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[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Proposed Rules]
[Pages 67099-67102]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28117]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 210 / Monday, October 31, 2011 / 
Proposed Rules

[[Page 67099]]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1208 and 1240

[EOIR Docket No. 173; AG Order No. 3307-2011]
RIN 1125-AA65

Forwarding of Asylum Applications to the Department of State

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice is planning to amend its regulations 
to alter the process by which the Executive Office for Immigration 
Review (EOIR) forwards asylum applications for consideration by the 
Department of State (DOS). Currently, EOIR forwards to DOS all asylum 
applications that are submitted initially in removal proceedings before 
an immigration judge. The proposed rule would amend the regulations to 
provide for sending asylum applications to DOS on a discretionary 
basis. For example, EOIR could forward an application in order to 
ascertain whether DOS has information relevant to the applicant's 
eligibility for asylum. This change would increase the efficiency of 
DOS's review of asylum applications and is consistent with similar 
changes already made by U.S. Citizenship and Immigration Services 
(USCIS), Department of Homeland Security (DHS).

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before December 30, 2011. Comments received by mail 
will be considered timely if they are postmarked on or before that 
date. The electronic Federal Docket Management System will accept 
comments until Midnight Eastern Time at the end of that day.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 173, 
by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Robin M. Stutman, General Counsel, Executive Office 
for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, 
VA 22041. To ensure proper handling, please reference EOIR Docket No. 
173 on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Robin M. Stutman, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 22041. Contact Telephone Number (703) 305-0470.

FOR FURTHER INFORMATION CONTACT: Robin M. Stutman, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. EOIR also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
Comments that will provide the most assistance to EOIR in developing 
these procedures will reference a specific portion of the rule, explain 
the reason for any recommended change, and include data, information, 
or authority that support such recommended change.
    All submissions received should include the agency name and EOIR 
Docket No. 173 for this rulemaking. Please note that all comments 
received are considered part of the public record and made available 
for public inspection at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name, address, 
etc.) voluntarily submitted by the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. To inspect the 
agency's public docket file in person, you must make an appointment 
with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT 
paragraph above for agency counsel's contact information.

II. Background

    The EOIR regulations pertaining to asylum applications, at 8 CFR 
1208.11(a), currently state: ``The Service shall forward to the 
Department of State a copy of each completed application it receives. 
At its option, the Department of State may provide detailed country 
conditions information relevant to eligibility for asylum or 
withholding of removal.'' The EOIR regulations for removal proceedings, 
at 8 CFR 1240.11(c)(2), currently state: ``Upon receipt of an 
application that has not been referred by an asylum officer, the 
Immigration Court shall forward a copy to the Department of State 
pursuant to Sec.  1208.11 of this chapter.'' That statement is repeated 
in 8 CFR 1240.33(b) and 1240.49(c)(3) (providing the same procedure for 
exclusion and deportation proceedings, respectively, that were 
initiated before April 1, 1997). In addition, the regulations at 8 CFR 
1208.11(c) provide that ``immigration judges may request specific 
comments from the Department of State regarding individual cases or 
types of claims under consideration, or such other information as they 
deem appropriate.''

[[Page 67100]]

