69480 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 208, 212, and 235 

[CIS No. 2255–03] 

RIN 1615–AA91 

Implementation of the Agreement 

Between the Government of the United 

States of America and the Government 

of Canada Regarding Asylum Claims 

Made in Transit and at Land Border 

Ports-of-Entry

AGENCY: Department of Homeland 

Security.

ACTION: Final rule.

SUMMARY: This rule codifies specific 

terms of an agreement between the 

United States and Canada that permits 

the respective governments to manage 

which government decides certain 

aliens’ requests for protection from 

persecution or torture pursuant to 

domestic implementation of 

international treaty obligations. This 

rule establishes U.S. Citizenship and 

Immigration Services (‘‘USCIS’’) asylum 

officers’ authority to make threshold 

determinations concerning applicability 

of this agreement in the expedited 

removal context. In addition, this rule 

codifies the existing definitions of 

‘‘credible fear of persecution’’ and 

‘‘credible fear of torture’’ without 

altering those definitions.

DATES: This final rule is effective 

December 29, 2004.

FOR FURTHER INFORMATION CONTACT:

Joanna Ruppel, Deputy Director, 

Asylum Division, Office of Refugee, 

Asylum, and International Operations, 

U.S. Citizenship and Immigration 

Services, 20 Massachusetts Avenue, 

NW, Washington, DC 20536; Telephone 

(202) 272–1663.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Background 

II. Validity of the Threshold Screening 

Process 

III. Detention Issues 

IV. Procedural Safeguards Under the 

Threshold Screening Interview Process: 

Arrivals from Canada 

• Screening Process Guarantees 

• Post-Interview Process 

V. Adjudicating Exceptions to the Agreement 

• Family-Based Exceptions 

• Unaccompanied Minor Exception 

• Public Interest Exception 

• Valid Visa Exception 

• Other Exceptions 

VI. Procedures for Asylum Seekers Going to 

and Being Returned from Canada 

• Process for Asylum Seekers Bound for 

Canada 

• Process for Asylum Seekers Returned 

from Canada 

• Cost of Processing Returned Asylum 

Seekers 

VII. Monitoring Plans 

VIII. Agreement Terms Unrelated to 

Processing Asylum Seekers Coming to 

the United States from Canada 

• Resettlement under the Agreement 

• Terminating the Agreement

IX. Miscellaneous 

• Resolving U.S.-Canadian Differences in 

Interpreting the Agreement 

• Defining ‘‘land border port-of-entry’ 

• Aliens ‘‘directed back’’ from Canada 

• Indirect refoulement

X. Conforming Amendment to Part 235 of 

Title 8 of the Code of Federal 

Regulations

I. Background 

On March 8, 2004, the Secretary of 

Homeland Security and the Attorney 

General promulgated proposed rules to 

implement terms of the ‘‘Agreement 

Between the Government of the United 

States of America and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries’ 

(‘‘Safe Third Country Agreement’’ or 

‘‘Agreement’’), which, consistent with 

section 208(a)(2)(A) of the Immigration 

and Nationality Act (‘‘Act’’) (8 U.S.C. 

1158(a)(2)(A)), provide for the return of 

certain asylum seekers to the ‘‘country 

of last presence.’’ 69 FR 10620, 69 FR 

10627. The Agreement is available both 

on the USCIS Web site, http://

www.uscis.gov, and the Web site for the 

U.S. Embassy in Canada, http://

www.usembassycanada.gov/content/

can_usa/safethirdfinal_agreement.pdf. 

The proposed rules outlined how the 

Department of Homeland Security 

(DHS) and the Department of Justice 

(DOJ) proposed to address the asylum, 

withholding of removal, and 

Convention Against Torture claims 

(‘‘protection claims’’) of aliens seeking 

to enter the U.S. at U.S.-Canada land 

border ports-of-entry, or in transit 

through the U.S. during removal by the 

Canadian government, in accordance 

with the Safe Third Country Agreement. 

The Agreement allocates responsibility 

between the United States and Canada 

whereby one country or the other (but 

not both) will assume responsibility for 

processing the claims of certain asylum 

seekers who are traveling from Canada 

into the United States or from the 

United States into Canada. The 

Agreement provides for a threshold 

determination to be made concerning 

which country will consider the merits 

of an alien’s protection claim, 

enhancing the two nations’ ability to 

manage, in an orderly fashion, asylum 

claims brought by persons crossing our 

common border. As discussed in the 

SUPPLEMENTARY INFORMATION section in 

the preamble to those proposed rules, 

the Agreement allocates resources and 

provides for prescreening of asylum and 

related claims in certain instances 

during the expedited removal process, 

where the asylum officer would 

determine whether any of the 

Agreement’s exceptions apply or 

whether aliens should be returned to 

Canada for consideration of their 

protection claims. The limited number 

of aliens arriving from Canada at land 

border ports-of-entry or in transit during 

removal by the Canadian government 

who are placed in removal proceedings 

under section 240 of the Act (8 U.S.C. 

1229a) (instead of being processed 

through expedited removal procedures) 

would have the Agreement applied to 

them in the first instance by 

immigration judges of the Executive 

Office for Immigration Review (‘‘EOIR’’), 

as outlined in the DOJ proposed rule at 

69 FR 10627 et seq. In response to the 

DHS proposed rule, DHS received 7 sets 

of comments from non-governmental 

organizations (‘‘NGOs’’) and the Office 

of the United Nations High 

Commissioner for Refugees (‘‘UNHCR’’). 

While incorporating several of the 

comments, this final rule implements 

the basic approach discussed in the 

March 8 rule proposed by DHS. 

The following discussion of the 

comments received by DHS corresponds 

generally to the variety of issues raised 

by commenters and is arranged into the 

following categories: Validity of the 

threshold screening process identified 

in the proposed rule; issues related to 

detention of asylum seekers; procedural 

safeguards under the threshold 

screening process; adjudication of the 

Agreement’s several exceptions to its 

general rule of returning certain asylum 

seekers to Canada; procedures for 

asylum seekers bound for and returned 

from Canada; monitoring of the 

Agreement’s implementation and 

impact; and Agreement terms unrelated 

to processing asylum seekers coming to 

the United States from Canada. Within 

each category, the discussion 

summarizes the relevant comments and 

offers the Department’s responses, 

including an explanation of any changes 

made to the rule. Following the 

discussion of the comments is an 

explanation of one minor conforming 

regulatory amendment included in the 

final rule to ensure that existing 

regulations governing the expedited 

removal process are consistent with the 

threshold screening interview 

mechanism adopted in DHS’’ final rule. 

Many commenters took issue with the 

Agreement itself, challenging its 

wisdom on policy grounds. This 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69481

Supplementary Information to the final 

rule, while endeavoring to address each 

comment as fully as possible, does not 

engage in a policy debate about the 

Agreement itself. 

II. Validity of the Threshold Screening 

Process 

One commenter indicated that 

creating a special process to assess the 

applicability of the Agreement and its 

exceptions would result in increased 

inefficiency and bureaucracy. The 

Department disagrees and, to the 

contrary, believes that the threshold 

screening process is the most efficient 

mechanism for implementing the 

Agreement. It will not create additional 

bureaucracy. The threshold screening 

process adopts existing processes from 

the credible fear process, will be a 

streamlined determination, and can be 

transitioned seamlessly to the credible 

fear process if an exception to the 

Agreement is found. 

Other commenters argued that the 

new threshold screening process is 

legally insufficient, if not contrary to 

existing laws, because it does not occur 

as part of the credible fear 

determination and does not provide for 

independent administrative review of 

negative decisions by immigration 

judges. These commenters have 

concluded that the proposed process 

does not, therefore, comport with 

statutory expedited removal provisions. 

