Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76121

§ 774.21 [Reserved]

§ 774.22 Loan closing.

(a) Conditions. The applicant must

meet all conditions specified by the loan

approval official in the notification of

loan approval prior to closing.

(b) Loan instruments and legal

documents. The applicant will execute

all loan instruments and legal

documents required by the Agency to

evidence the debt, perfect the required

security interest in the bankruptcy

claim, and protect the Government’s

interest, in accordance with applicable

State and Federal laws. In the case of an

entity applicant, all officers or partners

and any board members also will be

required to execute the promissory

notes as individuals.

(c) Fees. The applicant will pay all

loan closing fees for recording any legal

instruments determined to be necessary

and all notary, lien search, and similar

fees incident to loan transactions. No

fees will be assessed for work performed

by Agency employees.

§ 774.23 Loan servicing.

Loans will be serviced in accordance

with subpart J of part 1951 of this title,

or its successor regulation. If the loan is

not repaid as agreed and default occurs,

servicing will proceed in accordance

with section 1951.468 of that part.

§ 774.24 Exception.

The Agency may grant an exception to

any of the requirements of this section,

if the proposed change is in the best

financial interest of the Government and

not inconsistent with the authorizing

statute or other applicable law.

Signed at Washington, D.C., on November

29, 2000.

August Schumacher, Jr.,

Under Secretary for Farm and Foreign

Agricultural Services.

[FR Doc. 00–30977 Filed 12–5–00; 8:45 am]

BILLING CODE 3410–05–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 208

[INS Order No. 1865–97; AG Order No.

2340–2000]

RIN 1115–AE93

Asylum Procedures

AGENCY: Immigration and Naturalization

Service, Justice; and Executive Office for

Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule amends the

Department of Justice regulations

implementing the provisions of the

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(IIRIRA), governing asylum claims.

Additionally, this rule amends portions

of the regulations governing cases in

which an applicant has established past

persecution or in which an applicant

may be able to avoid persecution in a

particular country by relocating to

another area of that country. Finally, the

rule identifies factors that may be

considered in the exercise of discretion

in asylum cases in which the alien has

established past persecution but may

not have a well-founded fear of future

persecution. This final rule will ensure

that asylum applications are processed

in accordance with the Immigration and

Nationality Act (Act), as amended by

IIRIRA, as well as with international

instruments.

DATES: This rule is effective January 5,

2001.

FOR FURTHER INFORMATION CONTACT: For

matters relating to the Immigration and

Naturalization Service—Joanna Ruppel,

International Affairs, Department of

Justice, Immigration and Naturalization

Service, 425 I Street NW., ULLICO third

floor, Washington, DC 20536, telephone

(202) 305–2663. For matters relating to

the Executive Office for Immigration

Review—Charles Adkins-Blanch,

General Counsel, Executive Office for

Immigration Review, Suite 2400, 5107

Leesburg Pike, Falls Church, Virginia

22041, telephone (703) 305–0470.

SUPPLEMENTARY INFORMATION:

I. Background

Regulations To Implement the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996

On March 6, 1997, the Service and

EOIR jointly published in the Federal

Register, at 62 FR 10312, an interim rule

to implement Public Law 104–208 (110

Stat. 3546) (IIRIRA). That legislation

significantly amended several parts of

the Immigration and Nationality Act

(‘‘Act’’ or ‘‘INA’’), including part 208.

The interim regulations implementing

IIRIRA were preceded by a notice of

proposed rulemaking, published in the

Federal Register on January 3, 1997, at

62 FR 444, and providing a 30-day

comment period. The interim rule

provided a 120-day comment period.

The Department of Justice (Department)

received 39 comments on the interim

rule in addition to the 124 comments

already received as a result of the

proposed rule. This final rule reflects

further changes resulting from

comments received in response to both

the original proposed rule and the

interim rule.

Proposed Rule Regarding Past

Persecution, Internal Relocation, and

Discretion (Past Persecution Rule)

On June 11, 1998, at 63 FR 31945, the

Service and EOIR jointly published in

the Federal Register a proposed rule to

change portions of 8 CFR 208.13 and

208.16 in order to provide further

guidance on adjudicating asylum cases

and withholding of removal cases when

an applicant has established past

persecution and when the applicant

may be able to avoid persecution in his

or her home country by relocating to

another area of that country. The rule

proposed to establish new guidelines

concerning the Attorney General’s

exercise of discretion in cases in which

past persecution is established, and the

types of evidence that may be

considered in determining whether an

applicant has a well-founded fear of

future persecution. Additionally, the

rule proposed to identify new factors

that could be considered in the

determination whether to grant asylum

when an applicant has established past

persecution but no longer has a wellfounded fear of future persecution. The

Department received 35 comments on

the proposed past persecution rule.

The Department has elected to split

part 208 from the rest of the IIRIRA

interim regulations and to incorporate

amendments to part 208 into this final

rule based both on comments to the

IIRIRA interim rule and on comments to

the June 1998 proposed rule regarding

past persecution. In the future, the

Department will publish a proposed

rule concerning the definition of

‘‘persecution’’ and the definition of

‘‘particular social group.’’ Those new

proposals are based in part on certain of

the provisions being made final in this

rule.

II. Comments

Most of the commenters on both the

interim IIRIRA rule and proposed past

persecution rule represented either

attorney organizations or voluntary

organizations predominantly involved

with refugees and asylum claimants.

The Department also received

comments from individual attorneys

and the regional representative of

United Nations High Commissioner for

Refugees (UNHCR). Since many of the

comments were duplicative or endorsed

the submissions of other commenters,

the Department will address the

comments by section and topic, rather

than reference each comment and

commenter. The following discussion

76122 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

also identifies amendments made by the

Department to clarify and streamline the

regulations as part of the

Administration’s reinvention and

regulation streamlining initiative.

§ 208.2—Jurisdiction

To clarify jurisdiction over asylum

applications, the Department has

reorganized and revised this section as

follows:

(1) Language has been added to

§ 208.2(a) to establish that the Office of

International Affairs has initial

jurisdiction over credible fear

determinations under § 208.30 and

reasonable fear determinations under

§ 208.31.

(2) Language in § 208.2(a) relating to

the filing of a complete application has

been removed as redundant with the

provisions of § 208.3.

(3) Section 208.2(b)(3) has been

redesignated as § 208.2(b) to provide a

general description of Immigration

Court jurisdiction, relevant to the

majority of asylum applications

adjudicated in Immigration Court, prior

to discussion of the more limited

jurisdiction applicable in circumstances

described in new § 208.2(c).

(4) The first sentence in new

§ 208.2(b) (formerly § 208.2(b)(3)),

which refers to an immigration judge’s

jurisdiction over asylum applications

‘‘after a copy of the charging document

has been filed with the Immigration

Court,’’ has been amended. The

Department has removed the words ‘‘a

copy of’’ from that sentence because, in

general, only the charging document

with the original signature of the

Service officer who issued the charging

document may be filed with the

Immigration Court. The Department also

amended the last sentence in § 208.2(b)

to establish that immigration judges

have exclusive jurisdiction over credible

fear determinations that have been

referred to the Immigration Court

pursuant to § 208.30, as well as

reasonable fear determinations that have

been referred to the Immigration Court

pursuant to § 208.31. In addition, the

reference to ‘‘Executive Office for

Immigration Review’’ has been replaced

with ‘‘Immigration Court’’ because only

immigration judges have jurisdiction

over credible fear and reasonable fear

review proceedings.

(5) Section 208.2(b)(1) has been

redesignated as § 208.2(c), governing

asylum and withholding proceedings for

those aliens not entitled to removal

proceedings under section 240 of the

Act. Section 208.2(c)(1) relates to aliens

who are not entitled to proceedings

under section 240 of the Act and are

eligible to apply only for asylum and

withholding of removal. Section

208.2(c)(2) relates to jurisdiction over

proceedings that are limited to requests

for withholding of removal pursuant to

§ 208.31, after an alien subject to

reinstatement of a prior order under

section 241(a)(5) of the Act or

administrative removal under section

238(b) of the Act has been found to have

a reasonable fear.

(6) The Department has rewritten the

language of § 208.2(c)(1)(v) (formerly

§ 208.2(b)(1)(v)), to clarify the existing

rules relating to cases falling under

section 235(c) of the Act. Section 235(c)

provides an expedited removal process

for certain aliens who are suspected of

being inadmissible on national security

grounds; the Service has the authority to

order such an alien removed without

further inquiry or hearing by an

immigration judge, as provided in

§ 235.8 of this chapter.

The current regulatory scheme

provides adequate safeguards to ensure

that the expedited nature of removal

under section 235(c) is balanced against

the right to apply for asylum in

appropriate cases. An immigration

officer or immigration judge must

initiate certain procedures described in

8 CFR 235.8 when an arriving alien is

suspected of being inadmissible on

security or related grounds. Only after

those procedures have been completed

and a permanent order of

inadmissibility is issued would the

question arise regarding eligibility for

asylum or withholding of removal.

Although some categories of persons

found inadmissible on those grounds

are ineligible for asylum, other persons,

such as those found inadmissible based

on membership in a terrorist

organization, remain eligible for asylum.

The Regional Director is authorized to

pretermit an asylum application for

aliens who have been issued a

permanent order of inadmissibility.

However, in some cases, and in the

exercise of prosecutorial discretion, the

Regional Director may choose to place

persons found subject to removal under

section 235(c) of the Act, but who are

not subject to the bars to asylum, in

asylum-only proceedings under

§ 208.2(c)(1) by issuing a Form I–863,

Notice of Referral to Immigration Judge.

In those cases in which the Service has

affirmatively decided to place an alien

in asylum-only proceedings and has

issued a Form I–863, the immigration

judge would then have jurisdiction to

hear the alien’s asylum application. Of

course, unless the Service has issued a

Form I–863 to an alien who is found to

be removable under section 235(c) of the

Act, the immigration judges have no

jurisdiction with respect to those cases.

The Department further notes that

§ 235.8 of this chapter, as amended by

the regulations implementing the

Convention Against Torture, expressly

limits the applicability of § 208.2.

Section 235.8(b)(4) specifically states

that persons seeking withholding under

section 241(b)(3) of the Act or the

Convention Against Torture are not

subject to the ‘‘provisions of part 208 of

this chapter relating to consideration or

review by an immigration judge, the

Board of Immigration Appeals or an

asylum officer.’’ Instead, it is the

Service’s responsibility to ensure that

no removals are conducted under

section 235(c) that violate our

international obligations; the process for

making such a determination remains

within the Service’s control.

(7) Section 208.2(c)(1)(vi) [formerly

section 208.2(b)(1)(vi)] has been

amended to clarify that the exclusive

jurisdiction of the immigration judge

comes into effect only when the district

director refers an alien described in this

provision for a hearing that is limited to

asylum and withholding of removals.

(8) In § 208.2(c)(3)(i) (formerly

§ 208.2(b)(2)(i)), which describes rules

of procedures, the reference to ‘‘8 CFR

part 240’’ in the first sentence has been

amended to read ‘‘8 CFR part 240,

subpart A,’’ to clarify that hearings

limited to eligibility for asylum and/or

withholding of removal shall be

conducted under the same procedures

that apply in removal proceedings.

(9) Section § 208.2(b)(2)(ii) has been

redesignated as § 208.2(c)(3)(ii), but

otherwise is unchanged.

(10) Section 208.2(b)(2)(iii) has been

redesignated as § 208.2(c)(3)(iii).

Additionally, it has been amended by

removing reference to sections 208,

212(h), 212(i) of the Act and by adding

an exception based on a showing of

exceptional circumstances, in order to

reflect the statutory language in section

240(b)(7) of the Act.

§ 208.3—Form of Application

The name of the Form I–589,

Application for Asylum and

Withholding of Removal, as it appeared

in § 208.3(a) has been corrected to

‘‘Form I–589, Application for Asylum

and for Withholding of Removal.’’

Section 208.3(c)(4) has been corrected to

reflect that section 274C of the Act

provides for criminal as well as civil

penalties for knowingly placing false

information on an Application.

§ 208.4—Filing the Application

A considerable number of comments

were received regarding the 1-year filing

deadline contained in section

208(a)(2)(B) of the Act and the

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76123

provisions for exemption contained in

section 208(a)(2)(D) of the Act relating

to changed conditions.

Some commenters took issue with the

deadline itself. While the Department

understands the concerns of those

commenters, the 1-year filing deadline

is a statutory requirement and therefore

cannot be removed by rulemaking.

Some commenters suggested that an

asylum officer or immigration judge

should question an applicant before an

application can be rejected as untimely

filed. This suggestion has been adopted

for two reasons. First, the decision on a

tardy filing issue can best be made only

after an asylum officer, in an interview,

or immigration judge, in a hearing, has

given an applicant the opportunity to

present any relevant and useful

information bearing on any prohibitions

on filing. Second, for applicants who are

placed in removal proceedings, the

immigration judge must still determine

whether the applicant is eligible for

withholding of removal, even if it is

found that the alien is ineligible to

apply for asylum.