    EOIR receives and adjudicates asylum applications \1\ where aliens 
in immigration proceedings submit the asylum application directly to 
the immigration judge (known as defensive asylum applications). EOIR 
also receives and adjudicates asylum applications that are referred for 
consideration in proceedings before an immigration judge after being 
initially adjudicated through DHS USCIS's affirmative asylum process 
(known as affirmative asylum applications).
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    \1\ We note that the regulations at 8 CFR 1208.1(a)(1) provide, 
in part, that subpart A of part 1208 ``shall apply to all 
applications for asylum under section 208 of the Immigration and 
Nationality Act (Act) or for withholding of deportation or 
withholding of removal under section 241(b)(3) of the Act, or under 
the Convention Against Torture.'' Thus, the terms ``asylum 
application'' or ``application for asylum,'' as used in the current 
regulations and in this proposed rule, refer to an application for: 
(1) Asylum under section 208 of the Act; (2) withholding of removal 
under section 241(b)(3) of the Act; (3) withholding or deferral of 
removal under the Convention Against Torture as provided in 8 CFR 
1208.16 and 1208.17; and (4) withholding of deportation under former 
section 243(h) of the Act.
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    Currently, the Immigration Court is required to send a copy of each 
defensively filed asylum application to DOS for review. In fiscal years 
2008 (15,367), 2009 (14,509), and 2010 (14,210), EOIR received, on 
average 14,695 defensively filed asylum applications and forwarded a 
copy of each application to DOS.\2\ Similarly, USCIS received 25,680 
affirmative asylum applications in fiscal year 2007, 25,497 in fiscal 
year 2008, and 11,322 from October 1, 2008, until March 31, 2009. USCIS 
forwarded a copy of each of these affirmative applications to DOS.\3\
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    \2\ These fiscal year receipt numbers for defensively filed 
asylum cases are based on the date that the Form I-589, Application 
for Asylum and for Withholding of Removal, is filed with the EOIR 
Immigration Courts. These numbers differ from the data contained in 
the Statistical Year Books prepared by EOIR, which is tied to the 
date the removal case was filed at EOIR.
    \3\ As noted later in this preamble, USCIS has already made 
similar changes to its corresponding regulations at 8 CFR 208.11. 
See 74 FR 15367 (Apr. 6, 2009). USCIS's revised regulations took 
effect on April 6, 2009. Since that date, USCIS has no longer been 
forwarding to DOS a copy of each affirmative asylum application it 
receives.
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III. Reasons for Change

    DOS has indicated that it does not have the resources to review 
many of the asylum applications forwarded to it. DOS has determined 
that the current process of forwarding every asylum application to DOS 
is not an efficient method because it does not provide a means for the 
agencies to identify particular cases for which DOS review might be 
expected to yield the most value.
    To address this problem, DOS has requested EOIR to alter the 
process by which EOIR forwards asylum applications to DOS. This 
proposed rule would change the process to permit the immigration judge, 
in his or her discretion, to send asylum applications for consideration 
by DOS. For instance, an immigration judge could forward those 
applications where DOS could potentially have information relevant to 
the applicant's eligibility for asylum, withholding of removal under 
241(b)(3) of the Immigration and Nationality Act (Act), or withholding 
of removal under the Convention Against Torture. DOS may have 
information helpful to the adjudication of the application, including 
information that confirms publicly available information or information 
that is not otherwise available.
    EOIR notes that USCIS has already made similar changes to its 
corresponding regulations at 8 CFR 208.11, with respect to affirmative 
asylum applications filed with USCIS. See 74 FR 15367 (Apr. 6, 2009).
    As noted earlier, the EOIR regulations at 8 CFR 1208.11(c) already 
provide that the immigration judges may forward to DOS for review and 
comment select applications as the judges deem appropriate. This 
process, which has been in place for years, has been a productive means 
by which immigration judges obtain country conditions information on 
specific cases. EOIR and DOS intend to maintain this process, as 
provided in the amended regulations at 8 CFR 1208.11(a).
    DOS's Bureau of Democracy, Human Rights and Labor (DRL), the Bureau 
to which the asylum applications are forwarded, brings its country 
conditions expertise to asylum matters in a variety of ways, which as a 
whole are referred to as DRL's asylum function. Consistent with the 
regulations currently at 8 CFR 1208.11(c), and with USCIS's 
corresponding regulations at 8 CFR 208.11, DRL may, at its discretion, 
respond to requests for comments on cases specifically brought to its 
attention by EOIR immigration judges and USCIS's Asylum Division. Under 
the amended regulations at 8 CFR 1208.11(a), DRL will continue to fill 
this role with respect to requests from immigration judges.\4\ DRL also 
produces updated issue papers or ``country profiles'' for use in asylum 
adjudications, and it responds to certain DHS Immigration and Customs 
Enforcement requests for document verification in asylum cases before 
EOIR. Additionally, DRL produces annual Country Reports on Human Rights 
Practices and annual International Religious Freedom Reports, which 
provide country conditions information useful to the adjudication of 
asylum applications. The amendments to the regulations being made in 
this proposed rule will not alter these functions.
---------------------------------------------------------------------------