Specifically, the commenters identify 

sections 235(b)(1)(A)(ii) and 235(b)(1)(B) 

of the Act (8 U.S.C. 1225(b)(1)(A)(ii), 

1225(b)(1)(B)), which provide that 

asylum officers shall interview arriving 

aliens who are inadmissible under 

section 212(a)(6)(C) or 212(a)(7) of the 

Act (8 U.S.C. 1182(a)(6)(C), 1182(a)(7)) 

and who indicate either an intention to 

apply for asylum or a fear of persecution 

in order to determine whether such 

aliens have a ‘‘credible fear of 

persecution,’’ and further provide that 

negative credible fear determinations 

may be reviewed by immigration judges. 

Similarly, arriving aliens who express a 

fear of torture are subject to these same 

procedures as a matter of regulation. 8 

CFR 208.30(e). 

While the Department agrees that 

these provisions generally do call for the 

administration of credible fear 

interviews to those aliens in expedited 

removal processing who express an 

intent to apply for asylum or a fear of 

persecution or torture, a careful reading 

of the Act makes clear that credible fear 

interviews are not required for aliens 

subject to the Safe Third Country 

Agreement. Under section 208(a)(1) of 

the Act (8 U.S.C. 1158(a)(1)), any alien 

physically present in or arriving in the 

United States may apply for asylum in 

accordance with that section, or where 

applicable, section 235(b) of the Act (8 

U.S.C. 1225(b)). The following 

paragraph, section 208(a)(2)(A) of the 

Act (8 U.S.C. 1158(a)(2)(A)), however, 

creates an exception to this generally 

permissive asylum filing standard, 

revealing Congress’ intent that an alien 

may not apply for asylum in accordance 

with section 235(b) (8 U.S.C. 1225(b)) if 

the alien ‘‘may be removed, pursuant to 

a bilateral or multilateral agreement, to 

a country * * * in which the alien’s life 

or freedom would not be threatened. 

* * * Section 235(b)(1)(B)(ii) of the Act 

(8 U.S.C. 1225(b)(1)(B)(ii)) states that, 

when an alien successfully completes 

the credible fear interview process, ‘‘the 

alien shall be detained for further 

consideration of the application for 

asylum.’’ (emphasis added). Clearly, 

then, the credible fear interview process 

constitutes the initiation of the asylum 

application process described in section 

208(a)(1) or the Act (8 U.S.C. 

1158(a)(1)). For this reason, and in light 

of section 208(d)(5)(B)’s (8 U.S.C. 

1158(d)(5)(B)) authorization to 

promulgate regulations that impose 

‘‘conditions or limitations on the 

consideration of an application for 

asylum,’’ as long as they are ‘‘not 

inconsistent with this Act,’’ the 

Department finds the threshold 

screening interview process described 

in the proposed rule to be in accord 

with the Act.

A closely related comment raised by 

some commenters is the request that the 

rule include an independent review or 

appeals process for asylum officer 

findings that an alien does not meet one 

of the Agreement’s exceptions and is, 

accordingly, ineligible to pursue an 

asylum application via the credible fear 

interview process. The Department 

believes that, given the narrow legal and 

factual issues present in the threshold 

screening process, review of an asylum 

officer’s threshold determination by a 

supervisory asylum officer will 

adequately serve to ensure that proper 

decisions are made on this limited 

issue. In light of the comments received, 

the requirement that a supervisory 

asylum officer must concur in the 

asylum officer’s finding that the alien is 

subject to return to Canada under the 

Agreement has been expressly added to 

the final rule at 8 CFR 208.30(e)(6)(i). 

III. Detention Issues 

Several commenters addressed the 

issue of detention. For instance, some 

commenters suggested adding to the 

rule the statement that asylum seekers 

subject to the Agreement generally 

should not be detained. Another 

commenter advocated a mechanism for 

the Department to refer individuals 

entering the United States or being 

returned by Canada under the 

Agreement to NGOs in the United 

States, to facilitate alternatives to 

detention. Commenters also expressed 

concern about the detention of returnees 

from Canada. One commenter would 

have the rule prohibit detention of this 

group under any circumstances, while 

another suggested that the Department 

only detain returnees under exceptional 

circumstances, and, if detention is 

necessary, to avoid detention in local 

and county jails. The Agreement does 

not amend the detention authority 

under sections 236, 236A and 241 of the 

Act (8 U.S.C. 1226, 1226a, 1231) or 

require that DHS alter its current 

detention policies or practices. No 

amendments to the detention 

regulations were proposed in the 

proposed rule, and any changes in these 

regulations would require a new 

proposed rule. After reviewing the 

comments, DHS is not convinced that 

there is any reason to amend the 

detention provisions of the regulations 

because of the implementation of the 

Agreement or this rule. The comments 

do not articulate any legitimate basis for 

treating aliens without lawful 

immigration status in the United States 

who are returned under the Agreement 

differently from other asylum seekers in 

the United States without lawful 

immigration status. 

IV. Procedural Safeguards Under the 

Threshold Screening Interview Process: 

Arrivals From Canada 

Screening Process Guarantees 

Several commenters were concerned 

that the rule does not specify that 

individuals arriving from Canada would 

receive the same procedural safeguards 

in the threshold screening interview 

process that are provided to arriving 

aliens who receive credible fear 

interviews. In particular, the 

Department was urged to incorporate, in 

the final rule, the following such 

safeguards: Option to consult with a 

person of the alien’s choosing; sufficient 

time to contact a consultant, relative, or 

relevant advocates, at no expense to the 

U.S. government; sufficient time to 

prepare for the eligibility interview; an 

assurance that the interview would not 

occur sooner than 48 hours after the 

asylum seeker’s arrival at a detention 

facility, unless the individual waives 

this preparation period; the ability to 

request that the threshold screening 

interview be postponed, which the 

Department should grant if there are 

good reasons to do so; use of an 

69482 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

interpreter; explanation of and guidance 

on the interview procedure; and the 

issuance of a reasoned written decision. 

The Department has clarified, in the 

final rule, that the same safeguards 

accorded to aliens who are eligible for 

a credible fear determination will be 

accorded to aliens who receive 

threshold screening interviews. 

However, the suggestion that the 

threshold screening interview be 

postponed upon an alien’s request has 

no parallel in the sections of 8 CFR 

208.30 outlining the credible fear 

process. Also, this suggestion would 

compromise the principle underlying 

the Agreement that aliens be returned 

promptly to the country of last presence; 

therefore, it will not be incorporated 

into the final rule. In appropriate cases, 

the Department may exercise its 

discretion to delay the threshold 

screening process where the delay is 

justified. 

One commenter recommended that 

the final rule include a statement 

requiring the Department to 

accommodate reasonable requests for 

assistance in securing evidence in 

support of an asylum seeker’s claim 

arising from the asylum seeker’s 

detention. For example, an asylum 

seeker may need access to a telephone 

or fax machine to secure evidence 

establishing relationships, a family 

member’s legal status, or the asylum 

seeker’s age. The Department currently 

provides access to telephones to 

detained asylum seekers who are subject 

to expedited removal. If additional 

assistance is needed, such as access to 

a fax machine, an asylum officer may be 

able to facilitate such access. However, 

the Department does not believe it is 

necessary to incorporate this suggestion 

into the final rule, because it is 

operational in nature and instead will 

be incorporated into field guidance 

upon implementation of the rule. 

Post-Interview Process 

One commenter suggested that the 

rule should clarify that return to Canada 

under the Agreement would not render 

a person inadmissible to the United 

States on that basis. While the 

Agreement does not address matters of 

inadmissibility, the Department may 

only remove aliens from the United 

States using a mechanism provided by 

Congress. Generally, for aliens arriving 

in the United States without valid 

documents required for admission, 

expedited removal under section 235(b) 

of the Act (8 U.S.C. 1225(b)) is the 

removal mechanism provided by 

Congress. A removal order under 

section 235(b) of the Act would, as a 

matter of law, constitute a temporary 

inadmissibility ground under section 

212(a)(9)(A)(i) of the Act (8 U.S.C. 