Language in § 208.4(a)(2)(ii) was

added for consistency with § 1.1(h),

which defines the term ‘‘day’’ for

computing the period of time for taking

action provided in 8 CFR. When

calculating the one-year period when

the last day of the period falls on a

Saturday, Sunday, or legal holiday, the

period shall run until the end of the

next day that is not a Saturday, Sunday,

or legal holiday. One commenter

suggested that the Department consider

the filing of an asylum application to be

the date the application is mailed or

otherwise sent to the Service or

Immigration Court. This suggestion has

been adopted in part. For an application

filed with the Service, an application is

considered to have been filed on the

date it is received by the Service. In a

case in which the 1-year filing deadline

has not been met, however, if the

applicant provides clear and convincing

documentary evidence of mailing the

application within the 1-year period, the

mailing date shall be considered the

filing date. For a case before the

Immigration Court or the Board of

Immigration Appeals (Board), an asylum

application is considered to have been

filed on the date it is received by the

Court or the Board.

In addition, other references to filing

an application in paragraph (a) relating

to ‘‘submission of,’’ ‘‘submitted,’’ or

‘‘applied for’’ have also been changed to

‘‘filed’’ in order to make language in the

section consistent. Language was also

added to reflect that the provisions of

this section apply to asylum

applications decided by an asylum

officer, an immigration judge, or the

Board.

Many commenters recommended a

change in the language of § 208.4(a)(4)

and § 208.4(a)(5) that would indicate the

list of circumstances is not all-inclusive.

That suggestion has been adopted.

The Department agreed with several

of the recommended amendments to

§ 208.4(a)(4), relating to changed

circumstances. First, the Department

eliminated the requirement that the

changed circumstances be ‘‘objective.’’

The modifier ‘‘objective’’ was removed

to avoid confusion in cases where, for

example, the changed circumstance

relates to a subjective choice an

applicant has made, such as a religious

conversion or adoption of political

views. Additionally, the Department

eliminated the requirement that the

changed circumstances occur within the

United States, because there may be

situations in which the changed

circumstances, such as religious

conversion, took place outside the

United States, but not in the applicant’s

home country. The Department also

specified that cessation of the requisite

relationship between a principal

applicant and a dependent after the

dependent has been included in the

principal applicant’s application as a

derivative applicant may constitute a

changed circumstance. Finally, the

Department clarified that an adjudicator

must take into account an applicant’s

delayed awareness of a changed

circumstance, such as events in the

home country, when determining

whether a period of delay is reasonable.

Section 208.4(a)(5), relating to

extraordinary circumstances, has been

revised to reflect the numerous

comments regarding the current list of

circumstances that may constitute

extraordinary circumstances. The

Department has added additional

circumstances to the non-exhaustive

list, as discussed below. Additionally,

the Department has changed the word

‘‘shall’’ in the second sentence of

paragraph (a)(5) to ‘‘may’’ to better

reflect the statutory language in section

208(a)(2)(D) and to reinforce the

necessity of analyzing each case on an

individual basis. The Department has

also added language to the burden of

proof requirement to specify clearly that

the applicant bears the burden to

demonstrate that the delay was

reasonable under the circumstances.

With respect to § 208.4(a)(5), some

commenters suggested that

extraordinary circumstances not be

limited to factors beyond the alien’s

control. That suggestion has been

partially adopted. While it is hard to

imagine a situation that both would be

entirely within the alien’s control and

would also prevent him or her from

filing the application, it is not difficult

to imagine qualifying situations in

which the alien might be forced to

choose between the lesser of two evils,

or the alien might be able to exercise a

limited amount of control. The

regulation has been amended to provide

that the alien must not have

intentionally created the circumstance.

Additionally, the phrase ‘‘but for

those circumstances he or she would

have been able to file the application

within the 1-year period’’ has been

modified to ensure consistency with the

statutory language to read ‘‘those

circumstances were directly related to

the alien’s failure to file the application

within the 1-year period.’’

In § 208.4(a)(5)(i), the phrase ‘‘of

significant duration,’’ in reference to an

experience of serious illness or

disability, was removed to allow for a

situation in which the timing of an

applicant’s serious illness or disability

prohibited him or her from filing the

asylum application within one year of

the individual’s arrival in the United

States, even though the illness or

disability was of short duration.

Several commenters recommended

that the list of extraordinary

circumstances be expanded to include

maintaining valid immigrant or

nonimmigrant status, in addition to

maintaining Temporary Protected

Status. The Department has accepted

the recommendation because there are

sound policy reasons to permit persons

who were in a valid immigrant or

nonimmigrant status, or were given

parole, to apply for asylum within a

reasonable time after termination of

parole or immigration status. The

Department does not wish to force a

premature application for asylum in

cases in which an individual believes

circumstances in his country may

improve, thus permitting him to return

to his country. For example, an

individual admitted as a student who

expects that the political situation in her

country may soon change for the better

as a result of recent elections may wish

to refrain from applying for asylum until

absolutely necessary. The Department

would expect a person in that situation

to apply for asylum, should conditions

not improve, within a very short period

of time after the expiration of her status.

Failure to apply within a reasonable

time after expiration of the status would

foreclose the person from meeting the

statutory filing requirements. Generally,

the Department expects an asylumseeker to apply as soon as possible after

expiration of his or her valid status, and

failure to do so will result in rejection

76124 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

of the asylum application. Clearly,

waiting six months or longer after

expiration or termination of status

would not be considered reasonable.

Shorter periods of time would be

considered on a case-by-case basis, with

the decision-maker taking into account

the totality of the circumstances.

Others recommended including

situations involving the death or serious

illness or incapacity of the applicant’s

legal representative or of a member of

the applicant’s immediate family. The

Department agrees that there may be

situations in which the serious illness of

an applicant’s representative or family

member could relate to an applicant’s

delay in applying for asylum. Therefore,

that suggestion has been adopted. As

with all exceptions to the 1-year filing

requirement based on extraordinary

circumstances, the applicant would

have to demonstrate that the illness of

the representative or family related to

the delay in filing and that the applicant

applied for asylum within a reasonable

amount of time after the illness.

Some commenters suggested

broadening the two illustrative lists. The

lists have been expanded to include

some, but not all, of the suggestions.

The Department’s decision to include

only some of the circumstances

suggested in the comments does not

mean that the Department has

determined that those that were not

included could never excuse tardiness.

The fact that an applicant’s

circumstances are described in the list

of possible changed or extraordinary

circumstances does not in itself

mandate that a tardy filing be excused;

nor does the lack of such a description

mean that the circumstances cannot be

raised during an interview or hearing

and result in excuse of the untimely

filing. The lists merely provide

examples of circumstances that might

result in a tardiness being excused. In

order for a tardy filing to be excused, an

applicant must first credibly show the

existence or occurrence of the

circumstances (regardless of whether

those circumstances are specifically

listed in the regulations), and then show

(1) for changed circumstances, that

those changes materially affect the

alien’s eligibility for asylum, or (2) for

extraordinary circumstances, that those

circumstances directly relate to the

alien’s failure to file the application

within the 1-year deadline. Without the

direct connection, the alien is statutorily

ineligible to apply for asylum.

The Department notes that the

existing provision in this section

relating to ‘‘ineffective assistance of

counsel’’ raises questions that have

arisen under the Act more generally

concerning whether, and if so when,

errors by counsel may furnish a ground

for an alien to obtain relief, such as

setting aside a final order or excusing a

failure to comply with a statutory

deadline. For example, in a case that is

currently pending before the Board of

Immigration Appeals, the Service is

arguing that because there is no

constitutional right to governmentfurnished counsel in immigration

proceedings, there is, under Coleman v.

Thompson, 501 U.S. 722 (1991), no

constitutional basis for relief based on a

claim of ineffective assistance of

counsel. Similar issues concerning

errors of counsel have been raised in

court in other contexts under the Act.

The Department accordingly is reexamining the ineffective-assistance-ofcounsel provision in the asylum

regulations as part of a broader

assessment of the role that counsel error

may play in requests for relief in

immigration proceedings. However,

because those issues have not yet been

raised in the context of the current

rulemaking proceedings, this provision

is being carried forward unchanged at

the present time. The Department will

address those issues separately in the

future.

Certain commenters appeared to be

confused about the amount of additional

time an applicant should receive in

order to file an application when it has

been determined that a changed or

extraordinary circumstance is present in

a particular case. While most

understood that the finding of changed

or extraordinary circumstances justifies

the tardiness being excused to the extent

necessary to allow the alien a reasonable

amount of time to submit the

application, some believed that the alien

would automatically receive one year

from the date of the circumstance

involved to file a timely application.

Although there may be some rare cases

in which a delay of one year or more

may be justified because of particular

circumstances, in most cases such a

delay would not be justified. Allowing

an automatic one year extension from

the date a changed or extraordinary

circumstance occurred would clearly

exceed the statutory intent that the

delay be related to the circumstance.

Accordingly, that approach has not been

adopted.

Section 208.4(b)(2) has been clarified

to reflect that the director of the local

asylum office, in addition to the director

of the asylum program, can authorize

the filing of an application directly with

a local asylum office instead of with a

Service Center. A provision was also

added to this section that allows an

application to be filed directly with an

asylum office in a case in which an

individual who was previously

included in a principal applicant’s

asylum application as a dependent has

lost derivative status and wants to file

as a principal applicant.

The title of § 208.4(b)(3) has been

changed from ‘‘With the immigration

judge’’ to ‘‘With the Immigration Court,’’

and in § 208.4(b)(3)(i), the phrase

‘‘jurisdiction over the port, district

office, or sector after service and filing

of the appropriate charging document’’

has been changed to ‘‘jurisdiction over

the underlying proceeding.’’ The form

number of the Notice of Referral to

Immigration Judge (I–863) has also been

added to § 208.4(b)(3)(iii).

Finally, the second sentence of

§ 208.4(b)(5) has been amended to

reflect that submission of an asylum

application to the district director does

not automatically trigger the issuance of

a Form I–863, Notice of Referral to an

Immigration Judge.

§ 208.5—Special Duties Towards Aliens

in Custody of the Service

Language was added to reflect that

paragraph (a), which relates to aliens in

the custody of the Service who request

asylum or withholding of removal, or

who express a fear of persecution or

harm, does not pertain to an alien in

custody pending a reasonable fear

determination pursuant to § 208.31, just

as it does not pertain to an alien

pending a credible fear determination.

However, a sentence was added to

reflect that, even though the Service is

not required to provide application

forms to aliens pending a credible fear

or reasonable fear determination, the

Service may provide the forms upon

request. The word ‘‘persecution’’ was

deleted after the terms ‘‘credible fear’’

and ‘‘reasonable fear’’ to reflect that a

credible fear or reasonable fear

determination involves an evaluation of

both fear of persecution and fear of

torture. Finally, § 208.5(b)(1)(ii) has

been amended to allow a district

director to extend the 10-day filing

period for crewmen when good cause

exists.

§ 208.6—Disclosure to Third Parties

One commenter suggested the

restoration of the second sentence in

§ 208.6(a), which had been removed as

superfluous, relating to the deletion of

identifying details from copies of

asylum cases in public reading rooms.

The Department believes § 208.6

protects the confidentiality of asylum

applicants in public reading rooms and,

therefore, has decided not to restore the

removed language to this section. The

Department has added language to

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76125

§ 208.6 regarding the disclosure to third

parties of information and records

relating to credible fear interviews and

determinations, as well as reasonable

fear interviews and determinations, to

protect claimants’ confidentiality in

those proceedings.

The Department is considering further

amendments to the confidentiality

provisions and will publish a proposed

rule if it decides further change is

necessary.

§ 208.7—Employment Authorization

One commenter suggested a

clarification that an asylum office

referral of an asylum application to an

immigration judge does not stop the

150-day employment authorization

clock. This suggestion has not been

adopted because it is not entirely

accurate. Although the 150-day clock

continues to run even if an asylum

application is referred to the

Immigration Court, an applicant may

cause a delay that could stop the clock,

including failing to appear at a hearing

before the Immigration Court, or failing

to follow fingerprinting requirements.

Accordingly, this section has not been

changed.

§ 208.9—Procedure for Interview Before

an Asylum Officer

This section has not been

substantively changed, although several

comments were received. The reference

to § 208.14(b) in paragraph (d) of this

section was amended to refer to

§ 208.14(c) for consistency with

revisions to § 208.14.

One commenter suggested that the

regulations should contain protections

to ensure the non-adversarial nature of

the asylum interview and further

commented that, because § 208.9(b)

states that interviews will be conducted

separate and apart from the public

except at the request of the applicant,

the asylum applicant, not the asylum

officer, has the right to determine the

number of individuals who may be

present during an asylum interview.

The Department believes that the

regulations contain sufficient guidelines

regarding the nonadversarial nature of

the interview and has not amended

them. The asylum officer needs to retain

control over the flow and parameters of

the interview, and the Department

believes it is appropriate for asylum

officers, taking into account the

applicant’s right to bring a

representative and to present witnesses,

and his or her need for an interpreter,

to determine the number of individuals

who may be present at the interview.

Individual problems that may arise are

more appropriately addressed by raising

them with local asylum office directors

than through regulatory changes.

The same commenter suggested that

the asylum interview should be taped

for accurate preservation of the record.

While the Department has carefully

considered that comment, and the

Service does not rule out adopting a

policy to tape record interviews in the

future, at the present time the

Department will not adopt that

suggestion. In order to benefit the

process, the taping would have to be

transcribed for inclusion in the record.