    \4\ DRL continues to fill this role with respect to requests 
from USCIS as well. As noted earlier in the preamble, USCIS has 
already made similar changes to its corresponding regulations at 8 
CFR 208.11. See 74 FR 15367 (Apr. 6, 2009). Prior to these changes, 
USCIS requests for information on particular cases were authorized 
by 8 CFR 208.11(c). Currently, such requests are provided for in 8 
CFR 208.11(a).
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IV. Description of the Proposed Rule

    This proposed rule amends the regulations at 8 CFR 1208.11, 
1240.11, 1240.33, and 1240.49 as follows. This rule revises the 
sentence in each of those sections requiring the Immigration Court to 
forward each asylum application to DOS. Under this proposed rule, the 
Immigration Court may forward asylum applications to DOS, but is not 
required to do so. This change will permit EOIR to exercise discretion 
to forward those applications. For instance, EOIR might wish to 
ascertain whether DOS has information relevant to the adjudication of a 
particular case or types of claims.
    By consolidating certain paragraphs, the proposed rule also removes 
redundant references to the types of information that DOS may provide 
to EOIR.
    This proposed change in the regulations will not require additional 
resources, either in the training or hiring of personnel at EOIR or DOS 
or in the expenditure of material or financial resources. In fact, 
altering the regulations will permit both EOIR and DOS to conserve 
resources. EOIR will no longer be required to expend resources on 
mailing to DOS every properly filed defensive asylum application it 
receives. Although EOIR will discontinue mailing to DOS every properly 
filed defensive asylum application EOIR receives, EOIR will maintain 
the practice of permitting an immigration judge to request, in his or 
her discretion, specific comments from DOS regarding individual cases 
or types of claims under consideration, or other such information as he 
or she deems appropriate. As noted earlier, this practice is currently 
provided by the regulations at 8 CFR 1208.11(c). It will be covered by 
the amended regulations at 8 CFR 1208.11(a). By focusing on

[[Page 67101]]

select cases forwarded by EOIR, DRL's officers will be able to best 
utilize their time and resources toward accomplishing their asylum 
responsibilities. A change in the regulations will also result in 
resource savings for asylum applicants, as applicants will no longer be 
required to make an extra copy of their application for EOIR to forward 
to DOS, as currently required by the instructions to the Form I-589 
asylum application.
    The types of comments that DOS may provide will not change. At its 
option, DOS may provide detailed country conditions information 
relevant to the applicant's eligibility for asylum and for withholding 
of removal. DOS may also provide an assessment of the accuracy of the 
applicant's assertions about conditions in the applicant's country of 
nationality or habitual residence and the applicant's particular 
situation, information about whether persons who are similarly situated 
to the applicant are persecuted or tortured in their respective country 
of nationality or habitual residence and the frequency of such 
persecution or torture, or such other information as DOS deems 
relevant.
    Additionally, this proposed rule makes additional amendments in 
order to be consistent with changes that have occurred with the 
implementation of the Homeland Security Act of 2002. The Homeland 
Security Act authorized the creation of DHS and transferred the 
functions of the former Immigration and Naturalization Service (INS) to 
DHS, while retaining EOIR under the authority of the Attorney General. 
In order to accommodate these changes, title 8 of the Code of Federal 
Regulations was reorganized into separate chapters, chapter I for DHS 
and chapter V for the Department of Justice. See 68 FR 9824, 9834 (Feb. 
28, 2003). The provisions of part 208, on procedures for asylum and 
withholding of removal, were duplicated into a new part 1208. As a 
result, part 208 governs asylum adjudications before DHS's USCIS and 
part 1208 governs asylum adjudications before EOIR. As this proposed 
rule only addresses submissions of asylum applications from EOIR to 
DOS, it is limited to amending 8 CFR 1208.11, 1240.11, 1240.33, and 
1240.49. To be consistent with changes that have occurred with 
implementation of the Homeland Security Act, it removes references in 
EOIR's regulations to ``The Service'' and USCIS ``asylum officers'' 
forwarding asylum applications to DOS, as those matters are now 
governed by the DHS regulations at 8 CFR 208.11.
    Finally, this proposed rule also amends part 1240 to cite to the 
correct regulatory provision regarding filing of an asylum application 
as provided in 8 CFR 1208.4(b). The regulations at 8 CFR 1240.11(c)(2) 
and 8 CFR 1240.33(b) currently cite incorrectly to 8 CFR 1208.4(c) and 
will be corrected to cite to 8 CFR 1208.4(b). This change is consistent 
with 8 CFR 1240.49(c)(3). These amendments are technical corrections 
and do not make any substantive changes to part 1240.

V. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities for the following reason: This rule affects 
only the process by which EOIR forwards and DOS receives asylum 
applications. The rule will not regulate ``small entities'' as that 
term is defined in 5 U.S.C. 601(6).

B. 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.

C. 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 Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

D. Executive Order 12866

    The Department has determined that this rule is not a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and, accordingly, this rule has not 
been submitted to the Office of Management and Budget for review. 
Nevertheless, the Department certifies that this regulation has been 
drafted in accordance with the principles of Executive Order 12866, 
section 1(b).
    The benefits of this proposed rule to the United States include a 
significant reduction of money spent (1) by EOIR to process and mail a 
copy of each asylum application to DOS, (2) by DOS to receive each 
asylum application, and (3) by asylum applicants to include an extra 
copy of their asylum application in their application packet. 
Currently, the total estimated cost to EOIR, DOS, and the public for 
this process of forwarding all defensive asylum applications is 
$246,014.00 (rounded to the nearest whole number) per year. This amount 
is based on the estimated cost to asylum applicants of $0.10 per 
photocopied page for an average of 14,695 defensive asylum applications 
filed in fiscal years 2008, 2009, and 2010, with an approximate 125 
pages per asylum application (including supporting documentation), 
which comes to a total of $183,688.00 (rounded to the nearest whole 
number). Thus, altering the regulation will result in significant cost 
savings to the public by eliminating the cost to asylum applicants of 
submitting the third copy of the asylum application to EOIR.
    Additionally, the cost of EOIR mailing each application to DOS is 
estimated at $2.54 per application. This figure is based on the cost 
per application of $1.00 for postage, $1.44 in employee costs, and 
$0.10 per envelope. EOIR's total annual cost of mailing asylum 
applications to DOS is $37,326.00 (rounded to the nearest whole 
number). The annual cost in human labor of DOS's receipt, storage, and 
disposition of files is estimated at $25,000. This figure includes 
$20,000 spent annually on GS-9, step 5 employees handling received 
asylum applications by unpacking, sorting, removing staples, and 
processing asylum applications for disposal for 3 hours per day, 52 
days per year. It also includes $5,000 spent annually on the 
incineration of asylum applications, based on an estimate of personnel 
hours, materials, and transportation to the incinerators.
    With the amendments made by this proposed rule, EOIR would 
discontinue forwarding every defensive asylum application to DOS. 
Instead, the Immigration Courts would continue to forward select 
individual applications where the immigration judges wish to ascertain 
whether DRL may have information relevant to the applicant or the 
applicant's situation. This process involves EOIR employees forwarding 
the asylum application and supplemental material to the appropriate 
person within DRL. DRL's