1182(a)(9)(A)(i)). Waivers and 

exceptions to this inadmissibility 

ground do exist and will be considered 

by the Department on a case-by-case 

basis, consistent with existing 

regulations and operational directives. 

Similarly, discretion exists on the part 

of Customs and Border Protection 

(‘‘CBP’’) officers to allow aliens to 

withdraw their applications for 

admission (so that they would face no 

admissibility bar to a subsequent 

admission to the United States) and this 

discretion will continue to be used on 

a case-by-case basis. 

Another commenter recommended 

that either the final rule or operating 

procedures should include a mechanism 

for reconsideration by the Department of 

its decision to remove an asylum seeker 

to Canada following a decision that he 

or she does not qualify for one of the 

Agreement’s exceptions if new evidence 

subsequently becomes available. The 

Department plans to continue working 

with its Canadian counterparts to 

establish common procedures to resolve 

matters like these at the local level 

through operational guidance. 

V. Adjudicating Exceptions to the 

Agreement 

A substantial number of the 

comments to the proposed rule 

concerned the interpretation and 

adjudication of Agreement exceptions 

for asylum seekers arriving at land 

border ports-of-entry. These comments 

corresponded roughly to the specific 

exceptions themselves, and can be 

addressed with reference to the 

following categories: family unity; 

unaccompanied minors; public interest; 

validly issued visas; and other 

exceptions. Many of the concerns 

evident from these comments were 

raised initially at meetings with NGOs, 

including a public meeting in August 

2002, before the Agreement was signed. 

The Department carefully considered 

several of the issues outlined in these 

comments at that time and incorporated 

many suggestions into the text of the 

Agreement. 

Family-Based Exceptions 

Many commenters believe that the 

rule should define ‘‘family member’’

broadly and in a more culturally 

sensitive manner that reflects the reality 

of the refugee experience. For example, 

one commenter recommended 

considering ‘‘de facto’’ family members 

as eligible anchor relatives within this 

exception, or, in the alternative, as part 

of the public interest exception. The 

definition of ‘‘family member’’ was the 

subject of prolonged discussion while 

negotiating the Agreement. The United 

States delegation advocated and 

succeeded in achieving a definition 

much broader than the class of family 

members recognized for other purposes 

under United States and Canadian 

immigration law. During negotiations, 

both Canada and the United States took 

into account the reality that different 

cultures define ‘‘family member’’

differently. Given the specificity of the 

Agreement’s enumerated relationships 

in its ‘‘family member’’ definition, the 

Department will not now, in effect, 

unilaterally amend the Agreement’s 

definition by means of this rule to 

include additional individuals. The 

Department’s position is that using the 

regulatory process to create new 

definitions at this stage would serve to 

undermine the compromise represented 

by this carefully negotiated, bilateral 

agreement. 

Other commenters suggested 

including ‘‘cousins’’ as part of the 

‘‘family member’’ definition in the rule. 

As explained above, the Agreement’s 

list of who may qualify as an anchor 

‘‘family member’’ is not subject to 

amendment by the rule. For the same 

reason, the Department will not include, 

as suggested in a separate comment, 

‘‘other close relatives’’ to the list of 

family members. 

Several commenters recommended 

that the rule specifically include a 

‘‘common-law partners’’ exception, as it 

is included in the Canadian regulations’

definition of ‘‘family member.’’ Canada 

has included common-law partners in 

the definition of ‘‘family member’’ in 

the Canadian regulations implementing 

the Agreement because this relationship 

has often been recognized as a matter of 

Canadian law. Article 1 of the 

Agreement provides that each Party will 

apply the Agreement’s family member 

exceptions in a manner that is 

consistent with its national law. While 

valid foreign marriages, including 

common law marriages, are generally 

given effect under U.S. immigration law, 

see Matter of H-, 9 I&N Dec. 640, 641 

(BIA 1962); but see section 101(a)(35) of 

the Act (8 U.S.C. 1101(a)(35)), U.S. 

federal law precludes use of the terms 

‘‘marriage’’ or ‘‘spouse’’ to refer to samesex partnerships. See Defense of 

Marriage Act, Public Law 104–199, 

section 3, 110 Stat. 2419 (1996) 

(providing that, for purposes of federal 

law, ‘‘’marriage’’ means only a legal 

union between one man and one woman 

as husband and wife, and * * * 

‘spouse’ refers only to a person of the 

opposite sex who is a husband or a 

wife.’’). Because the Department cannot 

promulgate regulations that are contrary 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69483

to law, the Department did not adopt 

the commenters’ suggestion to add a 

‘‘common-law partner’’ interpretation of 

the term ‘‘spouse,’’ as used in the 

Agreement’s family member exceptions.

A few commenters believe that the 

rule should eliminate the Agreement’s 

age and immigration status limits on 

anchor relatives, reasoning that the 

limits result in separating families when 

children cannot serve as anchors for 

their parents. Both countries have 

expressed their concern for reuniting 

separated families. To that end, both 

intend to work with the UNHCR and 

NGOs to monitor the Agreement’s effect, 

addressing this potential problem 

operationally rather than by regulation. 

A key reason that age limits were 

included in the Agreement’s family 

unity exceptions was that neither 

government wanted to trigger an 

increase in the smuggling and 

trafficking of minors, sent ahead by 

family members for the purpose of 

serving as anchors in either country. 

Further, the requirement that anchor 

relatives hold lawful, non-visitor 

immigration status derives from the 

negotiated Agreement terms, see art. 4, 

para. 2(a), which will not be modified 

through the rule-making process. 

Unaccompanied Minor Exception 

Some commenters felt that the rule 

should expand the Agreement’s 

definition of ‘‘unaccompanied minor’’ to 

include a minor who is ‘‘separated from 

both parents and is not being cared for 

by an adult who by law has the 

responsibility to do so.’’ The 

Department declines to incorporate this 

change to the Agreement’s definition 

into the final rule. The Agreement’s 

definition of ‘‘unaccompanied minor,’’

as explained in the SUPPLEMENTARY

INFORMATION accompanying the 

proposed rule, differs from the 

definition customarily used for 

purposes of U.S. immigration 

processing. As previously explained, the 

definitions in the Agreement were 

carefully negotiated with the Canadian 

government and the Department will 

not use the rule-making process to alter 

unilaterally the clear definitions in the 

Agreement. However, by applying DHS’’

customary operational definition to 

unaccompanied minors seeking asylum 

so that they are generally referred for a 

hearing by an immigration judge in 

proceedings under section 240 of the 

Act (8 U.S.C. 1229a), the Department is 

providing them ample process to 

explain whether they meet one of the 

Agreement’s exceptions and to present 

their protection claims. 

The same commenters also 

recommended that the rule should shift 

the burden of proof concerning the 

location of an unaccompanied minor’s 

parents from the unaccompanied minor 

to the government, requiring the 

government to demonstrate that the 

unaccompanied minor is in the care of 

his or her parents or is following to join 

them. While the Department 

understands the need to proceed with 

heightened restraint and sensitivity in 

the cases of unaccompanied minors, 

there is concern that this 

recommendation could adversely affect 

the unaccompanied minor by resulting 

in fact-finding delays before a final 

determination. The child likely will 

have more information than DHS as to 

the location of his or her parents and 

therefore it is more appropriate for the 

child to bear the burden of proof in 

establishing the parents’ locations. 