That would increase the cost, time, and

personnel resources required to

adjudicate an asylum application in a

system that was designed to have an

initial nonadversarial hearing with an

asylum officer, followed, if the case is

referred, by a de novo, more formal

adversarial hearing, which is recorded,

before an immigration judge. The

Service believes that, in light of current

circumstances, the administrative cost

and burden of tape recording asylum

interviews outweigh any expected

benefit from the recording of interviews.

As previously stated, however, the

Service does not rule the option out for

the future.

The same commenter also suggested

that the Department should secure

interpreters for asylum applicants who

are interviewed at an asylum office. If

the Department is unwilling to do so,

the commenter continued, the

Department should not penalize an

applicant with an unexcused absence

for failing to bring a qualified

interpreter. The interim regulation

provided an applicant a greater

opportunity to find a qualified

interpreter by permitting an applicant to

provide an interpreter who is fluent in

English and the applicant’s native

language, or any other language in

which the applicant is fluent. The

Service recognizes that Serviceappointed interpreters could benefit

applicants and the program. At this

time, all federal agencies, including the

Service, are reviewing issues relating to

language interpreters in light of the

recent Presidential Executive Order

13116, which directs federal agencies to

establish written policies by December

11, 2000, on the language-accessibility

of their programs and the programs of

those who receive federal funds. The

issue of interpreters raised by the

commenter will therefore be addressed

in compliance with Executive Order

13116.

The commenter’s final suggestion was

to incorporate into this part of the

regulations guidelines for paroling

detained asylum-seekers. The parole of

aliens into the United States is within

the purview of a district director and

covered under § 212.5. The Department

believes that § 212.5 contains sufficient

guidelines to the Service for

determining which aliens may be

paroled, and has not included any

guidelines for paroling aliens into this

part.

Another commenter suggested that an

applicant should be able to authorize

counsel or a representative to pick-up a

decision, without interruption of the

150-day clock. Section 239(a)(1) of the

Act, however, specifically states that a

Notice to Appear shall be given in

person to the alien. The Act does not

allow for a counsel or representative to

accept service of a Notice to Appear

unless the decision is mailed.

The same commenter suggested that

§ 208.9(d) should allow an attorney the

opportunity to respond orally to any

questions or evidence presented at the

interview rather than allowing an

asylum officer to require a

representative to submit comments in

writing. The current provisions in this

section do allow for an attorney or

representative to make an oral

statement, and they also allow an

asylum officer the discretion to have a

representative submit comments in

writing rather than orally, depending

upon the particular facts in the case.

Consistent with the current regulations,

it is the general practice of asylum

officers to allow an attorney the

opportunity for oral responses and to

ask questions at the end of the

interview, subject to appropriate

limitations. Therefore, the Department

does not believe it necessary to make

the suggested changes.

§ 208.10—Failure To Appear at an

Interview

The Department received comments

from one commenter on this section.

The comments included a request for

guidance on how an applicant can prove

that the Service did not mail notice of

interview to his or her address, and

what constitutes ‘‘exceptional

circumstances.’’ With regard to the

latter, the commenter recommended

that the term ‘‘exceptional

circumstances,’’ which the commenter

viewed as too harsh, be replaced with

‘‘good cause.’’

The Department declines to provide

guidance on how to prove a notice of

interview was not properly provided,

and to further define ‘‘exceptional

circumstances’’ beyond the definition

provided in section 240(e)(1) of the Act.

Determining whether a notice was

properly provided and what constitutes

‘‘exceptional circumstances’’ must be

reviewed on a case-by-case basis. That

76126 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

approach allows an asylum office

director the discretion to determine the

type of evidence necessary to show that

notice of interview was not properly

given in a particular individual’s case,

and the types of circumstances that may

be considered ‘‘exceptional.’’ In

accordance with section 208(d)(5)(A)(v)

of the Act, the Service must excuse the

applicant’s failure to appear for an

interview for exceptional circumstances,

but may excuse an applicant’s failure to

appear for good cause where

appropriate. As a practical matter, the

Service generally will exercise

discretion to excuse a first-time failure

to appear if (1) good cause has been

shown, (2) proceedings before the

Immigration Court have not been

initiated, and (3) the excuse is received

within a reasonable amount of time after

the interview date. In the near future,

the Service intends to issue a proposed

rule clarifying the consequences of

failure to appear, which will give the

public further opportunity to comment

on those issues.

§ 208.12—Reliance on Information

Compiled by Other Sources

In response to one comment,

paragraph (b) of this section was revised

to clarify that a prohibition on discovery

of information does not include requests

for information made under the

Freedom of Information Act (FOIA).

§ 208.13—Establishing Asylum

Eligibility

Some commenters suggested that the

former §§ 208.13(b)(2)(ii) and

208.16(b)(4) (giving due consideration to

evidence that the government

persecutes its nationals for

unauthorized departure or seeking

asylum) be reinstated in the regulations.

This matter was thoroughly reviewed in

the preamble to the interim rule at 62

FR 10312 in response to the earlier

comments to the proposed rule at 62 FR

444. The comments to the interim rule

raised no significant issues that were

not previously addressed, and no

changes have been made in that regard.

A new § 208.13(c)(2)(F) was added for

consistency with the provisions of the

Anti-terrorist and Effective Death

Penalty Act of 1996 (AEDPA). For

applications for asylum filed prior to

April 1, 1997, an applicant who falls

within subclauses (I), (II), or (III) of

section 212(a)(3)(B)(i) of the Act

(relating to terrorist activity) is ineligible

for a grant of asylum unless it is

determined that there are no reasonable

grounds to believe that the individual is

a danger to the security of the United

States.

Some commenters argued that

language about discretionary denials of

asylum in § 208.13(d) was inconsistent

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

which provides for rejection of an

asylum application when an alien may

be removed pursuant to a bilateral or

multilateral agreement to a safe third

country. In drafting the interim rule, the

Department had based its decision to

include this regulatory provision on

section 208(d)(5)(B) of the Act (which

gives the Attorney General the authority

to ‘‘provide by regulation for any other

conditions or limitations on the

consideration of an application for

asylum not inconsistent with this Act’’)

and section 208(b)(2)(C) of the Act

(which gives the Attorney General

authority to establish limitations and

conditions under which an alien may be

found ineligible for asylum), not on

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

the Department still finds that the

regulatory provision would be fully in

keeping with the Act, it has decided to

remove it from the regulations to avoid

confusion.

The Department notes that it has not

issued a notice in the Federal Register

announcing that the United States has

entered into a bilateral or multilateral

agreement permitting removal to a safe

third country pursuant to section

208(a)(2)(A) of the Act. The Department

indicated in the final rule at 59 FR

62284 its intent to notify the public in

advance through a Federal Register

publication should the United States

enter into any such agreements.

Past Persecution Rule

This final rule also incorporates

changes to this section and § 208.16

(withholding of removal) that were the

subject of a proposed rule that was

published in the Federal Register on

June 11, 1998, at 63 FR 31945. In that

rule, changes were proposed for

adjudicating cases in which an

applicant has established past

persecution or in which an applicant

may be able to avoid persecution in his

or her home country by relocating to

another area of that country.

There were 35 comments submitted in

response to the publication of the June

11, 1998, proposed rule. Twenty-six of

the commenters argued that the

proposal should be withdrawn and the

effort to amend the regulation

abandoned because the proposed

changes violate the Act under which the

Attorney General is given authority over

the adjudication of applications for

asylum and withholding of removal,

and are inconsistent with precedent

court decisions and international law.

The other commenters were also

opposed to virtually all the changes

included in the proposed rule, but did

not specifically request that the

proposed rule be abandoned outright.

First, the Department does not agree

with the argument that those regulatory

changes are ultra vires, or beyond the

authority granted to the Attorney

General under the Act. Under section

208 of the Act, when an individual has

established that he or she is a ‘‘refugee,’’

as defined in section 101(a)(42)(A) of

the Act, the Attorney General is granted

the discretion to determine which

‘‘refugees’’ will be granted asylum in the

United States. Prior to enactment of

IIRIRA, this broad delegation of power

to the Attorney General over the

adjudication of asylum applications

withstood challenges to the Attorney

General’s authority to implement rules

that denied asylum to persons who

otherwise met the ‘‘refugee’’ definition

for reasons other than those listed in the

Act. Komarenko v. INS, 35 F.3d 432,

435–36 (9th Cir. 1994) (rejected

challenge to the Attorney General’s

authority to issue a regulatory provision

that denied asylum to refugees who

were convicted of particularly serious

crimes); Yang v. INS, 79 F.3d 932 (9th

Cir.), cert. denied, 519 U.S. 824 (1996)

(rejected challenge to the Attorney

General’s authority to deny asylum to

refugees who were found to have been

firmly resettled). Although the

commenters correctly point out that

section 208 of the Act was amended by

IIRIRA to make several categories of

individuals ineligible for asylum who

had previously been barred only by

regulation, section 208(b)(2)(C) of the

Act specifically continues to give the

Attorney General authority ‘‘by

regulation (to) establish additional

limitations and conditions * * * under

which an alien shall be ineligible for

asylum.’’

The Department has concluded that

revisions to the regulatory language

providing guidelines on the exercise of

discretion in determining an applicant’s

eligibility for asylum, once he or she has

been found to meet the definition of

refugee based on past persecution, are

justified and in line with the

administrative and judicial precedents

outlined in the Supplementary

Information section to the proposed rule

at 63 FR 31945. That includes, inter alia,

consideration of the ability of an

applicant who has been subjected to

past persecution to relocate safely in his

or her home country, a factor that has

been recognized as appropriate for the

Attorney General to consider in the

exercise of her discretion to grant or

deny asylum. Harpinder Singh v.

Ilchert, 63 F.3d 1501, 1511 (9th Cir.

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76127

1995); Surinder Singh v. Ilchert, 69 F.3d

375, 379 (9th Cir. 1995). In addition, the

Department has concluded that

requiring consideration of the

applicant’s ability to relocate safely in

his or her home country in determining

whether the applicant has a wellfounded fear of persecution is in line

with the previous administrative and

judicial decisions, such as Matter of

Acosta, 19 I. & N. Dec. 211, 235 (BIA

1985), modified on other grounds,

Matter of Mogharrabi, 19 I & N Dec. 439

(BIA 1987); Etugh v. INS, 921 F.2d 36,

39 (3rd Cir. 1990); Quintanilla-Ticas v.

INS, 783 F.2d 955, 957 (9th Cir. 1986),

outlined in the Supplementary

Information section to the proposed

rule.

The Department does agree, however,

that some changes to the proposed

language are appropriate in order to

ensure that those provisions are applied

in a manner that complies with our

international obligations under the 1951

Convention relating to the Status of

Refugees (‘‘1951 Convention’’), as

modified by the 1967 Protocol relating

to the Status of Refugees. In determining

how to revise these provisions, the

Department referred to the relevant

provisions of the United Nations High

Commissioner for Refugee’s Handbook

on Procedures and Criteria for

Determining Refugee Status (‘‘UNHCR

Handbook’’). Although the Department

is not bound by the UNHCR Handbook,

the handbook can serve as a ‘‘useful

interpretative aid,’’ INS v. AguirreAguirre, 526 U.S. 415, 427 (1999), and

‘‘provides significant guidance in

construing the Protocol, to which

Congress sought to conform’’ with the

passage of the Refugee Act of 1980. INS

v. Cardoza-Fonseca, 480 U.S. 421, 439

n.22 (1987). In §§ 208.13(b)(1)(i)(A) and

208.16(b)(1)(i)(A), the regulatory

language for overcoming the

presumption of a well-founded fear of

persecution and a threat to the

applicant’s life or freedom because of

past persecution is changed to state that

the Service must show a ‘‘fundamental

change in circumstances’’ in order to

overcome the presumption. That phrase

is consistent with Article 1 C(5) of the

1951 Convention, reflects the relevant

language regarding the fundamental

nature of the change at paragraph 135 of

the UNHCR Handbook, and is also the

exact language provided in section

208(c)(2)(A) of the Act concerning the

termination of a refugee’s grant of

asylum in the United States. By

adopting that language rather than that

requiring a showing of changed country

conditions to overcome the

presumption, other changes in the

circumstances surrounding the asylum

claim, including a fundamental change

in personal circumstances, may be

considered, so long as those changes are

fundamental in nature and go to the

basis of the fear of persecution.

The amended language in

§§ 208.13(b)(1) and 208.16(b)(1)(i) is not

intended to alter the holding in the

Board decision Matter of N–M–A, Int.

Dec. 3368 (BIA 1998), that the

presumption raised by a finding of past

persecution applies only to a fear of

future persecution based on the original

persecution, and not to a fear of

persecution from a new source

unrelated to the past persecution. In

Matter of N–M–A, the Board explained,

‘‘once an applicant has demonstrated

that he has suffered past persecution on

account of a statutorily-protected

ground, and the record reflects that

country conditions have changed to

such an extent that the applicant no

longer has a well-founded fear of

persecution from his original

persecutors, the applicant bears the

burden of demonstrating that he has a

well-founded fear of persecution from

any new source.’’ While the

amendments to §§ 208.13(b)(1) and

208.16(b)(1)(i) change the regulations to

the extent that the presumption may be

overcome by events other than a change

in country conditions, the regulations

retain and specify the requirement that

the presumption relates only to fear of

harm based on facts that give rise to the

original persecution.

