party). 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69495

The Department therefore declines to 

accept the commenter’s 

recommendation. 

G. Inadmissibility of Aliens Removed to 

Canada Under the Agreement 

One commenter recommended that an 

alien who is returned to Canada under 

the Agreement should not subsequently 

be found inadmissible to the United 

States under section 212(a)(9)(A)(i) of 

the Act (providing that any alien who 

has been ordered removed under section 

235(b)(1) of the Act, or at the end of 

removal proceedings under section 240 

of the Act initiated upon the alien’s 

arrival, is inadmissible for 5 years after 

the date of such removal). 

The Department notes that the 

applicability of the Agreement does not 

change the fact that an alien has been 

ordered removed in the context of 

expedited removal proceedings or 

removal proceedings under section 240 

of the Act. The Department finds no 

reason why section 212(a)(9)(A) of the 

Act, or any related provisions 

concerning aliens removed from the 

United States, would not apply in the 

case of an alien subject to the 

Agreement who is subject to expedited 

removal or is ordered removed to 

Canada by an immigration judge. As for 

other arriving aliens who have been 

ordered removed, the alien may seek 

DHS’ consent to reapply for admission, 

pursuant to section 212(a)(9)(A)(iii) of 

the Act. 

H. Requests for Reconsideration for 

Asylum Seekers Returned to Canada 

One commenter recommended that 

the immigration judge and the Board 

permit requests by the individual 

asylum seeker, or the Canadian 

government, to reconsider a decision 

that an alien did not qualify for an 

exception to the Agreement, even after 

an alien has been removed to Canada. 

The Department declines to accept the 

commenter’s recommendation. The 

rules governing motions for reopening 

and reconsideration do not provide 

authority for third parties, such as the 

Canadian government, to file motions in 

proceedings before the immigration 

judge or the Board. See 8 CFR 1003.2(a) 

and 1003.23(b). In addition, the 

regulations provide that a motion to 

reopen or reconsider shall not be made 

by or on behalf of a person who is the 

subject of removal, deportation, or 

exclusion proceedings subsequent to his 

or her departure from the United States. 

See 8 CFR 1003.2(d) and 1003.23(b). 

The Department declines to make any 

amendments to these existing 

regulations. 

The commenter requested that, at a 

minimum, individuals returned to 

Canada be permitted to resubmit asylum 

claims at the border, assuming they are 

not detained. With respect to an alien 

who already has been returned to 

Canada under the Agreement in order to 

seek protection under Canadian law, 

allowing such an alien to return once 

again to the United States and resubmit 

his or her asylum claims after being 

denied relief in Canada would 

undermine a general premise of the 

Agreement, which is that a covered 

alien is able to seek protection in one 

country or the other, but not both. If 

such an alien later returns to a U.S.-

Canada land border port-of-entry 

seeking protection, he or she would 

remain subject to the Agreement and be 

removed to Canada again unless he or 

she was able to establish an exception 

to the Agreement. 

I. Miscellaneous Issues 

The Department also received several 

miscellaneous comments from one 

commenter who asserted that the United 

States has too many illegal immigrants 

(which drives up various costs), that 

battered women should stay in their 

own countries and work to change laws 

there, and that this rule is a ‘‘major 

rule’’ that will costs taxpayers millions 

of dollars. 

In response, it is the Department’s 

long-standing position that America is a 

welcoming country to persons who 

come here lawfully—whether they come 

here as immigrants or non-immigrants 

(including as refugees from human 

rights abuses)—and that lawful 

immigration benefits this country. 

However, the Department and other 

agencies of the United States 

government vigorously enforce 

American immigration laws against 

illegal immigration. The Department 

disagrees that this rule is a ‘‘major rule’’

under the Small Business Regulatory 

Enforcement Fairness Act or that it is 

‘‘economically significant’’ within the 

meaning of Executive Order 12866. This 

rule simply implements a statutorilyauthorized agreement between the 

United States and Canada that allocates 

responsibility between the United States 

and Canada for processing claims of 

certain asylum seekers. 