Moreover, aliens in removal 

proceedings—regardless of age—

generally bear the burden of proving 

their admissibility to the United States, 

8 U.S.C. 1129a(c)(2), and, similarly, 

applicants for asylum, withholding of 

removal, and protection under the 

Convention Against Torture, bear the 

burden of proof to establish eligibility, 

even in cases where the applicant is a 

child. The commenters did not provide 

sound rationales for shifting the burden 

of proof for purposes of establishing that 

an exception to the Agreement applies. 

These commenters also suggested that 

the rule include a mechanism for 

determining a child’s relationship to an 

accompanying adult or to individuals 

present in the United States or Canada, 

including an interview with a child 

welfare specialist, if the child arrives at 

the border with an individual who is 

not his or her legal guardian. The 

mechanism, they suggest, should 

include procedures to identify potential 

family members and determine their 

suitability to serve as the child’s 

guardian. The Department agrees that 

this is an area requiring further 

consideration; however, the issues 

surrounding identification of 

individuals accompanying alien 

children and verification of 

relationships between adults and 

children are broader than the scope of 

this rule and are not unique to those 

children subject to this rule. These 

issues may be raised at all borders, and 

all ports-of-entry, even in the case of 

aliens with lawful status here. 

Therefore, these issues would be more 

appropriately addressed systemically, as 

a coordinated effort among the 

Department’s various agencies to create 

a uniform approach, rather than within 

this rule. Consequently, the Department 

declines to incorporate the process 

proposed by commenters within the 

rule. 

Many commenters, as previously 

stated, urged the Department to consider 

‘‘separated children,’’ who are not with 

either parent or with an adult 

responsible for their care, as part of the 

discretionary public interest exception 

under Article 6 of the Agreement. The 

Department is sensitive to the unique 

issues facing unaccompanied minors 

and will proceed carefully in cases 

where an unaccompanied minor 

arriving in the United States appears to 

be a ‘‘separated child.’’ The Department 

will consider, on a case-by-case basis, 

whether such a child might meet the 

Agreement’s public interest exception. 

Public Interest Exception 

Many of the commenters 

recommended that the rule should state 

that ‘‘humanitarian concern is a public 

interest.’’ The Department believes that 

the Agreement’s public interest 

exception is best administered through 

operational guidance and on an 

individualized, case-by-case basis, but 

does acknowledge that ‘‘humanitarian 

concern’’ is certainly an important 

consideration to factor in to a public 

interest assessment.

Some commenters suggested that the 

rule include a non-exhaustive list of 

categories that would merit 

consideration under the public interest 

exception. Three of the suggested 

categories—common-law spouses, de 

facto family members, and separated 

children with parents or legal guardians 

in the U.S. who are ineligible to serve 

as anchors—were addressed above in 

the discussion replying to comments 

about the proposed rule’s sections 

concerning the ‘‘family member’’ and 

‘‘unaccompanied minor’’ exceptions. 

Other categories suggested by 

commenters for consideration under the 

public interest exception include: 

a. Cases where effective protection 

cannot be guaranteed in Canada because 

of that country’s asylum laws; and, 

similarly, cases where U.S. law and 

practice are not consistent with 

Canadian law and practice; 

b. Cases in which the anchor relatives 

are under age 18 and have pending 

asylum applications; 

c. Cases of survivors of torture; and 

d. Cases of individuals with physical 

and psychological health needs. 

Issues of minor anchor relatives, past 

torture, and health needs are some of 

the factors that may be considered 

under the Agreement’s public interest 

exception, along with all other relevant 

circumstances, on a case-by-case basis. 

The intent behind this provision of the 

Agreement was to allow each 

69484 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

government to make case-by-case 

determinations with broad discretion. 

Had the parties’ intent been to include 

the broad categories of individuals 

listed above, the categories would have 

been spelled out in the Agreement in 

the same manner as the other 

exceptions. 

For reasons stated in the 

Supplementary Information to the 

proposed rule, the Department does not 

consider differences in Canadian and 

U.S. protection laws germane to 

decisions made under the Agreement. 

The commenters urged, with respect to 

this suggestion, that the rule include a 

mechanism for the UNHCR and NGOs to 

help the Department analyze Canadian 

law and practice, including approval 

rates by nationality and basis for 

approval, to ensure that the Department 

exercises discretion in cases where there 

are discrepancies with U.S. law. The 

Department will not apply the public 

interest exception in a manner that 

would undermine the Agreement’s 

allocation of responsibility for 

adjudication of protection claims. Also, 

as explained in the Supplementary 

Information to the proposed rule, 

differences in our protection systems 

were contemplated by the United States 

and Canada during negotiations. In 

either country, asylum seekers will have 

their protection claims fully and fairly 

considered. 

Other commenters suggested specific 

procedures in the rule concerning the 

exercise of discretion, in the public 

interest, to allow an individual to 

pursue a protection claim in the United 

States. One recommended explaining 

who specifically may exercise this 

discretion, and the other called for a 

clear procedure between EOIR and DHS 

to ensure that the Department properly 

considers cases pending before EOIR for 

the public interest exception. In 

response to these suggestions, the final 

rule has been amended at 8 CFR 

208.30(e)(6)(iii)(F) to specify that the 

Director of USCIS, or the Director’s 

designee, will be responsible for DHS 

determinations made under the 

Agreement’s public interest exception. 

Any party wishing to present a case for 

consideration under this exception 

should provide relevant case 

information to the Director’s office or 

that of his or her designee. 

Valid Visa Exception 

One commenter noted that the rule 

should define ‘‘validly issued visa’’ so 

as not to link the validity of its issue to 

the asylum seeker’s presumed subjective 

intentions. For example, U.S. 

immigration authorities have 

determined in some instances that valid 

tourist or business visas were obtained 

by ‘‘fraud’’ because of the visa holder’s 

true intent to seek asylum. For the 

limited purposes of applying this 

exception to the Agreement, USCIS will 

construe the term ‘‘validly issued’’ to 

refer to visas that are genuine (i.e., not 

counterfeit) and were issued to the alien 

by the U.S. government. 

Other Exceptions 

One commenter forwarded comments 

made in response to a review of an 

earlier draft of the Agreement in 2002, 

in which it recommended that, to avoid 

the separation of families and minimize 

social and economic costs for states, the 

Agreement add a transit exception. 

Additionally, the commenter suggested 

a ‘‘community support contact’’

exception, which could include friends 

or colleagues willing to submit 

statements about their willingness to 

support the asylum seeker during the 

process. A transit exception would 

effectively invalidate the Agreement, as 

the Agreement’s stated purpose is quite 

clearly to return asylum seekers to the 

‘‘country of last presence.’’ With respect 

to the ‘‘community support contact’’

exception, the Department reiterates 

that the exceptions to the Agreement 

were determined through careful 

negotiations with the Canadian 

government, and that to create 

additional exceptions through rulemaking would serve to undermine the 

process. Therefore, the Department 

declines to adopt this recommendation. 

VI. Procedures for Asylum Seekers 

Going to and Being Returned From 

Canada 

Process for Asylum Seekers Bound for 

Canada 

Several commenters recommended 

that the rule include a mechanism 

whereby the Department could refer 

Canada-bound asylum seekers to NGOs 

in the United States for assistance in 

locating relatives and providing advice 

regarding eligibility before arriving at a 

land border port-of-entry. The 

commenters do not explain how the 

Department would identify these 

asylum seekers and implement this 

recommendation. While the Department 

appreciates the participation of NGOs in 

the process to date and will continue to 

seek their assistance to educate 

populations likely to be affected by the 

Agreement, it will not adopt this 

recommendation, because it would be 

administratively impracticable to 

implement and could unnecessarily 

delay travel for thousands of individuals 

crossing from the United States to 

Canada. U.S. officials generally do not 

stop and address individuals leaving the 

United States to go to Canada. Even if 

immigration officials were to stop 

individuals traveling from the United 

States into Canada, it is unclear how 

they would identify those who intend to 

seek asylum in Canada—certainly a 

minimal portion of individuals crossing 

the border each day—in order to refer 

them to an NGO. 