[[Page 67102]]

officers would review the file, conduct research, and have the option 
of responding, including with relevant country conditions information. 
The immigration judges would then take the relevant information into 
account in determining eligibility for asylum in individual cases. This 
commenting process already occurs and is already authorized in the 
regulations, so it is not included in the costs that an amended 
regulation would eliminate. Hence, altering the regulations will permit 
EOIR and DOS to save approximately $62,326.00 a year on the forwarding 
of all defensive asylum applications received by EOIR.
    Once a final rule is issued, it is anticipated that EOIR and USCIS 
will work to modify the instructions to the Form I-589 asylum 
application to reflect the changes.

E. Executive Order 13132: Federalism

    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.

F. 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.

G. Paperwork Reduction Act

    The information collection requirement (Form I-589) contained in 
this rule has been previously approved by the Office of Management and 
Budget under the provisions of the Paperwork Reduction Act. This rule 
does not contain a new or revised information collection.

List of Subjects

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

    Accordingly, for the reasons set forth in the preamble, part 1208 
and part 1240 of chapter V of title 8 of the Code of Federal 
Regulations are proposed to be amended as follows:

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

    1. The authority citation for part 1208 continues to read as 
follows:

    Authority:  8 U.S.C. 1103, 1158, 1225, 1231, 1282.

    2. Section 1208.11 is revised to read as follows:

Sec.  1208.11  Comments from the Department of State.

    (a) The immigration judge may request, in his or her discretion, 
specific comments from the Department of State regarding individual 
cases or types of claims under consideration, or such other information 
as an immigration judge deems appropriate.
    (b) With respect to any asylum application, the Department of State 
may provide, at its discretion, to the Immigration Court:
    (1) Detailed country conditions information relevant to eligibility 
for asylum, withholding of removal under section 241(b)(3) of the Act, 
and withholding of removal under the Convention Against Torture;
    (2) An assessment of the accuracy of the applicant's assertions 
about conditions in the applicant's country of nationality or habitual 
residence and the applicant's particular situation;
    (3) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in their respective country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
    (4) Such other information as it deems relevant.
    (c) Any comments received pursuant to paragraph (b) of this section 
shall be made part of the record. Unless the comments are classified 
under the applicable Executive Order, the applicant shall be provided 
an opportunity to review and respond to such comments prior to the 
issuance of any decision to deny the application.
* * * * *

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    3. The authority citation for part 1240 continues to read:

    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).

    4. Amend Sec.  1240.11 by revising paragraph (c)(2) to read as 
follows:

Sec.  1240.11  Ancillary matters, applications.

* * * * *
    (c) * * *
    (2) An application for asylum or withholding of removal must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, from the Department of State, unless classified under the 
applicable Executive Order, shall be given to both the alien and to DHS 
counsel and shall be included in the record.
* * * * *
    5. Amend Sec.  1240.33 by revising paragraph (b) to read as 
follows:

Sec.  1240.33  Applications for asylum or withholding of deportation.

* * * * *
    (b) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, from the Department of State, unless classified under the 
applicable Executive Order, shall be given to both the applicant and to 
DHS counsel and shall be included in the record.
* * * * *
    6. Amend Sec.  1240.49 by revising paragraph (c)(3) to read as 
follows:

Sec.  1240.49  Ancillary matters, applications.

* * * * *
    (c) * * *
    (3) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec.  1208.4(b) of this 
chapter. Upon receipt of an application, the Immigration Court may 
forward a copy to the Department of State pursuant to Sec.  1208.11 of 
this chapter and shall calendar the case for a hearing. The reply, if 
any, of the Department of State, unless classified under the applicable 
Executive Order, shall be given to both the applicant and to DHS 
counsel and shall be included in the record.
* * * * *

    Dated: October 21, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-28117 Filed 10-28-11; 8:45 am]
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