Finally, the Department has added 

one minor conforming amendment at 8 

CFR 1235.3(b)(4) to accommodate DHS’

use of the threshold screening process 

in applying the Agreement. For more 

details concerning the DHS amendment 

to 8 CFR 235.3(b)(4), see the DHS final 

rule also appearing in this Federal 

Register. This rule makes a conforming 

amendment to 8 CFR 1235.3(b)(4) to 

cross-reference the provisions of the 

DHS rule rather than restating them. 

The Department is also correcting a 

typographical error to the part heading 

of 8 CFR 1235. 

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. This rule 

affects individual aliens, as it relates to 

claims of asylum. It does not affect 

small entities, as that term is defined in 

5 U.S.C. 601(6). 

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 United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Executive Order 12866

The Attorney General has determined 

that this rule is a ‘‘significant regulatory 

action’’ under Executive Order 12866, 

section 3(f), Regulatory Planning and 

Review, and, accordingly, this rule has 

been submitted to the Office of 

Management and Budget for review. In 

particular, the Department has assessed 

both the costs and benefits of this rule 

as required by Executive Order 12866, 

section 1(b)(6), and has made a reasoned 

determination that the benefits of this 

regulation justify its costs. 

The rule would implement a bilateral 

Agreement that allocates responsibility 

between the United States and Canada 

for processing claims of certain asylumseekers, enhancing the two nations’

ability to manage, in an orderly fashion, 

69496 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

asylum claims brought by persons 

crossing our common border. The rule 

applies to certain individuals in 

removal proceedings who apply for 

asylum. This rule simply adds another 

factor for immigration judges to 

consider in removal proceedings. 

Therefore, the ‘‘tangible’’ costs of this 

rulemaking to the U.S. Government are 

minimal. Applicants who are found to 

be subject to the bilateral Agreement 

with Canada will be returned to Canada 

to seek asylum, saving the U.S. 

Government the cost of adjudicating 

their asylum claims. 

The cost to asylum-seekers who, 

under the rule, will be returned to 

Canada are the costs of pursuing an 

asylum claim in Canada, as opposed to 

the United States. There is no fee to 

apply for asylum in Canada and, under 

Canadian law, asylum-seekers are 

provided social benefits for which they 

are not eligible in the United States. 

Therefore, the tangible costs of seeking 

asylum in Canada are no greater than 

they are in the United States. The 

‘‘intangible’’ costs to asylum-seekers 

who would be returned to Canada under 

the rule are the costs of potential 

separation from support networks they 

may be seeking to join in the United 

States. However, the Agreement 

contains broad exceptions based on 

principles of family unity that would 

allow many of those with family 

connections in the United States to seek 

asylum in the United States under 

existing regulations. 

Executive Order 13132

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

Executive Order 12988 Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Paperwork Reduction Act 

The provisions of the Paperwork 

Reduction Act of 1995, Public Law 104–

13, 44 U.S.C. chapter 35, and its 

implementing regulations, 5 CFR part 

1320, do not apply to this final rule 

because there are no new or revised 

recordkeeping or reporting 

requirements. 

Family Assessment Statement 

The Attorney General has reviewed 

this regulation and assessed this action 

in accordance with the criteria specified 

by section 654(c)(1) of the Treasury 

General Appropriations Act, 1999, 

Public Law 105–277, Div. A. The 

Attorney General has determined that it 

will not affect family well-being as that 

term is defined in section 654. 

The separate final rule published by 

the Department of Homeland Security 

explains that an alien arriving at U.S.-

Canada land border port-of-entry may 

qualify for an exception to the bilateral 

Agreement with Canada, which 

otherwise requires individuals to seek 

protection in the country of last 

presence (Canada), by establishing a 

relationship to a family member in the 

United States who has lawful status in 

the United States, other than a visitor, 

or is 18 years of age or older and has an 

asylum application pending. The DHS 

proposed rule addresses issues relating 

to family well-being in connection with 

that rule. 

This rule provides that the 

immigration judges will apply the 

definition of ‘‘family member’’ used in 

the Agreement and DHS rule, in those 

cases where DHS has chosen to place an 

alien who is subject to the Agreement 

into removal proceedings under section 

240 of the Act. However, that is 

expected to occur only very rarely. In 

any other case, where DHS does not 

choose to place an arriving alien into 

removal proceedings under section 240 

of the Act, this rule has no effect on 

family well-being, because the 

immigration judges will not be 

involved. DHS determinations made 

under the Agreement will not be 

reviewed by the Department of Justice.