Process for Asylum Seekers Returned 

From Canada 

Several commenters expressed a 

desire to have the rule clarify the 

process affecting those asylum seekers 

who are determined to be ineligible by 

Canada and returned to the United 

States—the group anticipated to 

constitute the majority of asylum 

seekers affected by the Agreement. One 

non-governmental organization 

recommended that the rule guarantee 

that these individuals be exempt from 

the expedited removal process. 

The Department declines to codify the 

process affecting those returned to the 

United States under the Agreement, 

because existing regulations already 

govern how they will be treated by DHS. 

For purposes of U.S. immigration law, 

these returnees will be in the same 

position they would be in had they not 

left the United States. As the 

Department stated in the Supplementary 

Information to the proposed rule, 

individuals returned from Canada to the 

United States, with the rare exception 

noted below, will not be subject to 

expedited removal because they will not 

meet the definition of ‘‘arriving alien.’’

Depending on the individual’s 

immigration status in the United States, 

he or she may be subject to removal 

proceedings under section 240 of the 

Act (8 U.S.C. 1229a). However, it is not 

possible, practical or advisable for the 

Department to codify such a guarantee 

in this rule. There may be a rare 

circumstance in which the expedited 

removal provisions of the Act would 

apply. For example, someone initially 

paroled into the United States may 

attempt to enter Canada and then be 

returned to the United States after his or 

her parole period here expired. Such a 

person, as an individual whose parole 

period has expired, may be subject to 

expedited removal. 8 U.S.C. 

1182(d)(5)(A), 1225(a)(1)–(b)(1)(A)(i); 8 

CFR 1.1(q). 

Many commenters suggested that the 

rule include a mechanism to enable 

Canada, in the event that it decides that 

the Agreement exceptions are 

inapplicable to an individual alien, to 

address any possible errors in its 

decision or consider new information 

offered by the alien that he or she 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69485

qualifies for an exception and is eligible 

to present a protection claim in Canada. 

DHS regulations do not govern 

Canadian authorities. It would be 

inappropriate for DHS regulations to 

outline a mechanism for the Canadian 

authorities to correct errors or address 

new information. Nonetheless, the 

Canadian and United States 

governments have agreed to consult 

with each other on these matters and to 

address them operationally. 

One commenter also stressed that, in 

this context, the Department should 

release detainees or provide transport to 

the nearest land border port-of-entry if 

Canada agrees to reconsider a claim and 

requires the asylum seeker’s presence at 

the border. Release of detainees will be 

determined on a case-by-case basis, 

depending on the facts of the case and 

applicability of immigration laws. 

Should an individual be released, the 

logistics for how that person will get to 

the border is best determined on a caseby-case basis and through operational, 

as opposed to regulatory, guidance. 

Cost of Processing Returned Asylum 

Seekers 

The majority of the commenters 

disagreed with the proposed rule’s 

assessment of the costs that will result 

from the rule’s implementation, as 

outlined in the proposed rule’s 

determination made under Executive 

Order 12866. They allege that certain 

tangible costs—including increases in 

adjudications, detention, Border Patrol 

deployment, and criminality—were not 

adequately addressed. They argue that, 

among the intangible costs of this 

Agreement that were ignored by the 

proposed rule, are the increased risks to 

life and safety of those seeking to enter 

either country outside land border 

ports-of-entry, and the potential for the 

Agreement to attract more smugglers 

and traffickers, which would make this 

land border more dangerous.

The costs identified in discussing 

Executive Order 12866 were the costs 

associated with implementation of the 

provisions proposed in the rule, not the 

costs associated with the Agreement 

itself. The proposed and final rules are 

focused solely on asylum seekers 

seeking to enter the United States who 

may be returned to Canada pursuant to 

the Agreement, not those who are 

returned from Canada pursuant to the 

Agreement or who seek to cross the 

border illegally. As such, those costs 

were properly not considered in 

addressing Executive Order 12866. 

However, the United States Government 

carefully considered all of the potential 

costs identified by the commenters 

before it entered into the Agreement and 

determined that the benefits of the 

Agreement outweigh its costs. 

VII. Monitoring Plans 

Nearly all of the commenters 

recommended that the rule explicitly 

refer to the UNHCR’s monitoring role, as 

specified in Article 8 of the Agreement. 

They added that the rule should specify 

exactly what type of information the 

UNHCR will receive, such as numbers 

of applicants, their ages, their countries 

of origin, and the disposition of their 

eligibility and credibility 

determinations. They also 

recommended that the rule establish a 

timetable for the reports, preferably 

quarterly or whenever a special 

situation warrants one. In addition, the 

commenters recommended that the rule 

authorize the UNHCR to monitor 

eligibility and credibility 

determinations and to intercede in cases 

in which it believes erroneous decisions 

were made. The same commenters also 

felt that the rule should allow NGOs to 

operate as the UNHCR’s implementing 

partners to monitor the Agreement. 

The Department has not incorporated 

these recommendations into this rule, 

but plans to take them into 

consideration when finalizing its 

arrangements with Canada and the 

UNHCR concerning monitoring of the 

Agreement. The Department also would 

welcome the assistance and input of 

NGOs. It is fully the intent of the 

Department to abide by the Agreement, 

which, at Article 8, provides that ‘‘The 

Parties shall cooperate with UNHCR in 

the monitoring of this Agreement and 

seek input from non-governmental 

organizations.’’ The Department values 

the longstanding consultative, 

cooperative relationship the UNHCR has 

had with the U.S. government, which 

includes monitoring the United States’

application of the Convention Relating 

to the Status of Refugees, Jul. 28, 1951, 

189 U.N.T.S. 150 (‘‘Refugee 

Convention’’). For example, the UNHCR 

recently monitored and analyzed the 

expedited removal process and made 

several useful recommendations for the 

Department. However, the Department 

considers it inappropriate to codify the 

nature of this relationship, or the 

relationship between the Department 

and the NGO community, in these rules. 

Details of monitoring plans often change 

and develop over time, as unforeseen 

events arise, and those involved in the 

monitoring plan identify methods, 

consistent with evolving events, to 

better gather and analyze data. As such, 

it is more appropriate to include details 

of such plans in formal action plans and 

memoranda. One comment suggested 

that the rule include a monitoring plan 

concerning smuggling and trafficking 

developments. As stated earlier, the 

Department is aware of the potential for 

increased smuggling and trafficking 

after the Agreement is implemented and 

intends to monitor these developments. 

The Department does not believe, 

however, that it is appropriate to codify 

such a monitoring plan in regulations 

for the same reasons noted above. 

VIII. Agreement Terms Unrelated to 

Processing Asylum Seekers Coming to 

the United States From Canada 

Resettlement Under the Agreement 

Most commenters wanted the rule to 

include details concerning the 

implementation of the resettlement side 

agreement addressed in Article 9 of the 

Agreement. Another commenter 

recommended that the Department of 

State introduce its own proposed rule to 

implement the resettlement agreement. 

This comment concerns an issue 

separate and distinct from that of 

returning asylum seekers to the country 

of last presence. The scope of this rule 

will remain limited to implementing the 

Agreement’s terms as they concern two 

limited categories of asylum seekers: 

Those seeking entry to the United States 

at a land border port-of-entry on the 

Canadian border and those who seek 

protection while being removed from 

Canada and transiting through the 

United States. 

Terminating the Agreement 

One commenter suggested that the 

rule include criteria to determine 

whether the Agreement should be 

cancelled because of negative impacts, 

particularly any increase in smuggling 

or trafficking. Another made a similar, 

though less specific suggestion, that the 

rule should include procedures for 

revising or terminating the Agreement, 

should that prove necessary. One 

commenter added that the Department 

of State should propose its own separate 

rule concerning the procedures for 

suspending or terminating the 

Agreement, including adequate or 

appropriate termination grounds. 