In the sections of the regulations

dealing with the issue of internal

relocation, §§ 208.13(b)(1)(i)(B) and

(b)(2)(ii), and 208.16(b)(1)(i)(B) and

(b)(2), the provisions have been revised

to require a showing by the Service that

‘‘under all the circumstances, it would

be reasonable to expect the applicant to

(relocate).’’ That language is nearly

identical to the language used in the

relevant section of the UNHCR

Handbook, paragraph 91. The

reasonableness standard with regards to

relocation is consistent with the general

standard for adjudicating well-founded

fear claims.

With regard to other sections of the

proposed rule at 63 FR 31945, some

commenters recommended that the

language regarding the burden of proof

to overcome the presumption that arises

after a finding of past persecution

should be revised to indicate clearly

that the Service bears the burden to

overcome those presumptions, by a

preponderance of the evidence, even in

the context of asylum adjudications by

an asylum officer. The Department

agrees, and changes have been made

accordingly.

The Department declines to adopt the

recommendation of many commenters

to allow adjudicators to consider

additional humanitarian factors,

unrelated to the severity of the past

persecution or other serious harm, in

exercising their discretion to grant

asylum to a refugee who no longer has

a well-founded fear of persecution. In

allowing an applicant to be granted

asylum based on past persecution alone

when it is determined that the applicant

has established either (1) compelling

reasons because of the severity of the

past harm, or (2) a reasonable possibility

that he or she may suffer serious harm

upon removal to his or her home

country, the Department is already

providing avenues for relief that are

consistent with the protection function

of the 1951 Convention, and that go

beyond the provisions of the UNHCR

Handbook. See paragraph 136 of the

UNHCR Handbook. As explained in the

Supplementary Information to the

proposed rule published in the Federal

Register on June 11, 1998, at 63 FR

31945, 31947, by ‘‘other serious harm,’’

the Department means harm that is not

inflicted on account of race, religion,

nationality, membership in a particular

social group, or political opinion, but is

so serious that it equals the severity of

persecution. Mere economic

disadvantage or the inability to practice

one’s chosen profession would not

qualify as ‘‘other serious harm.’’

In summary, the changes in the

regulation are consistent with the Act,

relevant case law, international

instruments, and guidance in the

UNHCR Handbook. The regulations

leave intact the important principle that

an applicant who has established past

persecution on account of one of the

five grounds is a refugee. It also

continues to provide that a person who

has established past persecution on

account of race, religion, nationality,

membership in a particular social group,

or political opinion shall be presumed

to have a well-founded fear of future

persecution on account of those same

grounds, and shall also be presumed to

have established a threat to his or her

life or freedom under the standard for

eligibility for withholding of removal.

The regulations also make it clear that

the Service has the burden of

overcoming such presumptions by a

preponderance of the evidence.

Finally, the Department has renamed

paragraph (b) of § 208.13, currently

‘‘persecution,’’ to ‘‘eligibility,’’ to reflect

the incorporation of the new paragraph

(b)(3), regarding reasonableness of

internal relocation, as well as the other

eligibility requirements contained in

paragraphs (b)(1) and (b)(2).

76128 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

§ 208.14—Approval, Denial, Referral, or

Dismissal of Application

This section has been substantially

revised and reorganized to clarify the

circumstances under which an asylum

officer may grant, deny, or refer an

asylum application. Because an asylum

officer’s authority to grant asylum to an

applicant within the Asylum Office’s

jurisdiction is unrelated to an

applicant’s status, discussion of

authority to grant asylum has been

consolidated in § 208.14(b). The

statutory requirement that identity

checks be completed before asylum can

be granted by an asylum officer has been

added to paragraph (b).

Discussion of an asylum officer’s

authority to deny, dismiss, or refer an

application has been placed in a new

§ 208.14(c), with a breakdown of how an

application will be processed based on

the applicant’s status. In § 208.14(c)(1),

language was added to clarify that

applicants who are inadmissible or

deportable will either be referred to the

Immigration Court, or have their asylum

applications dismissed. Section

208.14(c)(2) now clarifies that the

classes of aliens to whom an asylum

officer may grant or deny asylum status

include aliens in valid Temporary

Protected Status and immigrant status.

New §§ 208.14(c)(3) and 208.14(c)(4)

were added, and detail how the Service

processes asylum applications of aliens

who were paroled into the United

States, depending upon the decision an

asylum officer makes on the application

and the validity of the parole.

§ 208.15—Definition of ‘‘firm

resettlement’’

All of the references to ‘‘he’’ have

been changed to ‘‘he or she,’’ and the

references to ‘‘nation’’ have been

changed to ‘‘country.’’

§ 208.16—Withholding of Removal

Under Section 241(b)(3)(B) of the Act

and Withholding of Removal Under the

Convention Against Torture

This section was substantially revised

with the publication of February 19,

1999, interim regulations on Article 3 of

the Convention Against Torture and

Other Cruel, Inhuman, or Degrading

Treatment or Punishment (Convention

Against Torture) in the Federal Register,

at 64 FR 8478, with a request for

comments. Any comments regarding

that interim rule will be addressed in

the final rule implementing the

Convention Against Torture. Some of

the comments on the March 6, 1997,

interim rule addressed concerns about

how the Department would implement

Article 3 of the Convention Against

Torture. Because many of the

commenters’ concerns were addressed

with the February 19, 1999, interim

rule, they will not be addressed in this

supplementary information.

Language in paragraph (b) relating to

eligibility for withholding of removal is

being amended to reflect similar

amendments to § 208.13 on adjudicating

claims where past persecution has been

established. See the discussion in this

preamble regarding changes in § 208.13.

§ 208.19—Decisions

With the publication of the interim

rule at 64 FR 8478 to implement Article

3 of the Convention Against Torture,

§ 208.17 was revised, §§ 208.18 through

208.22 were redesignated as §§ 208.19

through 208.23, and a new § 208.18 was

added. However, due to Department

error, § 208.17 was not redesignated and

was, therefore, dropped from 8 CFR part

208. This final rule reinstates the former

§ 208.17 relating to decisions on

applications for asylum and for

withholding of removal as the new

§ 208.19, and redesignates §§ 208.19

through 208.23 as §§ 208.20 through

208.24.

Language in § 208.17 that appeared

before it was dropped from 8 CFR part

208 has been slightly amended. In

response to one comment, language has

been added to indicate that a letter

communicating denial or referral of the

application shall state the basis for the

denial or referral.

§ 208.20—Determining if an Asylum

Application is Frivolous

Section 208.19 has been redesignated

as § 208.20, with no substantive

changes. One commenter stated that the

regulatory definition of ‘‘frivolous’’ does

not contain appropriate safeguards, and

that the Service should advise every

asylum applicant of the consequences of

filing frivolous claims. The current

regulation provides appropriate

safeguards by stipulating that an

immigration judge or the Board must be

satisfied that an applicant had sufficient

opportunity to account for any

discrepancies before finding that an

applicant filed a frivolous application,

and by permitting an applicant to seek

withholding or removal even if he or

she is found to have filed a frivolous

application. The regulation itself also

advises an applicant that he or she is

subject to the provisions of section

208(d)(6) of the Act if a final order

specifically finds that the alien

knowingly filed a frivolous application.

Finally, both the instructions to the

Form I–589 and the application itself

warn the applicant about the

consequences of filing a frivolous claim,

as required by section 208(d)(4) of the

Act.

The Department believes that the

current regulation provides for

appropriate safeguards for filing a

frivolous asylum application, and that,

for the reasons set forth in the

supplemental information to the January

3, 1997 proposed rule, the definition of

frivolous is sufficient. The Department,

therefore, has not changed any language

in this section.

A commenter also suggested that an

applicant should not be punished for

voluntarily withdrawing an asylum

application, and that the Department

should advise adjudicators that, before

finding that an individual filed a

frivolous application, they should

consider the fact that an applicant may

not have been able to afford to retain

counsel for advice on the legal strength

of an asylum claim. The current

regulation does not contain any

provisions that punish an applicant for

withdrawing an asylum application.

Any applicant may choose to withdraw

an application at any time prior to a

final decision; however, a withdrawal

does not preclude the Service from

seeking removal of the alien if he or she

is deportable or removable. The fact that

an applicant may not have hired legal

counsel may be one factor, among

others, that an immigration judge or the

Board may consider when determining

whether an applicant had sufficient

opportunity to account for any

discrepancies or implausible aspects of

the claim.

§ 208.21—Admission of Asylee’s Spouse

and Children

Section 208.20 has been redesignated

as § 208.21 and restructured to provide

greater clarity. Additionally, this section

has been amended to correct an error in

the interim rule published in the

Federal Register at 62 FR 10312,

effective April 1, 1997, which omitted

the bar to asylum eligibility based on

the commission of a serious nonpolitical crime outside the United

States, for applicants who applied on or

after April 1, 1997. The omission was

inadvertent, since such ground had been

specifically included under IIRIRA for

asylees. That error has been corrected

and the provision redrafted to specify

the applicable bar for derivative

applications filed prior to April 1, 1997,

and those filed on or after April 1, 1997.

The Service finds that good cause exists

for adopting the provision in this final

rule without the prior notice and

comment period ordinarily required by

5 U.S.C. 553(b) because the provision

merely codifies in the Service’s

regulation the statutory mandates of

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76129

section 604 of IIRIRA. In addition, after

reviewing the Department’s

implementation of the statutory

mandate, it is clear that the omission

was an inadvertent error. Therefore, the

notice and comment period normally

required under 5 U.S.C. 553(b) is

impracticable and unnecessary prior to

adopting this provision.

§ 208.22—Effect on Exclusion,

Deportation, or Removal Proceedings

Section 208.21 has been redesignated

as § 208.22, and paragraph (b), which

addresses the initiation of removal

proceedings upon termination of an

asylum grant, has been moved to

§ 208.24.

§ 208.24—Termination of Asylum and

Withholding of Removal

Section 208.23 has been redesignated

as § 208.24. Some comments on § 208.24

suggested that the provision be removed

or narrowed, and that more procedural

protections be provided before

termination. The Department finds that

the existing procedural protections,

which provide for prior notice of

grounds for termination and an

opportunity to respond, are sufficient.

No changes have been made in the

regulations governing termination

procedures.

However, § 208.24(b)(1) was revised

for consistency with the revisions in

this final rule to § 208.16 and for

consistency with the provisions for

termination of asylum. The provision

that ‘‘[t]he alien is no longer entitled to

withholding of deportation or removal

due to a change of conditions in the

country to which removal was

withheld’’ has been replaced with, ‘‘The

alien is no longer entitled to

withholding of deportation or removal

because, owing to a fundamental change

in circumstances relating to the original

claim, the alien’s life or freedom no

longer would be threatened on account

of race, religion, nationality,

membership in a particular social group,

or political opinion in the country from

which deportation or removal was

withheld.’’

In addition, the former § 208.21(b),

concerning the initiation of removal

proceedings, is now paragraph (e) of this

section. The Department deleted the

phrase ‘‘under section 235 or 240 of the

Act’’ from the former § 280.21(b)

because an alien may be subject to

removal under other sections of the Act,

such as section 238, which concerns

administrative removal of aggravated

felons, or section 241(a)(5), which

requires reinstatement of prior orders

under certain circumstances.

§ 208.30—Credible Fear Determinations

The format of this section has been

revised for the purpose of clarity. Also,

a new paragraph (b) has been added at

§ 208.30; that paragraph provides that

an accompanying dependent (spouse or

child) may be included in the

application of the principal alien, if the

spouse or child so chooses.

Some commenters objected to the use

of telephonic interpreters in credible

fear interviews. Telephonic

interpretation has given asylum officers

flexibility in scheduling and conducting

credible fear interviews, and has proven

to be a reliable source of interpretation

services. First, because the number of

languages available through telephonic

interpretation is quite large, applicants

can be interviewed in the language or

dialect with which they are most

comfortable. Relying on physically

present interpreters would limit the

number of languages that are available

and, although an alien may be able to

speak a particular language or dialect, it

may not be the language or dialect with

which the alien is most comfortable

speaking and understanding. Second, if

an applicant requests an interpreter of a

gender other than that of the individual

initially assigned to perform telephonic

interpretation services, a replacement

interpreter can be easily identified and

enlisted when using a telephonic

interpreter, so the interview does not

need rescheduling. The use of

physically present interpreters usually

limits the ability to secure such quick

personnel replacements. Finally, an

asylum officer can always locate an

interpreter for a particular language on

short notice regardless of whether the

interview is conducted at a detention

facility or at a remote location, such as

a border port-of-entry. In many

instances, live interpreters cannot

appear for an interview on short notice

or are not willing to travel to a remote

location for an interview. The current

provision for using telephonic

interpreters, which has been in place for

approximately 3 years, has worked well.

However, as mentioned earlier,

practices relating to language

accessibility in federal programs are

under review as part of the

Department’s compliance with

Presidential Executive Order 13116.

Therefore, the use of telephonic

interpretation will be addressed in

compliance with that Executive Order.

Some commenters suggested that the

regulations allow counsel to be present

during the credible fear interview. The

regulations already allow any person

with whom the alien chooses to consult

to be present. For purposes of this

section, the term ‘‘persons’’ is

interpreted to include legal counsel.

Accordingly, the regulation has not been

changed in that regard.