List of Subjects 

8 CFR Part 1003

Administrative practice and 

procedure, Aliens, Immigration, Legal 

Services, Organization and function 

(Government agencies). 

8 CFR Part 1208

Administrative practice and 

procedure, Aliens, Immigration, and 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1212

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, and Reporting and 

recordkeeping requirements. 

8 CFR Part 1235

Administrative practice and 

procedure, Aliens, Immigration, and 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1240

Administrative practice and 

procedure and Aliens.

■ Accordingly, chapter V of title 8 of the 

Code of Federal Regulations is amended 

as follows:

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW

■ 1. The authority citation for part 1003 

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101 

note, 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, 111 Stat. 

2196–200; sections 1506 and 1510 of Pub. L. 

106–386; 114 Stat. 1527–29, 1531–32; section 

1505 of Pub. L. 106–554, 114 Stat. 2763A–

326 to –328.

■ 2. Section 1003.42 is amended by 

adding new paragraph (h) to read as 

follows:

§ 1003.42 Review of credible fear 

determinations.

* * * * *

(h) Safe third country agreement. (1) 

Arriving alien. An immigration judge 

has no jurisdiction to review a 

determination by an asylum officer that 

an arriving alien is not eligible to apply 

for asylum pursuant to a bilateral or 

multilateral agreement (the Agreement) 

under section 208(a)(2)(A) of the Act 

and should be returned to a safe third 

country to pursue his or her claims for 

asylum or other protection under the 

laws of that country. See 8 CFR 

208.30(e)(6). However, in any case 

where an asylum officer has found that 

an arriving alien qualifies for an 

exception to the Agreement, an 

immigration judge does have 

jurisdiction to review a negative 

credible fear finding made thereafter by 

the asylum officer as provided in this 

section. 

(2) Aliens in transit. An immigration 

judge has no jurisdiction to review any 

determination by DHS that an alien 

being removed from Canada in transit 

through the United States should be 

returned to Canada to pursue asylum 

claims under Canadian law, under the 

terms of a safe third country agreement 

with Canada.

* * * * *

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69497

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL

■ 3. The authority citation for part 1208 

is revised to read as follows:

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

1282.

■ 4. Section 1208.4 is amended by 

adding new paragraph (a)(6) to read as 

follows:

§ 1208.4 Filing the application.

* * * * *

(a) * * * 

(6) Safe third country agreement.

Immigration judges have authority to 

consider issues under section 

208(a)(2)(A) of the Act, relating to the 

determination of whether an alien is 

ineligible to apply for asylum and 

should be removed to a safe third 

country pursuant to a bilateral or 

multilateral agreement, only with 

respect to aliens whom DHS has chosen 

to place in removal proceedings under 

section 240 of the Act, as provided in 

8 CFR 1240.11(g). For DHS regulations 

relating to determinations by asylum 

officers on this subject, see 8 CFR 

208.30(e)(6).

* * * * *

■ 5. Section 1208.30 is amended by:

■ a. Revising paragraphs (a) and (e); and 

by

■ b. Removing and reserving paragraphs 

(c), (d), (f), and (g)(1). 

The revisions read as follows:

§ 1208.30 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. 

(a) Jurisdiction. The provisions of this 

subpart apply to aliens subject to 

sections 235(a)(2) and 235(b)(1) of the 

Act. Pursuant to section 235(b)(1)(B), 

asylum officers have exclusive 

jurisdiction to make credible fear 

determinations, and the immigration 

judges have exclusive jurisdiction to 

review such determinations.

* * * * *

(e) Determination. For the standards 

and procedures for asylum officers in 

conducting credible fear interviews and 

in making positive and negative credible 

fear determinations, see 8 CFR 208.30. 

The immigration judges will review 

such determinations as provided in 

paragraph (g)(2) of this section and 8 

CFR 1003.42.

* * * * *

PART 1212—DOCUMENTARY 

REQUIREMENTS; NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE

■ 6. The authority citation for part 1212 

is revised to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103.

■ 7. Section 1212.5 is revised to read as 

follows:

§ 1212.5 Parole of aliens into the United 

States. 

Procedures and standards for the 

granting of parole by the Department of 

Homeland Security can be found at 8 

CFR 212.5.