With respect to termination 

procedures, Article 10 of the Agreement 

between the United States and Canada 

specifically provides that termination 

may occur with six months’ written 

notice from either party, and that three 

months’ written notice would result in 

suspension. It would be inappropriate 

for the U.S. Government to negotiate an 

Agreement with Canada and then 

unilaterally adopt specific criteria that 

would result in the Agreement’s 

termination. The efficacy and ongoing 

commitment to an international 

69486 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

agreement is a matter of foreign policy 

of the United States, the proper subject 

of diplomacy, and inappropriate for 

regulation under the Administrative 

Procedure Act (5 U.S.C. 551–59, 701–06, 

1305, 3105, 3344, 5372, 7521). 

IX. Miscellaneous 

Resolving U.S.-Canadian Differences in 

Interpreting the Agreement 

Most commenters agreed that the rule 

should provide a detailed mechanism to 

resolve differences between Canada and 

the United States regarding the 

interpretation and implementation of 

the Agreement. In accordance with the 

second paragraph of Article 8 of the 

Agreement, which provides that 

standard operating procedures ‘‘shall 

include mechanisms for resolving 

differences respecting the interpretation 

and implementation of the terms of this 

Agreement,’’ the Department intends to 

cooperate with its Canadian colleagues 

to address and resolve differences in the 

same spirit in which the Agreement was 

negotiated. As reflected in the 

Agreement itself, resolution of such 

differences is more appropriately 

addressed through operating procedures 

than through the promulgation of 

regulations. 

Defining ‘‘Land Border Port-of-Entry’’ 

Over half of the commenters 

suggested that this rule provide a 

definition of ‘‘land border port-ofentry,’’ as that term is used in the 

Agreement. Prior regulatory attempts to 

define ‘‘port-of-entry’’ have done so in 

reference to geographical locations 

where federal officers have authority to 

perform their official functions. For 

example, in the customs regulations at 

19 CFR 101.1, this term simply ‘‘refer[s] 

to any place designated by Executive 

Order of the President, by order of the 

Secretary of Treasury, or by Act of 

Congress, at which a Customs officer is 

authorized to * * * enforce the various 

provisions of the Customs and 

navigation laws.’’ Pursuant to this 

approach of port-of-entry designation, 

these regulations enumerate specific 

ports-of-entry that have been designated 

as ‘‘Customs port of entry.’’ 19 CFR 

101.3(b)(1). Existing immigration 

regulations take a similar approach, 

defining ‘‘ports-of-entry’’ with an 

exhaustive list of locations, broken 

down into three ‘‘classes.’’ 8 CFR 

100.4(c)(2). These definitional 

approaches reveal the difficulty of 

providing one uniform definition of 

‘‘port-of-entry.’’ Indeed, beyond the fact 

of CBP officers’ presence, ‘‘ports-ofentry’’ can vary in nearly every way 

imaginable. For instance, some ports-ofentry may sit on federally owned 

property, while others may be located 

on private or municipally owned 

property. Similarly, some land ports-ofentry border waterways or bridges, 

while others are located on busy 

highways or railroad tracks, while still 

others are situated in remote, rural 

areas. Given the impracticability of a 

one-size-fits-all definitional approach to 

‘‘land border ports-of-entry,’’ the 

Department will rely on the current 

definitions of 8 CFR 100.4(c)(2) and 19 

CFR 101.3(b)(1) in implementing the 

Agreement. Thus, where an alien arrives 

at a ‘‘port-of-entry,’’ as designated in 

one of these regulatory provisions, 

which is located at the shared U.S.-

Canada border, the alien will be subject 

to the Agreement. Aliens apprehended 

in the immediate vicinity of such portsof-entry attempting to avoid inspection 

will, where reasonable, be regarded as 

having ‘‘arrive[d] at a land border port 

of entry’’ and, consequently, be subject 

to the Agreement. Finally, the 

Department intends to work closely 

with the Canadian government to 

provide operational guidance 

concerning the Agreement’s 

applicability in marginal cases. 

Aliens ‘‘Directed Back’’ From Canada 

Two commenters raised the issue of 

aliens ‘‘directed back’’ by the Canadian 

government pending an interview by 

Canadian immigration officials. These 

commenters explained that, while 

Canadian authorities generally 

interview an alien who requests 

protection at the time he or she seeks to 

enter Canada from the United States, 

Canadian authorities have had occasion 

to direct such aliens back to the U.S. for 

future interview appointments in 

Canada during periods of increased 

attempted migration that outstrip 

Canadian processing resources. 

According to these commenters, such an 

increase is possible during the period 

immediately preceding Agreement 

implementation. The commenters have 

therefore requested that the Department 

work to accommodate such aliens’

attempts to enter Canada for a 

consideration of their protection claims. 

The Department will not adopt this 

suggestion. As discussed in the 

Supplementary Information to the 

proposed rule and, again, earlier in the 

Supplementary Information to this final 

rule, aliens who unsuccessfully attempt 

to enter Canada do not alter their 

immigration status by the attempted 

entry. Thus, if an alien who is present 

in the U.S. without having been 

inspected and admitted (or paroled) by 

an immigration officer unsuccessfully 

attempts to enter Canada, then he or she 

remains an unlawfully present alien 

subject to removal from the United 

States under sections 212(a)(6)(A)(i) and 

240(a) of the Act (8 U.S.C. 

1182(a)(6)(A)(i), 1229a(a)), just as if an 

immigration officer had apprehended 

the alien before he or she sought to enter 

Canada. An alien’s appointment with 

Canadian immigration officials, while 

relevant to the Department’s 

prosecutorial discretion concerning any 

decision to place the alien in removal 

proceedings, does not confer legal status 

upon an unlawfully present alien.

Indirect Refoulment 

One commenter argued that returning 

aliens to Canada under the Agreement 

would constitute ‘‘indirect’’ refoulment, 

and would therefore violate U.S. 

obligations under the Refugee 

Convention and the Protocol Relating to 

the Status of Refugees, Jan. 31, 1967, 19 

U.S.T.S. 6223 (‘‘Refugee Protocol’’). The 

Department disagrees. Article 33 of the 

Refugee Convention obligates the U.S., 

through its accession to the Refugee 

Protocol, not to ‘‘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 his race, 

religion, nationality, membership of a 

particular social group or political 

opinion.’’ (emphasis supplied). Absent 

some claim that an alien’s life or 

freedom would be threatened in Canada, 

which the commenter did not suggest, 

the return of the alien to Canada for a 

full and fair consideration of his or her 

protection claims is consistent with U.S. 

obligations. 

X. Conforming Amendment to 8 CFR 

Part 235 

In preparing this final rule, the 

Department determined that 8 CFR 

235.3(b)(4) must also be amended to 

reflect the proposed rule’s use of a 

threshold screening interview 

mechanism preceding the initiation of 

credible fear interviews for those aliens 

in expedited removal proceedings who 

are subject to the Safe Third Country 

Agreement. This existing regulatory 

provision explicitly makes reference to 

a CBP officer’s referral of protection 

claims for a ‘‘credible fear’’

determination under 8 CFR 208.30. As 

aliens subject to expedited removal who 

are covered by the Agreement must first 

pass a threshold screening interview to 

determine whether their protection 

claims may be considered in the U.S., 8 

CFR 235.3(b)(4) has been revised to refer 

more generally to 8 CFR 208.30 without 

reference to the credible fear process. 

This amendment ensures that the 

expedited removal regulations conform 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69487

to the threshold screening interview 

process explained in the proposed rule. 