There were also some suggestions that

the asylum officer’s credible fear

interview should also serve as an

Asylum Pre-Screening Officer (APSO)

interview for purposes of determining

whether the alien should be released

from detention. While a positive

credible fear determination may be

considered by a district director when

making a parole decision, it is not

determinative, and other factors must be

taken into account, such as whether the

applicant is likely to appear for a

hearing or may pose a threat to the

community.

Some commenters suggested that the

rules specify that credible fear is a low

screening standard. The Department

finds that language in section

235(b)(1)(B)(v) of the Act is more precise

than the rather vague term ‘‘low.’’ While

the Department does not disagree that it

is a threshold or low standard, defining

it as such would only foster debate

about what ‘‘low’’ means. Accordingly,

the regulation has not been amended in

that regard.

There were also some suggestions

that, when a case raises a novel issue of

law, the individual should be referred

for a full hearing before an immigration

judge. The regulation has been clarified

to provide that, in making a credible

fear determination, the asylum officer or

immigration judge shall take into

consideration whether the case presents

novel or unique issues.

Likewise, there were also suggestions

that such a referral should be made

regardless of any apparent statutory

ineligibility under section 208(a)(2) or

208(b)(2)(A) of the Act. The Department

has adopted that suggestion and has so

amended the regulation.

Several commenters suggested that

the Service should presume a request

for appeal by any alien who expressed

fear to a pre-screening officer and tried

without success to persuade an asylum

officer that the alien has a credible fear

of persecution. It would be contrary to

the intent of the statute to mandate a

review in every case, including those

where the alien clearly and knowingly

decides not to pursue a review.

However, the regulations have been

modified to provide that an alien’s

failure or refusal to indicate whether he

or she desires a review shall be deemed

to be a request for such review.

The Department has also amended

paragraph (b) regarding the interview

procedure by adopting language from

§ 208.9 on eliciting testimony and who

may act as an interpreter.

76130 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

Finally, in § 208.30(g)(2)(iv)(A), the

Department added language that would

permit the Service to reconsider a

negative credible fear determination,

even after such determination has been

affirmed by an immigration judge, as

long as the Service provides the

immigration judge with notice of its

reconsideration.

Regulatory Flexibility Act

The Attorney General, in accordance

with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this

regulation and, by approving it, certifies

that this rule will not have a significant

impact on a substantial number of small

entities. This rule will ensure that

asylum applications are processed in

accordance with the Act, as amended by

IIRIRA, as well as with international

instruments. Moreover, it will have no

effect on small entities, as that term is

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

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1 year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 251 of the Small

Business Regulatory Enforcement

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 United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this rule has been

submitted to the Office of Management

and Budget for review.

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 responsibility

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 summary

impact statement.

Executive Order 12988

This proposed rule meets the

applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive

Order 12988, Civil Justice Reform.

Paperwork Reduction Act

The information collection

requirements contained in this rule have

been approved by the Office of

Management and Budget under the

provisions of the Paperwork Reduction

Act. The OMB control numbers for these

collections are contained in 8 CFR

299.5, Display of control numbers.

List of Subjects in 8 CFR Part 208

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

Accordingly, part 208 of 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 208.2 is revised to read as

follows:

§ 208.2 Jurisdiction

(a) Office of International Affairs.

Except as provided in paragraph (b) or

(c) of this section, the Office of

International Affairs shall have initial

jurisdiction over an asylum application

filed by an alien physically present in

the United States or seeking admission

at a port-of-entry. The Office of

International Affairs shall also have

initial jurisdiction over credible fear

determinations under § 208.30 and

reasonable fear determinations under

§ 208.31.

(b) Jurisdiction of Immigration Court

in general. Immigration judges shall

have exclusive jurisdiction over asylum

applications filed by an alien who has

been served a Form I–221, Order to

Show Cause; Form I–122, Notice to

Applicant for Admission Detained for a

Hearing before an Immigration Judge; or

Form I–862, Notice to Appear, after the

charging document has been filed with

the Immigration Court. Immigration

judges shall also have jurisdiction over

any asylum applications filed prior to

April 1, 1997, by alien crewmembers

who have remained in the United States

longer than authorized, by applicants

for admission under the Visa Waiver

Pilot Program, and by aliens who have

been admitted to the United States

under the Visa Waiver Pilot Program.

Immigration judges shall also have the

authority to review reasonable fear

determinations referred to the

Immigration Court under § 208.31, and

credible fear determinations referred to

the Immigration Court under § 208.30.

(c) Certain aliens not entitled to

proceedings under section 240 of the

Act.

(1) Asylum applications and

withholding of removal applications

only. After Form I–863, Notice of

Referral to Immigration Judge, has been

filed with the Immigration Court, an

immigration judge shall have exclusive

jurisdiction over any asylum application

filed on or after April 1, 1997, by:

(i) An alien crewmember who:

(A) Is an applicant for a landing

permit;

(B) Has been refused permission to

land under section 252 of the Act; or

(C) On or after April 1, 1997, was

granted permission to land under

section 252 of the Act, regardless of

whether the alien has remained in the

United States longer than authorized;

(ii) An alien stowaway who has been

found to have a credible fear of

persecution or torture pursuant to the

procedures set forth in subpart B of this

part;

(iii) An alien who is an applicant for

admission pursuant to the Visa Waiver

Pilot Program under section 217 of the

Act;

(iv) An alien who was admitted to the

United States pursuant to the Visa

Waiver Pilot Program under section 217

of the Act and has remained longer than

authorized or has otherwise violated his

or her immigration status;

(v) An alien who has been ordered

removed under § 235(c) of the Act, as

described in § 235.8(a) of this chapter

(applicable only in the event that the

alien is referred for proceedings under

this paragraph by the Regional Director

pursuant to section 235.8(b)(2)(ii) of this

chapter); or

(vi) An alien who is an applicant for

admission, or has been admitted, as an

alien classified under section

101(a)(15)(S) of the Act (applicable only

in the event that the alien is referred for

proceedings under this paragraph by the

district director).

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76131

(2) Withholding of removal

applications only. After Form I–863,

Notice of Referral to Immigration Judge,

has been filed with the Immigration

Court, an immigration judge shall have

exclusive jurisdiction over any

application for withholding of removal

filed by:

(i) An alien who is the subject of a

reinstated removal order pursuant to

section 241(a)(5) of the Act; or

(ii) An alien who has been issued an

administrative removal order pursuant

to section 238 of the Act as an alien

convicted of committing an aggravated

felony.

(3) Rules of procedure.

(i) General. Except as provided in this

section, proceedings falling under the

jurisdiction of the immigration judge

pursuant to paragraph (c)(1) or (c)(2) of

this section shall be conducted in

accordance with the same rules of

procedure as proceedings conducted

under 8 CFR part 240, subpart A. The

scope of review in proceedings

conducted pursuant to paragraph (c)(1)

of this section shall be limited to a

determination of whether the alien is

eligible for asylum or withholding or

deferral of removal, and whether asylum

shall be granted in the exercise of

discretion. The scope of review in

proceedings conducted pursuant to

paragraph (c)(2) of this section shall be

limited to a determination of whether

the alien is eligible for withholding or

deferral of removal. During such

proceedings, all parties are prohibited

from raising or considering any other

issues, including but not limited to

issues of admissibility, deportability,

eligibility for waivers, and eligibility for

any other form of relief.

(ii) Notice of hearing procedures and

in-absentia decisions. The alien will be

provided with notice of the time and

place of the proceeding. The request for

asylum and withholding of removal

submitted by an alien who fails to

appear for the hearing shall be denied.

The denial of asylum and withholding

of removal for failure to appear may be

reopened only upon a motion filed with

the immigration judge with jurisdiction

over the case. Only one motion to

reopen may be filed, and it must be filed

within 90 days, unless the alien

establishes that he or she did not receive

notice of the hearing date or was in

Federal or State custody on the date

directed to appear. The motion must

include documentary evidence, which

demonstrates that:

(A) The alien did not receive the

notice;

(B) The alien was in Federal or State

custody and the failure to appear was

through no fault of the alien; or

(C) ‘‘Exceptional circumstances,’’ as

defined in section 240(e)(1) of the Act,

caused the failure to appear.

(iii) Relief. The filing of a motion to

reopen shall not stay removal of the

alien unless the immigration judge

issues an order granting a stay pending

disposition of the motion. An alien who

fails to appear for a proceeding under

this section shall not be eligible for

relief under section 240A, 240B, 245,

248, or 249 of the Act for a period of 10

years after the date of the denial, unless

the applicant can show exceptional

circumstances resulted in his or her

failure to appear.

3. Section 208.3 is amended by:

a. Revising paragraph (a);

b. Revising paragraph (c)(4); and

c. Revising paragraph (c)(5), to read as

follows:

§ 208.3 Form of application.

(a) An asylum applicant must file

Form I–589, Application for Asylum

and for Withholding of Removal,

together with any additional supporting

evidence in accordance with the

instructions on the form. The

applicant’s spouse and children shall be

listed on the application and may be

included in the request for asylum if

they are in the United States. One

additional copy of the principal

applicant’s Form I–589 must be

submitted for each dependent included

in the principal’s application.

* * * * *

(c) * * *

(4) Knowing placement of false

information on the application may

subject the person placing that

information on the application to

criminal penalties under title 18 of the

United States Code and to civil or

criminal penalties under section 274C of

the Act; and

(5) Knowingly filing a frivolous

application on or after April 1, 1997, so

long as the applicant has received the

notice required by section 208(d)(4) of

the Act, shall render the applicant

permanently ineligible for any benefits

under the Act pursuant to § 208.20.

4. Section 208.4 is amended by:

a. Revising paragraph (a);

b. Revising paragraph (b)(2);

c. Revising paragraph (b)(3); and

d. Revising paragraph (b)(5), to read as

follows:

§ 208.4 Filing the application.

* * * * *

(a) Prohibitions on filing. Section

208(a)(2) of the Act prohibits certain

aliens from filing for asylum on or after

April 1, 1997, unless the alien can

demonstrate to the satisfaction of the

Attorney General that one of the

exceptions in section 208(a)(2)(D) of the

Act applies. Such prohibition applies

only to asylum applications under

section 208 of the Act and not to

applications for withholding of removal

under § 208.16. If an applicant files an

asylum application and it appears that

one or more of the prohibitions

contained in section 208(a)(2) of the Act

apply, an asylum officer, in an

interview, or an immigration judge, in a

hearing, shall review the application

and give the applicant the opportunity

to present any relevant and useful

information bearing on any prohibitions

on filing to determine if the application

should be rejected. For the purpose of

making determinations under section

208(a)(2) of the Act, the following rules

shall apply:

(1) Authority. Only an asylum officer,

an immigration judge, or the Board of

Immigration Appeals is authorized to

make determinations regarding the

prohibitions contained in section

208(a)(2)(B) or (C) of the Act.

(2) One-year filing deadline.

(i) For purposes of section 208(a)(2)(B)

of the Act, an applicant has the burden

of proving:

(A) By clear and convincing evidence

that the application has been filed

within 1 year of the date of the alien’s

arrival in the United States, or

(B) To the satisfaction of the asylum

officer, the immigration judge, or the

Board that he or she qualifies for an

exception to the 1-year deadline.

(ii) The 1-year period shall be

calculated from the date of the alien’s

last arrival in the United States or April

1, 1997, whichever is later. When the

last day of the period so computed falls

on a Saturday, Sunday, or legal holiday,

the period shall run until the end of the

next day that is not a Saturday, Sunday,

or legal holiday. For the purpose of

making determinations under section

208(a)(2)(B) of the Act only, an

application is considered to have been

filed on the date it is received by the

Service, pursuant to § 103.2(a)(7) of this

chapter. In a case in which the

application has not been received by the

Service within 1 year from the

applicant’s date of entry into the United

States, but the applicant provides clear

and convincing documentary evidence

of mailing the application within the 1-

year period, the mailing date shall be

considered the filing date. For cases

before the Immigration Court in

accordance with § 3.13 of this chapter,

the application is considered to have

been filed on the date it is received by

the Immigration Court. For cases before

the Board of Immigration Appeals, the

application is considered to have been

76132 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

filed on the date it is received by the

Board. In the case of an application that

appears to have been filed more than a

year after the applicant arrived in the

United States, the asylum officer, the

immigration judge, or the Board will

determine whether the applicant

qualifies for an exception to the

deadline.

(3) Prior denial of application. For

purposes of section 208(a)(2)(C) of the

Act, an asylum application has not been

denied unless denied by an immigration

judge or the Board of Immigration

Appeals.

(4) Changed circumstances.

(i) The term ‘‘changed circumstances’’

in section 208(a)(2)(D) of the Act shall

refer to circumstances materially

affecting the applicant’s eligibility for

asylum. They may include, but are not

limited to:

(A) Changes in conditions in the

applicant’s country of nationality or, if

the applicant is stateless, country of last

habitual residence;

(B) Changes in the applicant’s

circumstances that materially affect the

applicant’s eligibility for asylum,

including changes in applicable U.S.

law and activities the applicant becomes

involved in outside the country of

feared persecution that place the

applicant at risk; or

(C) In the case of an alien who had

previously been included as a

dependent in another alien’s pending

asylum application, the loss of the

spousal or parent-child relationship to

the principal applicant through

marriage, divorce, death, or attainment

of age 21.

(ii) The applicant shall file an asylum

application within a reasonable period

given those ‘‘changed circumstances.’’ If

the applicant can establish that he or

she did not become aware of the

changed circumstances until after they

occurred, such delayed awareness shall

be taken into account in determining

what constitutes a ‘‘reasonable period.’’