PART 1235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION

■ 8. The authority citation for part 1235 

is revised to read as follows:

Authority: 8 U.S.C. 1101 and note; 1103; 

1183; 1201; 1224; 1225; 1226; 1228.

■ 9. The heading for part 1235 is revised 

to read as above.

■ 10. Section 1235.3 is amended by 

revising paragraph (b)(4) introductory 

text and paragraph (b)(4)(i) to read as 

follows:

§ 1235.3 Inadmissible aliens and expedited 

removal.

* * * * *

(b) * * * 

(4) Claim of asylum or fear of 

persecution or torture. (i) The DHS 

regulations at 8 CFR 235.3(b)(4) provide 

for referring an alien to an asylum 

officer if the alien indicates an intention 

to apply for asylum or expresses a fear 

of persecution or torture or a fear of 

return to his or her country.

* * * * *

PART 1240—PROCEEDINGS TO 

DETERMINE REMOVABILITY OF 

ALIENS IN THE UNITED STATES

■ 11. The authority citation for part 1240 

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 

1224, 1225, 1226, 1227, 1251, 1252 note, 

1252a, 1252b, 1362; secs. 202 and 203, Pub. 

L. 105–100, 111 Stat. 2160, 2193; sec. 902, 

Pub. L. 105–277, 112 Stat. 2681; sec. 1101, 

Pub. L. 107–269, 116 Stat. 2135.

■ 12. Section 1240.11 is amended by 

adding a new paragraph (g), to read as 

follows:

§ 1240.11 Ancillary matters, applications.

* * * * *

(g) Safe third country agreement. (1) 

The immigration judge has authority to 

apply section 208(a)(2)(A) of the Act, 

relating to a determination that an alien 

may be removed to a safe third country 

pursuant to a bilateral or multilateral 

agreement (Agreement), in the case of an 

alien who is subject to the terms of the 

Agreement and is placed in proceedings 

pursuant to section 240 of the Act. In an 

appropriate case, the immigration judge 

shall determine whether under the 

Agreement the alien should be returned 

to the safe third country, or whether the 

alien should be permitted to pursue 

asylum or other protection claims in the 

United States. 

(2) An alien described in paragraph 

(g)(1) of this section is ineligible to 

apply for asylum, pursuant to section 

208(a)(2)(A) of the Act, unless the 

immigration judge determines, by 

preponderance of the evidence, that: 

(i) The Agreement does not apply to 

the alien or does not preclude the alien 

from applying for asylum in the United 

States; or 

(ii) The alien qualifies for an 

exception to the Agreement as set forth 

in paragraph (g)(3) of this section. 

(3) The immigration judge shall apply 

the applicable regulations in deciding 

whether the alien qualifies for any 

exception under the Agreement that 

would permit the United States to 

exercise authority over the alien’s 

asylum claim. The exceptions under the 

Agreement are codified at 8 CFR 

208.30(e)(6)(iii). The immigration judge 

shall not review, consider, or decide any 

issues pertaining to any discretionary 

determination on whether the alien 

should be permitted to pursue an 

asylum claim in the United States 

notwithstanding the general terms of the 

Agreement, as such discretionary public 

interest determinations are reserved to 

DHS. However, an alien in removal 

proceedings who is otherwise ineligible 

to apply for asylum under the 

Agreement may apply for asylum if DHS 

files a written notice in the proceedings 

before the immigration judge that it has 

decided in the public interest to allow 

the alien to pursue claims for asylum or 

withholding of removal in the United 

States. 

(4) An alien who is found to be 

ineligible to apply for asylum under 

section 208(a)(2)(A) of the Act is 

ineligible to apply for withholding of 

removal pursuant to section 241(b)(3) of 

the Act and the Convention against 

Torture. However, the alien may apply 

for any other relief from removal for 

which the alien may be eligible. If an 

alien who is subject to section 

208(a)(2)(A) of the Act is ordered 

removed, the alien shall be ordered 

removed to the safe third country in 

which the alien will be able to pursue 

his or her claims for asylum or 

69498 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

protection against persecution or torture 

under the laws of that country.

Dated: November 22, 2004. 

John Ashcroft, 

Attorney General.

[FR Doc. 04–26238 Filed 11–26–04; 8:45 am] 

BILLING CODE 4410–30–P