Regulatory Flexibility Act 

DHS has reviewed this rule in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)) and by 

approving it, DHS certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. This rule, which relates to 

asylum claims, applies to individual 

aliens only. As such, a substantial 

number of small entities, as that term is 

defined in 5 U.S.C. 601(6), will not be 

affected by the rule. 

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 804 of the Small 

Business Regulatory Enforcement Act of 

1996. 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 Department of Homeland 

Security 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 rule justify its 

costs. 

The rule implements a bilateral 

agreement that allocates responsibility 

between the United States and Canada 

for processing claims of certain asylum 

seekers by codifying the process by 

which individuals seeking entry into the 

United States, or being removed by 

Canada in transit through the United 

States, may be returned to Canada 

pursuant to the Agreement. The rule 

applies to individuals who are subject to 

expedited removal and, under existing 

regulations, would receive a credible 

fear interview by an asylum officer. This 

rule simply provides a preliminary 

screening by asylum officers to 

determine whether the alien is even 

eligible to seek protection in the United 

States, in which case the asylum officer 

will then proceed to make the credible 

fear determination under existing rules. 

Based on statistical evidence, it is 

anticipated that approximately 200 

aliens may seek to enter the United 

States from Canada at a land border 

port-of-entry and be placed into 

expedited removal proceedings. A 

significant number of these aliens will 

be found exempt from the Agreement 

and eligible to seek protection in the 

United States after the threshold 

screening interview proposed in this 

rule. It is difficult to predict how many 

aliens will be returned to Canada under 

the Agreement, but the costs incurred in 

detaining and transporting them are not 

likely to be substantial. Therefore, the 

‘‘tangible’’ costs of this rulemaking to 

the U.S. Government are minimal. 

Applicants who are found to be subject 

to the Agreement will be returned to 

Canada to seek protection, saving the 

U.S. Government the cost of 

adjudicating their asylum claims and, in 

some cases, the cost of detention 

throughout the asylum process. 

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 that they are 

not eligible for in the United States, 

including access to medical coverage, 

adult public education, and public 

benefits. 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 proposed 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 generally allow those with family 

connections in the United States to seek 

asylum in the United States under 

existing regulations governing the 

credible fear process. 

The Executive Order 12866 cost 

analysis captures the costs which apply 

to those instances where an alien 

requests protection from the United 

States government under one of two 

scenarios: when arriving at a port-ofentry on the United States-Canada land 

border; or, when transiting through the 

United States as part of the Canadian 

government’s effort to remove the alien 

to a third country. In either scenario, the 

rule provides asylum officers with 

authority to make basic, threshold 

screening determinations about how the 

Agreement applies to the alien. 

Although additional costs may be 

incurred as part of the Safe Third 

Country Agreement between the United 

States and Canada, the costs discussed 

in the Executive Order 12866 are 

limited to those costs arising under the 

two scenarios outlined in the rule and 

not the cost impact of the overall 

Agreement between the two countries.

The Agreement provides for a 

threshold determination to be made 

concerning which country will assume 

responsibility for processing claims of 

asylum seekers. This rule only clarifies 

the threshold screening determination 

for a United States asylum officer when 

determining whether an alien should be 

returned to Canada. It is unclear how 

many individuals will seek asylum in 

the United States from Canada. 

Similarly, the Agreement permits 

Canada to return to the United States 

certain asylum seekers attempting to 

enter Canada from the United States at 

a land border port-of-entry. The 

Department does not know how many 

asylum seekers Canada will return to 

the United States. As discussed in the 

proposed rule and above, individuals 

returned from Canada to the United 

States will be in the same position as 

they would be in had they not sought 

entry in Canada. This analysis is beyond 

the purview of the rule. However, the 

Department will continue to monitor the 

costs associated with handling asylum 

seekers at land border ports-of-entry. 

The Department recognizes that there 

have been pre-existing periodic costs 

associated with the departure of aliens 

from the United States to Canada for 

purposes of seeking asylum, particularly 

during the period in which the National 

Security Entry-Exit Registration System 

(NSEERS) was operating. These costs 

arose when, during a period of 

increased attempted migration to 

Canada from the United States, the 

Government of Canada decided not to 

admit asylum seekers until they could 

be scheduled for interview 

appointments. The Department 

recognizes that many of these costs were 

directly borne by aliens, State and local 

agencies, and nonprofit organizations. 

While costs similar to those incurred in 

the past may be borne by aliens 

attempting to enter Canada before the 

69488 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

Agreement becomes effective, they are 

not affected by the terms of this rule. 

However, the Department will continue 

to monitor the costs associated with 

handling asylum seekers at land border 

ports-of-entry. 

The rule benefits the United States 

because it enhances the ability of the 

United States and Canada to manage, in 

an orderly fashion, asylum claims 

brought by persons crossing our 

common border. By implementing the 

Agreement, the rule furthers U.S. and 

Canadian goals, as outlined in the 30-

Point Action Plan under the Smart 

Border Declaration signed by Secretary 

Ridge and former Canadian Deputy 

Foreign Minister John Manley, to ensure 

a secure flow of people between the two 

countries while preserving asylum 

seekers’ access to a full and fair asylum 

process in a manner consistent with 

U.S. law and international obligations. 

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 regulations at 8 CFR 208.30 

require that an asylum officer conduct a 

threshold screening interview to 

determine whether an alien is ineligible 

to apply for asylum pursuant to section 

208(a)(2)(A) of the Act (8 U.S.C. 

1158(a)(2)(A)). The threshold screening 

interview is considered an information 

collection under the Paperwork 

Reduction Act (PRA) of 1995. On March 

8, 2004, the Department of Homeland 

Security, published a proposed rule in 

the Federal Register to provide USCIS 

asylum officers’ with authority to make 

threshold determinations concerning 

applicability of the Agreement Between 

the Government of the United States of 

America and the Government of Canada 

regarding asylum claims made in transit 

and at land border ports-of-entry. In the 

Supplementary Information in the 

proposed rule under the heading 

‘‘Paperwork Reduction Act’’ the USCIS 

published a 60 day notice encouraging 

the public to submit comments 

specifically to the information 

collection requirements contained in 8 

CFR 208.30. The USCIS did not receive 

any comments on the information 

collection requirements. Accordingly, 

the USCIS has submitted an information 

collection package to OMB in 

accordance with the PRA and OMB has 

approved this information collection. 

Family Assessment Statement 

The Department has reviewed this 

rule and determined that it may affect 

family well-being as that term is defined 

in section 654 of the Treasury General 

Appropriations Act, 1999, Public Law 

105–277, Div. A. Accordingly, the 

Department has assessed this action in 

accordance with the criteria specified by 

section 654(c)(1). In this rule, an alien 

arriving at a land border port-of-entry 

with Canada may qualify for an 

exception to the Safe Third Country 

Agreement, 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 (‘‘anchor 

relative’’) 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. This rule 

incorporates the Agreement’s definition 

of ‘‘family member,’’ which may be a 

spouse, son, daughter, parent, legal 

guardian, sibling, grandparent, 

grandchild, aunt, uncle, niece, or 

nephew. The ‘‘family member’’

definition was intended to be broad in 

scope to promote family unity. This rule 

thereby strengthens the stability of the 

family by providing a mechanism to 

reunite separated family members in the 

United States. 

In some cases, the rule will have a 

negative effect resulting in the 

separation of family members. The 

Agreement’s exceptions, as expressed in 

the rule, require an anchor relative to 

have either lawful status in the United 

States, other than visitor, or else to be 

18 years of age or older and have a 

pending asylum application. Family 

members who do not meet one of these 

conditions, therefore, would be 

separated under the rule. However, this 

rule’s definition of ‘‘family member,’’

which derives from the exceptions to 

the Agreement, is more generous than 

other family-based immigration laws, 

which require the anchor relative to 

have more permanent status in the 

United States (such as that of citizen, 

lawful permanent resident, asylee or 

refugee) and which have a more 

restricted list of the type of family 

relationships that can be used to 

sponsor someone for immigration to the 

United States (although, unlike those 

laws, this Agreement provides only an 

opportunity to apply for protection and 

does not directly confer an affirmative 

immigration benefit). Under this rule, 

family members will be able to reunite 

even if the anchor relative’s status is 

less than permanent in the United 

States. Further, on a case-by-case basis, 

the Agreement’s ‘‘public interest’’

exception can be used to minimize this 

cost.