(5) The term ‘‘extraordinary

circumstances’’ in section 208(a)(2)(D)

of the Act shall refer to events or factors

directly related to the failure to meet the

1-year deadline. Such circumstances

may excuse the failure to file within the

1-year period as long as the alien filed

the application within a reasonable

period given those circumstances. The

burden of proof is on the applicant to

establish to the satisfaction of the

asylum officer, the immigration judge,

or the Board of Immigration Appeals

that the circumstances were not

intentionally created by the alien

through his or her own action or

inaction, that those circumstances were

directly related to the alien’s failure to

file the application within the 1-year

period, and that the delay was

reasonable under the circumstances.

Those circumstances may include but

are not limited to:

(i) Serious illness or mental or

physical disability, including any effects

of persecution or violent harm suffered

in the past, during the 1-year period

after arrival;

(ii) Legal disability (e.g., the applicant

was an unaccompanied minor or

suffered from a mental impairment)

during the 1-year period after arrival;

(iii) Ineffective assistance of counsel,

provided that:

(A) The alien files an affidavit setting

forth in detail the agreement that was

entered into with counsel with respect

to the actions to be taken and what

representations counsel did or did not

make to the respondent in this regard;

(B) The counsel whose integrity or

competence is being impugned has been

informed of the allegations leveled

against him or her and given an

opportunity to respond; and

(C) The alien indicates whether a

complaint has been filed with

appropriate disciplinary authorities

with respect to any violation of

counsel’s ethical or legal

responsibilities, and if not, why not;

(iv) The applicant maintained

Temporary Protected Status, lawful

immigrant or nonimmigrant status, or

was given parole, until a reasonable

period before the filing of the asylum

application;

(v) The applicant filed an asylum

application prior to the expiration of the

1-year deadline, but that application

was rejected by the Service as not

properly filed, was returned to the

applicant for corrections, and was

refiled within a reasonable period

thereafter; and

(vi) The death or serious illness or

incapacity of the applicant’s legal

representative or a member of the

applicant’s immediate family.

(b) * * *

(2) With the asylum office. An asylum

application shall be filed directly with

the asylum office having jurisdiction

over the matter in the case of an alien

who:

(i) Has received the express consent of

the asylum office director or the

Director of Asylum to do so, or

(ii) Previously was included in a

spouse’s or parent’s pending application

but is no longer eligible to be included

as a derivative. In such cases, the

derivative should include a cover letter

referencing the previous application and

explaining that he or she is now

independently filing for asylum.

(3) With the Immigration Court.

Asylum applications shall be filed

directly with the Immigration Court

having jurisdiction over the case in the

following circumstances:

(i) During exclusion, deportation, or

removal proceedings, with the

Immigration Court having jurisdiction

over the underlying proceeding.

(ii) After completion of exclusion,

deportation, or removal proceedings,

and in conjunction with a motion to

reopen pursuant to 8 CFR part 3 where

applicable, with the Immigration Court

having jurisdiction over the prior

proceeding. Any such motion must

reasonably explain the failure to request

asylum prior to the completion of the

proceedings.

(iii) In asylum proceedings pursuant

to § 208.2(c)(1) and after the Form I–863,

Notice of Referral to Immigration Judge,

has been served on the alien and filed

with the Immigration Court having

jurisdiction over the case.

(4) * * *

(5) With the district director. In the

case of any alien described in

§ 208.2(c)(1) and prior to the service on

the alien of Form I–863, any asylum

application shall be submitted to the

district director having jurisdiction

pursuant to 8 CFR part 103. If the

district director elects to issue the Form

I–863, the district director shall forward

such asylum application to the

appropriate Immigration Court with the

Form I–863 being filed with that

Immigration Court.

* * * * *

5. Section 208.5 is amended by:

a. Revising the first sentence in

paragraph (a);

b. Adding a new second sentence in

paragraph (a); and

c. Revising paragraph (b)(1)(ii), to read

as follows:

§ 208.5 Special duties toward aliens in

custody of the Service.

(a) General. When an alien in the

custody of the Service requests asylum

or withholding of removal, or expresses

a fear of persecution or harm upon

return to his or her country of origin or

to agents thereof, the Service shall make

available the appropriate application

forms and shall provide the applicant

with the information required by section

208(d)(4) of the Act, except in the case

of an alien who is in custody pending

a credible fear determination under

§ 208.30 or a reasonable fear

determination pursuant to § 208.31.

Although the Service does not have a

duty in the case of an alien who is in

custody pending a credible fear or

reasonable fear determination under

either § 208.30 or § 208.31, the Service

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76133

may provide the appropriate forms,

upon request. * * *

(b) * * *

(1) * * *

(ii) An alien crewmember shall be

provided the appropriate application

forms and information required by

section 208(d)(4) of the Act and may

then have 10 days within which to

submit an asylum application to the

district director having jurisdiction over

the port-of-entry. The district director

may extend the 10-day filing period for

good cause. Once the application has

been filed, the district director, pursuant

to § 208.4(b), shall serve Form I–863 on

the alien and immediately forward any

such application to the appropriate

Immigration Court with a copy of the

Form I–863 being filed with that court.

* * * * *

6. Section 208.6 is revised to read as

follows:

§ 208.6 Disclosure to third parties.

(a) Information contained in or

pertaining to any asylum application,

records pertaining to any credible fear

determination conducted pursuant to

§ 208.30, and records pertaining to any

reasonable fear determination

conducted pursuant to § 208.31, shall

not be disclosed without the written

consent of the applicant, except as

permitted by this section or at the

discretion of the Attorney General.

(b) The confidentiality of other

records kept by the Service and the

Executive Office for Immigration

Review that indicate that a specific alien

has applied for asylum, received a

credible fear or reasonable fear

interview, or received a credible fear or

reasonable fear review shall also be

protected from disclosure. The Service

will coordinate with the Department of

State to ensure that the confidentiality

of those records is maintained if they

are transmitted to Department of State

offices in other countries.

(c) This section shall not apply to any

disclosure to:

(1) Any United States Government

official or contractor having a need to

examine information in connection

with:

(i) The adjudication of asylum

applications;

(ii) The consideration of a request for

a credible fear or reasonable fear

interview, or a credible fear or

reasonable fear review;

(iii) The defense of any legal action

arising from the adjudication of, or

failure to adjudicate, the asylum

application, or from a credible fear

determination or reasonable fear

determination under § 208.30 or

§ 208.31;

(iv) The defense of any legal action of

which the asylum application, credible

fear determination, or reasonable fear

determination is a part; or

(v) Any United States Government

investigation concerning any criminal or

civil matter; or

(2) Any Federal, State, or local court

in the United States considering any

legal action:

(i) Arising from the adjudication of, or

failure to adjudicate, the asylum

application, or from a credible fear or

reasonable fear determination under

§ 208.30 or § 208.31; or

(ii) Arising from the proceedings of

which the asylum application, credible

fear determination, or reasonable fear

determination is a part.

§ 208.9 [Amended]

7. In § 208.9, paragraph (d) is

amended by revising the reference to

‘‘§ 208.14(b)’’ to read ‘‘§ 208.14(c).’’

8. Section 208.12 is amended by

revising paragraph (b) to read as follows:

§ 208.12 Reliance on information compiled

by other sources.

* * * * *

(b) Nothing in this part shall be

construed to entitle the applicant to

conduct discovery directed toward the

records, officers, agents, or employees of

the Service, the Department of Justice,

or the Department of State. Persons may

continue to seek documents available

through a Freedom of Information Act

(FOIA) request pursuant to 8 CFR part

103.

9. Section 208.13 is amended by:

a. Revising the heading of paragraph

(b);

b. Revising paragraph (b)(1);

c. Revising paragraph (b)(2);

d. Adding new paragraph (b)(3);

e. Adding a new paragraph (c)(2)(i)(F);

and

f. Removing paragraph (d), to read as

follows:

§ 208.13 Establishing asylum eligibility.

* * * * *

(b) Eligibility. ***

(1) Past persecution. An applicant

shall be found to be a refugee on the

basis of past persecution if the applicant

can establish that he or she has suffered

persecution in the past in the

applicant’s country of nationality or, if

stateless, in his or her country of last

habitual residence, on account of race,

religion, nationality, membership in a

particular social group, or political

opinion, and is unable or unwilling to

return to, or avail himself or herself of

the protection of, that country owing to

such persecution. An applicant who has

been found to have established such

past persecution shall also be presumed

to have a well-founded fear of

persecution on the basis of the original

claim. That presumption may be

rebutted if an asylum officer or

immigration judge makes one of the

findings described in paragraph (b)(1)(i)

of this section. If the applicant’s fear of

future persecution is unrelated to the

past persecution, the applicant bears the

burden of establishing that the fear is

well-founded.

(i) Discretionary referral or denial.

Except as provided in paragraph

(b)(1)(iii) of this section, an asylum

officer shall, in the exercise of his or her

discretion, refer or deny, or an

immigration judge, in the exercise of his

or her discretion, shall deny the asylum

application of an alien found to be a

refugee on the basis of past persecution

if any of the following is found by a

preponderance of the evidence:

(A) There has been a fundamental

change in circumstances such that the

applicant no longer has a well-founded

fear of persecution in the applicant’s

country of nationality or, if stateless, in

the applicant’s country of last habitual

residence, on account of race, religion,

nationality, membership in a particular

social group, or political opinion; or

(B) The applicant could avoid future

persecution by relocating to another part

of the applicant’s country of nationality

or, if stateless, another part of the

applicant’s country of last habitual

residence, and under all the

circumstances, it would be reasonable to

expect the applicant to do so.

(ii) Burden of proof. In cases in which

an applicant has demonstrated past

persecution under paragraph (b)(1) of

this section, the Service shall bear the

burden of establishing by a

preponderance of the evidence the

requirements of paragraphs (b)(1)(i)(A)

or (B) of this section.

(iii) Grant in the absence of wellfounded fear of persecution. An

applicant described in paragraph

(b)(1)(i) of this section who is not barred

from a grant of asylum under paragraph

(c) of this section, may be granted

asylum, in the exercise of the decisionmaker’s discretion, if:

(A) The applicant has demonstrated

compelling reasons for being unwilling

or unable to return to the country

arising out of the severity of the past

persecution; or

(B) The applicant has established that

there is a reasonable possibility that he

or she may suffer other serious harm

upon removal to that country.

(2) Well-founded fear of persecution.

(i) An applicant has a well-founded fear

of persecution if:

76134 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

(A) The applicant has a fear of

persecution in his or her country of

nationality or, if stateless, in his or her

country of last habitual residence, on

account of race, religion, nationality,

membership in a particular social group,

or political opinion; (B) There is a reasonable possibility of

suffering such persecution if he or she

were to return to that country; and (C) He or she is unable or unwilling

to return to, or avail himself or herself

of the protection of, that country

because of such fear.

(ii) An applicant does not have a wellfounded fear of persecution if the

applicant could avoid persecution by

relocating to another part of the

applicant’s country of nationality or, if

stateless, another part of the applicant’s

country of last habitual residence, if

under all the circumstances it would be

reasonable to expect the applicant to do

so.(iii) In evaluating whether the

applicant has sustained the burden of

proving that he or she has a wellfounded fear of persecution, the asylum

officer or immigration judge shall not

require the applicant to provide

evidence that there is a reasonable

possibility he or she would be singled

out individually for persecution if: (A) The applicant establishes that

there is a pattern or practice in his or

her country of nationality or, if stateless,

in his or her country of last habitual

residence, of persecution of a group of

persons similarly situated to the

applicant on account of race, religion,

nationality, membership in a particular

social group, or political opinion; and (B) The applicant establishes his or

her own inclusion in, and identification

with, such group of persons such that

his or her fear of persecution upon

return is reasonable.

(3) Reasonableness of internal

relocation. For purposes of

determinations under paragraphs

(b)(1)(i), (b)(1)(ii), and (b)(2) of this

section, adjudicators should consider,

but are not limited to considering,

whether the applicant would face other

serious harm in the place of suggested

relocation; any ongoing civil strife

within the country; administrative,

economic, or judicial infrastructure;

geographical limitations; and social and

cultural constraints, such as age, gender,

health, and social and familial ties.

Those factors may, or may not, be

relevant, depending on all the

circumstances of the case, and are not

necessarily determinative of whether it

would be reasonable for the applicant to

relocate.

(i) In cases in which the applicant has

not established past persecution, the

applicant shall bear the burden of

establishing that it would not be

reasonable for him or her to relocate,

unless the persecution is by a

government or is governmentsponsored. (ii) In cases in which the persecutor

is a government or is governmentsponsored, or the applicant has

established persecution in the past, it

shall be presumed that internal

relocation would not be reasonable,

unless the Service establishes by a

preponderance of the evidence that,

under all the circumstances, it would be

reasonable for the applicant to relocate.

* * * * *

(c) * * *

(2) * * *

(i) * * *

(F) Is described within section

212(a)(3)(B)(i)(I),(II), and (III) of the Act

as it existed prior to April 1, 1997, and

as amended by the Anti-terrorist and

Effective Death Penalty Act of 1996

(AEDPA), unless it is determined that

there are no reasonable grounds to

believe that the individual is a danger

to the security of the United States.

