- § 1208.30 - Credible fear determinations involving stowaways and applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act.
- § 1208.31 - Reasonable fear of persecution or torture determinations involving noncitizens ordered removed under section 238(b) of the Act and noncitizens whose removal is reinstated under section 241(a)(5) of the Act.
§ 1208.30 - Credible fear determinations involving stowaways and applicants for admission who are 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, DHS has exclusive jurisdiction to make the determinations described in this subpart. Except as otherwise provided in this subpart, paragraphs (b) through (g) of this section are the exclusive procedures applicable to stowaways and applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act and who receive fear interviews, determinations, and reviews under section 235(b)(1)(B) of the Act. Prior to January 1, 2030, an alien physically present in or arriving in the Commonwealth of the Northern Mariana Islands is ineligible to apply for asylum and may only establish eligibility for withholding of removal pursuant to section 241(b)(3) of the Act or withholding or deferral of removal under the regulations in §§ 1208.16(c) through (f), 1208.17, and 1208.18 issued pursuant to the Convention Against Torture's implementing legislation.
(b) Treatment of dependents. A spouse or child of an alien may be included in that alien's 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 evaluation and determination made separately, if he or she expresses such a desire.
(c)-(d) [Reserved]
(e) Determination. For the standards and procedures for asylum officers in conducting credible fear interviews, and in making positive and negative credible fear determinations, see 8 CFR 208.30. The immigration judges will review such determinations as provided in paragraph (g) of this section and §§ 1003.42 and 1240.17 of this chapter.
(f) [Reserved]
(g) Procedures for negative fear determinations.
(1) [Reserved]
(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 or failure 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. The immigration judge shall not have the authority to remand the case to the asylum officer.
(ii) The record of the negative credible fear determination, including copies of the Form I-863, Notice of Referral to Immigration Judge, 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 will 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 § 1003.27 of this chapter.
(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 DHS for removal of the alien. The immigration judge's decision is final and may not be appealed. USCIS may nevertheless reconsider a negative credible fear finding as provided at 8 CFR 208.30(g)(1)(i).
(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 Notice and Order of Expedited Removal and refer the case back to DHS for further proceedings consistent with § 1208.2(a)(1)(ii). Alternatively, DHS 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 § 1208.4(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 § 1208.4(b)(3)(iii). The immigration judge shall decide the application as provided in that section. Such decision may be appealed by either the stowaway or DHS 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, DHS shall terminate removal proceedings under section 235(a)(2) of the Act.
§ 1208.31 - Reasonable fear of persecution or torture determinations involving noncitizens ordered removed under section 238(b) of the Act and noncitizens whose removal is reinstated under section 241(a)(5) of the Act.
(a) Jurisdiction. This section shall apply to any noncitizen ordered removed under section 238(b) of the Act or whose deportation, exclusion, or removal order is reinstated under section 241(a)(5) of the Act who, in the course of the administrative removal or reinstatement process, expresses a fear of returning to the country of removal. The Service has exclusive jurisdiction to make reasonable fear determinations, and EOIR has exclusive jurisdiction to review such determinations.
(b)-(d) [Reserved]
(e) Referral to Immigration Judge. If an asylum officer determines that a noncitizen described in this section has a reasonable fear of persecution or torture, the officer shall so inform the noncitizen and issue a Form I-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only. Such cases shall be adjudicated by the immigration judge in accordance with the provisions of § 1208.16. Appeal of the immigration judge's decision shall lie to the Board of Immigration Appeals.
(f) Removal of noncitizens with no reasonable fear of persecution or torture. If the asylum officer determines that the noncitizen has not established a reasonable fear of persecution or torture, the asylum officer shall inform the noncitizen in writing of the decision and shall inquire whether the noncitizen wishes to have an immigration judge review the negative decision, using the Record of Negative Reasonable Fear Finding and Request for Review by Immigration Judge, on which the noncitizen must indicate whether he or she desires such review. If the noncitizen refuses to make an indication, DHS shall consider such a response as a decision to decline review.
(g) Review by immigration judge. The asylum officer's negative decision regarding reasonable fear shall be subject to de novo review by an immigration judge upon the noncitizen's request. The immigration judge's review shall, where relevant, include review of the asylum officer's application of any bars to withholding of removal pursuant to 8 CFR 208.31(c). If the noncitizen requests review of the asylum officer's negative decision regarding reasonable fear, the asylum officer shall serve the noncitizen with a Form I-863, Notice of Referral to Immigration Judge. The record of determination, including copies of the Form I-863, Notice of Referral to Immigration Judge, 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. In the absence of exceptional circumstances, such review shall be conducted by the immigration judge within 10 days of the filing of the Form I-863, Notice of Referral to Immigration Judge, and the complete record of determination with the immigration court. Upon review of the asylum officer's negative reasonable fear determination:
(1) If the immigration judge concurs with the asylum officer's determination that the noncitizen does not have a reasonable fear of persecution or torture, the case shall be returned to DHS for removal of the noncitizen. No appeal shall lie from the immigration judge's decision.
(2) If the immigration judge finds that the noncitizen has a reasonable fear of persecution or torture, the noncitizen may submit an Application for Asylum and for Withholding of Removal. Such application shall be considered de novo in all respects by an immigration judge regardless of any determination made under this paragraph.
(i) The immigration judge shall consider only the noncitizen's application for withholding of removal under 8 CFR 1208.16 and shall determine whether the noncitizen's removal to the country of removal must be withheld or deferred.
(ii) Appeal of the immigration judge's decision whether removal must be withheld or deferred lies with the Board of Immigration Appeals. If the noncitizen or DHS appeals the immigration judge's decision, the Board shall review only the immigration judge's decision regarding the noncitizen's eligibility for withholding or deferral of removal under 8 CFR 1208.16.