List of Subjects 

8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 212 

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, Reporting and 

recordkeeping requirements. 

8 CFR Part 235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements.

Amendments to the Regulations

■ Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is amended 

as follows:

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL

■ 1. 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.

■ 2. Section 208.4 is amended by adding 

a new paragraph (a)(6) to read as follows:

§ 208.4 Filing the application.

* * * * *

(a) * * * 

(6) Safe Third Country Agreement.

Asylum officers have authority to apply 

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

to the determination that the alien may 

be removed to a safe country pursuant 

to a bilateral or multilateral agreement, 

only as provided in 8 CFR 208.30(e). For 

provisions relating to the authority of 

immigration judges with respect to 

section 208(a)(2)(A), see 8 CFR 

1240.11(g).

* * * * *

■ 3. Section 208.30 is amended by:

a. Redesignating paragraph (e)(4) as 

(e)(7); 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69489

b. Redesignating paragraph (e)(2) as 

paragraph (e)(4), and by revising newly 

redesignated paragraph (e)(4); 

c. Redesignating paragraph (e)(3) as 

parargaph(e)(5) and by revising newly 

redesignated paragraph (e)(5); 

d. Adding new paragraphs (e)(2), 

(e)(3), and (e)(6); 

e. Revising paragraph (g)(2)(i), and by 

f. Removing paragraphs (g)(2)(iii) and 

(g)(2))(iv). 

The additions and revisions read as 

follows:

§ 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.

* * * * *

(e) * * * 

(2) An alien will be found to have a 

credible fear of persecution if there is a 

significant possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim and such other facts as are 

known to the officer, the alien can 

establish eligibility for asylum under 

section 208 of the Act or for 

withholding of removal under section 

241(b)(3) of the Act. 

(3) 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, pursuant to 

8 CFR 208.16 or 208.17. 

(4) In determining whether the alien 

has a credible fear of persecution, as 

defined in section 235(b)(1)(B)(v) of the 

Act, or a credible fear of torture, the 

asylum officer shall consider whether 

the alien’s case presents novel or unique 

issues that merit consideration in a full 

hearing before an immigration judge. 

(5) Except as provided in paragraph 

(e)(6) of this section, if an alien is able 

to establish a credible fear of 

persecution or torture but appears to be 

subject to one or more of the mandatory 

bars to applying for, or being granted, 

asylum contained in section 208(a)(2) 

and 208(b)(2) of the Act, or to 

withholding of removal contained in 

section 241(b)(3)(B) of the Act, the 

Department of Homeland Security shall 

nonetheless place the alien in 

proceedings under section 240 of the 

Act for full consideration of the alien’s 

claim, if the alien is not a stowaway. If 

the alien is a stowaway, the Department 

shall place the alien in proceedings for 

consideration of the alien’s claim 

pursuant to 8 CFR 208.2(c)(3). 

(6) Prior to any determination 

concerning whether an alien arriving in 

the United States at a U.S.-Canada land 

border port-of-entry or in transit through 

the U.S. during removal by Canada has 

a credible fear of persecution or torture, 

the asylum officer shall conduct a 

threshold screening interview to 

determine whether such an alien is 

ineligible to apply for asylum pursuant 

to section 208(a)(2)(A) of the Act and 

subject to removal to Canada by 

operation of the 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 Countries (‘‘Agreement’’). In 

conducting this threshold screening 

interview, the asylum officer shall apply 

all relevant interview procedures 

outlined in paragraph (d) of this section, 

provided, however, that paragraph (d)(2) 

of this section shall not apply to aliens 

described in this paragraph. The asylum 

officer shall advise the alien of the 

Agreement’s exceptions and question 

the alien as to applicability of any of 

these exceptions to the alien’s case. 

(i) If the asylum officer, with 

concurrence from a supervisory asylum 

officer, determines that an alien does 

not qualify for an exception under the 

Agreement during this threshold 

screening interview, the alien is 

ineligible to apply for asylum in the 

United States. After the asylum officer’s 

documented finding is reviewed by a 

supervisory asylum officer, the alien 

shall be advised that he or she will be 

removed to Canada in order to pursue 

his or her claims relating to a fear of 

persecution or torture under Canadian 

law. Aliens found ineligible to apply for 

asylum under this paragraph shall be 

removed to Canada. 

(ii) If the alien establishes by a 

preponderance of the evidence that he 

or she qualifies for an exception under 

the terms of the Agreement, the asylum 

officer shall make a written notation of 

the basis of the exception, and then 

proceed immediately to a determination 

concerning whether the alien has a 

credible fear of persecution or torture 

under paragraph (d) of this section. 

(iii) An alien qualifies for an 

exception to the Agreement if the alien 

is not being removed from Canada in 

transit through the United States and 

(A) Is a citizen of Canada or, not 

having a country of nationality, is a 

habitual resident of Canada;

(B) Has in the United States a spouse, 

son, daughter, parent, legal guardian, 

sibling, grandparent, grandchild, aunt, 

uncle, niece, or nephew who has been 

granted asylum, refugee, or other lawful 

status in the United States, provided, 

however, that this exception shall not 

apply to an alien whose relative 

maintains only nonimmigrant visitor 

status, as defined in section 

101(a)(15)(B) of the Act, or whose 

relative maintains only visitor status 

based on admission to the United States 

pursuant to the Visa Waiver Program; 

(C) Has in the United States a spouse, 

son, daughter, parent, legal guardian, 

sibling, grandparent, grandchild, aunt, 

uncle, niece, or nephew who is at least 

18 years of age and has an asylum 

application pending before U.S. 

Citizenship and Immigration Services, 

the Executive Office for Immigration 

Review, or on appeal in federal court in 

the United States; 

(D) Is unmarried, under 18 years of 

age, and does not have a parent or legal 

guardian in either Canada or the United 

States; 

(E) Arrived in the United States with 

a validly issued visa or other valid 

admission document, other than for 

transit, issued by the United States to 

the alien, or, being required to hold a 

visa to enter Canada, was not required 

to obtain a visa to enter the United 

States; or 

(F) The Director of USCIS, or the 

Director’s designee, determines, in the 

exercise of unreviewable discretion, that 

it is in the public interest to allow the 

alien to pursue a claim for asylum, 

withholding of removal, or protection 

under the Convention Against Torture, 

in the United States. 

(iv) As used in 8 CFR 

208.30(e)(6)(iii)(B), (C) and (D) only, 

‘‘legal guardian’’ means a person 

currently vested with legal custody of 

such an alien or vested with legal 

authority to act on the alien’s behalf, 

provided that such an alien is both 

unmarried and less than 18 years of age, 

and provided further that any dispute 

with respect to whether an individual is 

a legal guardian will be resolved on the 

basis of U.S. law.

* * * * *

(g) * * * 

(2) * * * 

(i) Immigration judges will review 

negative credible fear findings as 

provided in 8 CFR 1208.30(g)(2).

* * * * *

PART 212—DOCUMENTARY 

REQUIREMENTS; NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSILE ALIENS; PAROLE

■ 4. The authority citation for part 212 

continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1102, 

1103, 1182 and note, 1184, 1187, 1223, 1225, 

1226, 1227.

■ 5. Section 212.5 is amended by adding 

a new paragraph (e)(2)(iii) to read as 

follows:

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