* * * * *

10. Section 208.14 is amended by:

a. Revising paragraph (b);

b. Redesignating paragraphs (c)–(f) as

paragraphs (d)–(g); c. Adding a new paragraph (c);

d. Revising newly redesignated

paragraph (e); and e. Adding a heading to new

redesignated paragraph (g), to read as

follows:

§ 208.14 Approval, denial, referral, or

dismissal of application.

* * * * *

(b) Approval by an asylum officer. In

any case within the jurisdiction of the

Office of International Affairs, unless

otherwise prohibited in § 208.13(c), an

asylum officer may grant, in the exercise

of his or her discretion, asylum to an

applicant who qualifies as a refugee

under section 101(a)(42) of the Act, and

whose identity has been checked

pursuant to section 208(d)(5)(A)(i) of the

Act.

(c) Denial, referral, or dismissal by an

asylum officer. If the asylum officer does

not grant asylum to an applicant after an

interview conducted in accordance with

§ 208.9, or if, as provided in § 208.10,

the applicant is deemed to have waived

his or her right to an interview or an

adjudication by an asylum officer, the

asylum officer shall deny, refer, or

dismiss the application, as follows:

(1) Inadmissible or deportable aliens.

Except as provided in paragraph (c)(4)

of this section, in the case of an

applicant who appears to be

inadmissible or deportable under

section 212(a) or 237(a) of the Act, the

asylum officer shall refer the application

to an immigration judge, together with

the appropriate charging document, for

adjudication in removal proceedings (or,

where charging documents may not be

issued, shall dismiss the application).

(2) Alien in valid status. In the case

of an applicant who is maintaining valid

immigrant, nonimmigrant, or

Temporary Protected Status at the time

the application is decided, the asylum

officer shall deny the application for

asylum.

(3) Alien with valid parole. If an

applicant has been paroled into the

United States and the parole has not

expired or been terminated by the

Service, the asylum officer shall deny

the application for asylum.

(4) Alien paroled into the United

States whose parole has expired or is

terminated.

(i) Alien paroled prior to April 1,

1997, or with advance authorization for

parole. In the case of an applicant who

was paroled into the United States prior

to April 1, 1997, or who, prior to

departure from the United States, had

received an advance authorization for

parole, the asylum officer shall refer the

application, together with the

appropriate charging documents, to an

immigration judge for adjudication in

removal proceedings if the parole has

expired, the Service has terminated

parole, or the Service is terminating

parole through issuance of the charging

documents, pursuant to § 212.5(d)(2)(i)

of this chapter.

(ii) Alien paroled on or after April 1,

1997, without advance authorization for

parole. In the case of an applicant who

is an arriving alien or is otherwise

subject to removal under § 235.3(b) of

this chapter, and was paroled into the

United States on or after April 1, 1997,

without advance authorization for

parole prior to departure from the

United States, the asylum officer will

take the following actions, if the parole

has expired or been terminated:

(A) Inadmissible under section

212(a)(6)(C) or 212(a)(7) of the Act. If

the applicant appears inadmissible to

the United States under section

212(a)(6)(C) or 212(a)(7) of the Act and

the asylum officer does not intend to

lodge any additional charges of

inadmissibility, the asylum officer shall

proceed in accordance with § 235.3(b) of

this chapter. If such applicant is found

to have a credible fear of persecution or

torture based on information elicited

from the asylum interview, an asylum

officer may refer the applicant directly

to an immigration judge in removal

proceedings under section 240 of the

Act, without conducting a separate

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76135

credible fear interview pursuant to

§ 208.30. If such applicant is not found

to have a credible fear based on

information elicited at the asylum

interview, an asylum officer will

conduct a credible fear interview and

the applicant will be subject to the

credible fear process specified at

§ 208.30(b).

(B) Inadmissible on other grounds. In

the case of an applicant who was

paroled into the United States on or

after April 1, 1997, and will be charged

as inadmissible to the United States

under provisions of the Act other than,

or in addition to, sections 212(a)(6)(C) or

212(a)(7), the asylum officer shall refer

the application to an immigration judge

for adjudication in removal proceedings.

* * * * *

(e) Duration. If the applicant is

granted asylum, the grant will be

effective for an indefinite period, subject

to termination as provided in § 208.24.

* * * * *

(g) Applicants granted lawful

permanent residence status. ***

11. Section 208.15 is revised to read

as follows:

§ 208.15 Definition of ‘‘firm resettlement.’’

An alien is considered to be firmly

resettled if, prior to arrival in the United

States, he or she entered into another

country with, or while in that country

received, an offer of permanent resident

status, citizenship, or some other type of

permanent resettlement unless he or she

establishes:

(a) That his or her entry into that

country was a necessary consequence of

his or her flight from persecution, that

he or she remained in that country only

as long as was necessary to arrange

onward travel, and that he or she did

not establish significant ties in that

country; or

(b) That the conditions of his or her

residence in that country were so

substantially and consciously restricted

by the authority of the country of refuge

that he or she was not in fact resettled.

In making his or her determination, the

asylum officer or immigration judge

shall consider the conditions under

which other residents of the country

live; the type of housing, whether

permanent or temporary, made available

to the refugee; the types and extent of

employment available to the refugee;

and the extent to which the refugee

received permission to hold property

and to enjoy other rights and privileges,

such as travel documentation that

includes a right of entry or reentry,

education, public relief, or

naturalization, ordinarily available to

others resident in the country.

12. Section 208.16 is amended by

a. Revising paragraph (b)(1);

b. Revising paragraph (b)(2);

c. Revising paragraph (b)(3);

The revisions read as follows:

§ 208.16 Withholding of removal under

section 241(b)(3) of the Act and withholding

of removal under the Convention Against

Torture.

* * * * *

(b) * * *

(1) Past threat to life or freedom. (i)

If the applicant is determined to have

suffered past persecution in the

proposed country of removal on account

of race, religion, nationality,

membership in a particular social group,

or political opinion, it shall be

presumed that the applicant’s life or

freedom would be threatened in the

future in the country of removal on the

basis of the original claim. This

presumption may be rebutted if an

asylum officer or immigration judge

finds by a preponderance of the

evidence:

(A) There has been a fundamental

change in circumstances such that the

applicant’s life or freedom would not be

threatened on account of any of the five

grounds mentioned in this paragraph

upon the applicant’s removal to that

country; or

(B) The applicant could avoid a future

threat to his or her life or freedom by

relocating to another part of the

proposed country of removal and, under

all the circumstances, it would be

reasonable to expect the applicant to do

so.

(ii) In cases in which the applicant

has established past persecution, the

Service shall bear the burden of

establishing by a preponderance of the

evidence the requirements of paragraphs

(b)(1)(i)(A) or (b)(1)(i)(B) of this section.

(iii) If the applicant’s fear of future

threat to life or freedom is unrelated to

the past persecution, the applicant bears

the burden of establishing that it is more

likely than not that he or she would

suffer such harm.

(2) Future threat to life or freedom. An

applicant who has not suffered past

persecution may demonstrate that his or

her life or freedom would be threatened

in the future in a country if he or she

can establish that it is more likely than

not that he or she would be persecuted

on account of race, religion, nationality,

membership in a particular social group,

or political opinion upon removal to

that country. Such an applicant cannot

demonstrate that his or her life or

freedom would be threatened if the

asylum officer or immigration judge

finds that the applicant could avoid a

future threat to his or her life or freedom

by relocating to another part of the

proposed country of removal and, under

all the circumstances, it would be

reasonable to expect the applicant to do

so. In evaluating whether it is more

likely than not that the applicant’s life

or freedom would be threatened in a

particular country on account of race,

religion, nationality, membership in a

particular social group, or political

opinion, the asylum officer or

immigration judge shall not require the

applicant to provide evidence that he or

she would be singled out individually

for such persecution if:

(i) The applicant establishes that in

that country there is a pattern or

practice of persecution of a group of

persons similarly situated to the

applicant on account of race, religion,

nationality, membership in a particular

social group, or political opinion; and

(ii) The applicant establishes his or

her own inclusion in and identification

with such group of persons such that it

is more likely than not that his or her

life or freedom would be threatened

upon return to that country.

(3) Reasonableness of internal

relocation. For purposes of

determinations under paragraphs (b)(1)

and (b)(2) of this section, adjudicators

should consider, among other things,

whether the applicant would face other

serious harm in the place of suggested

relocation; any ongoing civil strife

within the country; administrative,

economic, or judicial infrastructure;

geographical limitations; and social and

cultural constraints, such as age, gender,

health, and social and familial ties.

These factors may or may not be

relevant, depending on all the

circumstances of the case, and are not

necessarily determinative of whether it

would be reasonable for the applicant to

relocate.

(i) In cases in which the applicant has

not established past persecution, the

applicant shall bear the burden of

establishing that it would not be

reasonable for him or her to relocate,

unless the persecutor is a government or

is government-sponsored.

(ii) In cases in which the persecutor

is a government or is governmentsponsored, or the applicant has

established persecution in the past, it

shall be presumed that internal

relocation would not be reasonable,

unless the Service establishes by a

preponderance of the evidence that

under all the circumstances it would be

reasonable for the applicant to relocate.

* * * * *

76136 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

§§ 208.19 through 208.23 [Redesignated as

§§ 208.20 through 208.24, respectively].

13. Sections 208.19 through 208.23

are redesignated as §§ 208.20 through

208.24, respectively.

14. Section 208.19 is added to read as

follows:

§ 208.19 Decisions.

The decision of an asylum officer to

grant or to deny asylum or to refer an

asylum application, in accordance with

§ 208.14(b) or (c), shall be

communicated in writing to the

applicant. Pursuant to § 208.9(d), an

applicant must appear in person to

receive and to acknowledge receipt of

the decision to grant or deny asylum, or

to refer an asylum application unless, in

the discretion of the asylum office

director, service by mail is appropriate.

A letter communicating denial of

asylum or referral of the application

shall state the basis for denial or referral

and include an assessment of the

applicant’s credibility.

15. Newly redesignated § 208.21 is

amended by revising paragraph (a) to

read as follows:

§ 208.21 Admission of the asylee’s spouse

and children.

(a) Eligibility. In accordance with

section 208(b)(3) of the Act, a spouse, as

defined in section 101(a)(35) of the Act,

8 U.S.C. 1101(a)(35), or child, as defined

in section 101(b)(1) of the Act, also may

be granted asylum if accompanying, or

following to join, the principal alien

who was granted asylum, unless it is

determined that the spouse or child is

ineligible for asylum under section

208(b)(2)(A)(i), (ii), (iii), (iv) or (v) of the

Act for applications filed on or after

April 1, 1997, or under

§ 208.13(c)(2)(i)(A), (C), (D), (E), or (F)

for applications filed before April 1,

1997.

* * * * *

16. Newly redesignated § 208.22 is

revised to read as follows:

§ 208.22 Effect on exclusion, deportation,

and removal proceedings.

An alien who has been granted

asylum may not be deported or removed

unless his or her asylum status is

terminated pursuant to § 208.24. An

alien in exclusion, deportation, or

removal proceedings who is granted

withholding of removal or deportation,

or deferral of removal, may not be

deported or removed to the country to

which his or her deportation or removal

is ordered withheld or deferred unless

the withholding order is terminated

pursuant to § 208.24 or deferral is

terminated pursuant to § 208.17(d) or

(e).

17. Newly redesignated § 208.24 is

amended by:

a. Revising paragraph (b)(1);

b. Redesignating paragraphs (e) and (f)

as paragraphs (f) and (g), respectively;

c. Adding a new paragraph (e); and

d. Revising newly redesignated

paragraphs (f) and (g), to read as follows:

§ 208.24 Termination of asylum or

withholding of removal or deportation.

* * * * *

(b) * * *

(1) The alien is no longer entitled to

withholding of deportation or removal

because, owing to a fundamental change

in circumstances relating to the original

claim, the alien’s life or freedom no

longer would be threatened on account

of race, religion, nationality,

membership in a particular social group,

or political opinion in the country from

which deportation or removal was

withheld.

* * * * *

(e) Removal proceedings. When an

alien’s asylum status or withholding of

removal or deportation is terminated

under this section, the Service shall

initiate removal proceedings, as

appropriate, if the alien is not already in

exclusion, deportation, or removal

proceedings. Removal proceedings may

take place in conjunction with a

termination hearing scheduled under

§ 208.24(f).

(f) Termination of asylum, or

withholding of deportation or removal,

by an immigration judge or the Board of

Immigration Appeals. An immigration

judge or the Board of Immigration

Appeals may reopen a case pursuant to

§ 3.2 or § 3.23 of this chapter for the

purpose of terminating a grant of

asylum, or a withholding of deportation

or removal. In such a reopened

proceeding, the Service must establish,

by a preponderance of evidence, one or

more of the grounds set forth in

paragraphs (a) or (b) of this section. In

addition, an immigration judge may

terminate a grant of asylum, or a

withholding of deportation or removal,

made under the jurisdiction of the

Service at any time after the alien has

been provided a notice of intent to

terminate by the Service. Any

termination under this paragraph may

occur in conjunction with an exclusion,

deportation, or removal proceeding.

(g) Termination of asylum for arriving

aliens. If the Service determines that an

applicant for admission who had

previously been granted asylum in the

United States falls within conditions set

forth in § 208.24 and is inadmissible,

the Service shall issue a notice of intent

to terminate asylum and initiate

removal proceedings under section 240

of the Act. The alien shall present his

or her response to the intent to

terminate during proceedings before the

immigration judge.

18. Section 208.30 is revised to 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.

(a) Jurisdiction. The provisions of this

subpart apply to aliens subject to

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

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

the Act, the Service has exclusive

jurisdiction to make credible fear

determinations, and the Executive

Office for Immigration Review has

exclusive jurisdiction to review such

determinations. Except as otherwise

provided in this subpart, paragraphs (b)

through (g) of this section are the

exclusive procedures applicable to

credible fear interviews, determinations,

and reviews under section 235(b)(1)(B)

of the Act.

(b) Treatment of dependents. A

spouse or child of an alien may be

included in that alien’s credible fear

evaluation and determination, if such

spouse or child:

(1) Arrived in the United States

concurrently with the principal alien;

and

(2) Desires to be included in the

principal alien’s determination.

However, any alien may have his or her

credible fear evaluation and

determination made separately, if he or

she expresses such a desire.

(c) Authority. Asylum officers

conducting credible fear interviews

shall have the authorities described in

§ 208.9(c).

(d) Interview. The asylum officer, as

defined in section 235(b)(1)(E) of the

Act, will conduct the interview in a

nonadversarial manner, separate and

apart from the general public. The

purpose of the interview shall be to

elicit all relevant and useful information

bearing on whether the applicant has a

credible fear of persecution or torture,

and shall conduct the interview as

follows:

(1) If the officer conducting the

credible fear interview determines that

the alien is unable to participate

effectively in the interview because of

illness, fatigue, or other impediments,

the officer may reschedule the

interview.

(2) At the time of the interview, the

asylum officer shall verify that the alien

has received Form M–444, Information

about Credible Fear Interview in

Expedited Removal Cases. The officer

shall also determine that the alien has

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76137

an understanding of the credible fear

determination process.

(3) The alien may be required to

register his or her identity electronically

or through any other means designated

by the Attorney General.

(4) The alien may consult with a

person or persons of the alien’s

choosing prior to the interview or any

review thereof, and may present other

evidence, if available. Such consultation

shall be at no expense to the

Government and shall not unreasonably

delay the process. Any person or

persons with whom the alien chooses to

consult may be present at the interview

and may be permitted, in the discretion

of the asylum officer, to present a

statement at the end of the interview.

The asylum officer, in his or her

discretion, may place reasonable limits

on the number of persons who may be

present at the interview and on the

length of the statement.

(5) If the alien is unable to proceed

effectively in English, and if the asylum

officer is unable to proceed competently

in a language chosen by the alien, the

asylum officer shall arrange for the

assistance of an interpreter in

conducting the interview. The

interpreter must be at least 18 years of

age and may not be the applicant’s

attorney or representative of record, a

witness testifying on the applicant’s

behalf, a representative or employee of

the applicant’s country of nationality,

or, if the applicant is stateless, the

applicant’s country of last habitual

residence.

(6) The asylum officer shall create a

summary of the material facts as stated

by the applicant. At the conclusion of

the interview, the officer shall review

the summary with the alien and provide

the alien with an opportunity to correct

any errors therein.

(e) Determination. (1) The asylum

officer shall create a written record of

his or her determination, including a

summary of the material facts as stated

by the applicant, any additional facts

relied on by the officer, and the officer’s

determination of whether, in light of

such facts, the alien has established a

credible fear of persecution or torture.

(2) 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 or immigration judge

shall consider whether the alien’s case

presents novel or unique issues that

merit consideration in a full hearing

before an immigration judge.

(3) 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 Service 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 Service shall place the alien in

proceedings for consideration of the

alien’s claim pursuant to § 208.2(c)(3).

(4) An asylum officer’s determination

shall not become final until reviewed by

a supervisory asylum officer.

(f) Procedures for a positive credible

fear finding. If an alien, other than an

alien stowaway, is found to have a

credible fear of persecution or torture,

the asylum officer will so inform the

alien and issue a Form I–862, Notice to

Appear, for full consideration of the

asylum and withholding of removal

claim in proceedings under section 240

of the Act. If an alien stowaway is found

to have a credible fear of persecution or

torture, the asylum officer will so

inform the alien and issue a Form I–863,

Notice of Referral to Immigration Judge,

for full consideration of the asylum

claim, or the withholding of removal

claim, in proceedings under § 208.2(c).

Parole of the alien may be considered

only in accordance with section

212(d)(5) of the Act and § 212.5 of this

chapter.

(g) Procedures for a negative credible

fear finding. (1) If an alien is found not

to have a credible fear of persecution or

torture, the asylum officer shall provide

the alien with a written notice of

decision and inquire whether the alien

wishes to have an immigration judge

review the negative decision, using

Form I–869, Record of Negative Credible

Fear Finding and Request for Review by

Immigration Judge. The alien shall

indicate whether he or she desires such

review on Form I–869. A refusal by the

alien to make such indication shall be

considered a request for review.

(i) If the alien requests such review,

or refuses to either request or decline

such review, the asylum officer shall

arrange for detention of the alien and

serve him or her with a Form I–863,

Notice of Referral to Immigration Judge,

for review of the credible fear

determination in accordance with

paragraph (f)(2) of this section.

(ii) If the alien is not a stowaway and

does not request a review by an

immigration judge, the officer shall

order the alien removed and issue a

Form I–860, Notice and Order of

Expedited Removal, after review by a

supervisory asylum officer.

(iii) If the alien is a stowaway and the

alien does not request a review by an

immigration judge, the asylum officer

shall refer the alien to the district

director for completion of removal

proceedings in accordance with section

235(a)(2) of the Act.

(2) Review by immigration judge of a

negative credible fear finding.

(i) The asylum officer’s negative

decision regarding credible fear shall be

subject to review by an immigration

judge upon the applicant’s request, or

upon the applicant’s refusal either to

request or to decline the review after

being given such opportunity, in

accordance with section

235(b)(1)(B)(iii)(III) of the Act.

(ii) The record of the negative credible

fear determination, including copies of

the Form I–863, the asylum officer’s

notes, the summary of the material facts,

and other materials upon which the

determination was based shall be

provided to the immigration judge with

the negative determination.

(iii) A credible fear hearing shall be

closed to the public unless the alien

states for the record or submits a written

statement that the alien is waiving that

requirement; in that event the hearing

shall be open to the public, subject to

the immigration judge’s discretion as

provided in § 3.27.

(iv) Upon review of the asylum

officer’s negative credible fear

determination:

(A) If the immigration judge concurs

with the determination of the asylum

officer that the alien does not have a

credible fear of persecution or torture,

the case shall be returned to the Service

for removal of the alien. The

immigration judge’s decision is final

and may not be appealed. The Service,

however, may reconsider a negative

credible fear finding that has been

concurred upon by an immigration

judge after providing notice of its

reconsideration to the immigration

judge.

(B) If the immigration judge finds that

the alien, other than an alien stowaway,

possesses a credible fear of persecution

or torture, the immigration judge shall

vacate the order of the asylum officer

issued on Form I–860 and the Service

may commence removal proceedings

under section 240 of the Act, during

which time the alien may file an

application for asylum and withholding

of removal in accordance with

§ 208.4(b)(3)(i).

(C) If the immigration judge finds that

an alien stowaway possesses a credible

fear of persecution or torture, the alien

shall be allowed to file an application

for asylum and withholding of removal

before the immigration judge in

accordance with § 208.4(b)(3)(iii). The

immigration judge shall decide the

76138 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

application as provided in that section.

Such decision may be appealed by

either the stowaway or the Service to

the Board of Immigration Appeals. If a

denial of the application for asylum and

for withholding of removal becomes

final, the alien shall be removed from

the United States in accordance with

section 235(a)(2) of the Act. If an

approval of the application for asylum

or for withholding of removal becomes

final, the Service shall terminate

removal proceedings under section

235(a)(2) of the Act.

Dated: November 27, 2000.

Janet Reno,

Attorney General.

[FR Doc. 00–30601 Filed 12–5–00; 8:45 am]

BILLING CODE 4410–10–P

FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 109 and 110

[Notice 2000—21]

General Public Political

Communications Coordinated With

Candidates and Party Committees;

Independent Expenditures

AGENCY: Federal Election Commission.

ACTION: Final rule; transmittal of

regulations to Congress.

SUMMARY: The Federal Election

Commission is adopting new rules to

address expenditures for coordinated

communications that include clearly

identified candidates, and that are paid

for by persons other than candidates,

candidates’ authorized committees, and

party committees. The rules address

expenditures for communications made

at the request or suggestion of a

candidate, authorized committee or

party committee; as well as those where

any such person has exercised control

or decision-making authority over the

communication, or has engaged in

substantial discussion or negotiation

with those involved in creating,

producing, distributing or paying for the

communication. The Commission is

also revising the definition of

‘‘independent expenditure,’’ to conform

with this new definition. Further

changes to the rules on coordination

between political party committees and

their candidates are awaiting the

outcome of a pending Supreme Court

case. Additional information is

provided in the supplementary

information that follows.

DATES: Further action, including the

announcement of an effective date, will

be taken after these regulations have

been before Congress for 30 legislative

days pursuant to 2 U.S.C. 438(d). A

document announcing the effective date

will be published in the Federal

Register.

FOR FURTHER INFORMATION CONTACT: Ms.

Rosemary C. Smith, Assistant General

Counsel, or Ms. Rita A. Reimer,

Attorney, 999 E Street, NW.,

Washington, D.C. 20463, (202) 694–1650

or (800) 424–9530 (toll free).

SUPPLEMENTARY INFORMATION: The

Commission is issuing final rules at 11

CFR 100.23 that address coordinated

communications that include clearly

identified candidates, that are paid for

by persons other than candidates,

candidates’ authorized committees, and

party committees. The rules address

communications made at the request or

suggestion of a candidate, authorized

committee or party committee; as well

as those where a candidate, authorized

committee, or party committee has

exercised control or decision-making

authority over the communication, or

has engaged in substantial discussion or

negotiation with those involved in

creating, producing, distributing or

paying for the communication. Other

than the requirement that covered

communications include a clearly

identified candidate, the new rules

contain no content standard. The

Commission is also revising its rules at

11 CFR 100.16 and 109.1, which define

‘‘independent expenditure,’’ to conform

with this new definition; and making

conforming amendments to 11 CFR

110.14, the section of the Commission’s

rules that deals with contributions to

and expenditures by delegates and

delegate committees.

Section 438(d) of Title 2, United

States Code, requires that any rules or

regulations prescribed by the

Commission to carry out the provisions

of Title 2 of the United States Code be

transmitted to the Speaker of the House

of Representatives and the President of

the Senate 30 legislative days before

they are finally promulgated. Because

these rules were approved by the

Commission on November 30, 2000,

which is less than 30 legislative days

before the adjournment of the 106th

Congress, the Commission plans to

transmit them to Congress on the first

day of the 107th Congress, which will

occur in January 2001. A Notice

announcing the effective date of these

rules will be published in the Federal

Register.

Explanation and Justification

The Federal Election Campaign Act, 2

U.S.C. 431 et seq. (‘‘FECA’’ or the ‘‘Act’’)

prohibits corporations and labor

organizations from using general

treasury funds to make contributions to

a candidate for federal office. 2 U.S.C.

441b(a). It also imposes limits on the

amount of money or in-kind

contributions that other persons may

contribute to federal campaigns. 2

U.S.C. 441a(a). Individuals and persons

other than corporations, labor

organizations, government contractors

and foreign nationals can make

independent expenditures in

connection with federal campaigns. 11

CFR 110.4(a) and 115.2. Independent

expenditures must be made without

cooperation or consultation with any

candidate, or any authorized committee

or agent of a candidate; and they shall

not be made in concert with, or at the

request or suggestion of, any candidate,

or any authorized committee or agent of

a candidate. 2 U.S.C. 431(17).

Expenditures that are coordinated

with a candidate or campaign are

considered in-kind contributions.

Buckley v. Valeo, 424 U.S. 1, 46–47

(1976) (footnote omitted) (‘‘Buckley’’);

Federal Election Commission v. The

Christian Coalition, 52 F.Supp.2d 45, 85

(D.D.C. 1999) (‘‘Christian Coalition’’). As

such, they are subject to the limits and

prohibitions set out in the Act. The Act

defines ‘‘contribution’’ at 2 U.S.C.

431(8) to include any gift, subscription,

loan, advance, or deposit of money or

anything of value made by any person

for the purpose of influencing any

election for federal office.

The Commission is promulgating new

rules at 11 CFR 100.23 that define the

term coordinated general public

political communication. They

generally follow the standard articulated

by the United States District Court for

the District of Columbia in the Christian

Coalition decision, supra. This decision

sets out at length the standards to be

used to determine whether expenditures

for communications by unauthorized

committees, advocacy groups and

individuals are coordinated with

candidates or qualify as independent

expenditures.

A. History of the Rulemaking

This rulemaking was originally

initiated to implement the Supreme

Court’s plurality opinion in Colorado

Republican Federal Campaign

Committee v. Federal Election

Commission, 518 U.S. 604 (1996)

(Colorado I) concerning the application

of section 441a(d) of the FECA. In that

decision, the Court concluded that

political parties are capable of making

independent expenditures on behalf of

their candidates for federal office, and

that it would violate the First

Amendment to subject such