§ 1208.35 - Limitation on asylum eligibility and credible fear procedures for those who enter the United States during emergency border circumstances.

§ 1208.35 Limitation on asylum eligibility and credible fear procedures for those who enter the United States during emergency border circumstances.

Notwithstanding any contrary section of this chapter, including §§ 1003.42, 1208.2, 1208.13, 1208.30, and 1208.33—

(a) Limitation on eligibility.

(1) Applicability. An alien A noncitizen who is described in § 1208.13(g) and who is not described in section 3(b) of the Presidential Proclamation of June 3, 2024, Securing the Border, as defined in 8 CFR 1208.13(h) is ineligible for asylum.

(2) Exceptions.

(i) This limitation on eligibility does not apply if the alien noncitizen demonstrates by a preponderance of the evidence that exceptionally compelling circumstances exist, including if the aliennoncitizen, or the aliennoncitizen's family member as described in 8 CFR 208.30(c) with whom the alien noncitizen is traveling, demonstrates by a preponderance of the evidence that, at the time of entry, the alien noncitizen or a member of the aliennoncitizen's family as described in § 208.30(c) with whom the alien noncitizen is traveling:

(A) Faced an acute medical emergency;

(B) Faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or

(C) Satisfied the definition of “victim of a severe form of trafficking in persons” provided in § 214.11 of this title.

(ii) An alien A noncitizen who demonstrates by a preponderance of the evidence any of the circumstances in paragraph (a)(2)(i) of this section shall necessarily establish exceptionally compelling circumstances.

(iii) An alien A noncitizen described in section 3(b) of the Presidential Proclamation of June 3, 2024, Securing the Border, as defined in 8 CFR 1208.13(h) or who establishes exceptionally compelling circumstances under paragraph (a)(2)(i) of this section has established exceptionally compelling circumstances under § 1208.33(a)(3).

(b) Application in credible fear determinations.

(1) Where an asylum officer has issued a negative credible fear determination pursuant to 8 CFR 208.35(b), and the alien noncitizen has requested immigration judge review of that credible fear determination, the immigration judge shall evaluate the case de novo, as specified in paragraph (b)(2) of this section. In doing so, the immigration judge shall take into account the credibility of the statements made by the alien noncitizen in support of the aliennoncitizen's claim and such other facts as are known to the immigration judge.

(2) The immigration judge shall first determine whether the alien noncitizen is subject to the limitation on asylum eligibility under paragraph (a) of this section.

(i) Where the immigration judge determines that the alien noncitizen is not subject to the limitation on asylum eligibility under paragraph (a) of this section because the alien noncitizen is not described in § 1208.13(g), the immigration judge shall follow the procedures in § 1208.33(b).

(ii) Where the immigration judge determines that the alien noncitizen is not subject to the limitation on asylum eligibility under paragraph (a) of this section because the alien noncitizen is described in section 3(b) of the Presidential Proclamation of June 3, 2024, as defined in 8 CFR 1208.13(h) or is excepted from the limitation on asylum eligibility under paragraph (a)(2) of this section, the immigration judge shall follow the procedures in § 1208.30.

(iii) Where the immigration judge determines that the alien noncitizen is subject to the limitation on asylum eligibility under paragraph (a) of this section, the immigration judge shall assess the alien noncitizen under the procedures set forth in § 1208.33(b)(2)(ii) except that the immigration judge shall apply a reasonable probability standard. For purposes of this section, reasonable probability means substantially more than a reasonable possibility, but somewhat less than more likely than not, that the alien would be persecuted because of his or her race, religion, nationality, membership in a particular social group or political opinion, or tortured, with respect to the designated country or countries of removal.

(3) Following the immigration judge's determination, the case will proceed as indicated in 8 CFR 208.35(b)(2)(v)(A) and (B).

(4) If the limitation on asylum eligibility in paragraph (a) of this section is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, then during the period(s) described in § 1208.13(g), the immigration judge shall, as applicable, apply a reasonable probability screening standard for any protection screening under § 1208.33(b)(2)(ii).

(c) Family unity and removal proceedings. In removal proceedings under section 240 of the Act, where a principal asylum applicant is found eligible for withholding of removal under section 241(b)(3) of the Act or withholding of removal under § 1208.16(c)(2) and would be granted asylum but for the limitation on asylum eligibility in paragraph (a)(1) of this section or § 1208.33(a), or both, and where an accompanying spouse or child as defined in section 208(b)(3)(A) of the Act does not independently qualify for asylum or other protection from removal or the principal asylum applicant has a spouse or child who would be eligible to follow to join that applicant as described in section 208(b)(3)(A) of the Act, the alien noncitizen shall be deemed to have established exceptionally compelling circumstances under paragraph (a)(2)(i) of this section and § 1208.33(a)(3)(i).

(d) Continuing applicability of limitation on eligibility.

(1) Subject to paragraph (d)(2) of this section, the limitation on asylum eligibility in paragraph (a) of this section shall apply to any asylum application filed by an alien a noncitizen who entered the United States during the time and in the manner described in § 1208.13(g) and who is not covered by an exception in paragraph (d)(2) of this section, regardless of when the application is filed and adjudicated.

(2) The limitation on asylum eligibility in paragraph (a) of this section shall not apply to an alien a noncitizen who was under the age of 18 at the time of the aliennoncitizen's entry, if—

(i) The alien noncitizen is applying for asylum as a principal applicant; and

(ii) The asylum application is filed after the period of time in 1208.13(g) during which the alien noncitizen entered.

(e) Severability. The Department intends that in the event that any provision of this section or the Presidential Proclamation of June 3, 2024, Securing the Border, as defined in 8 CFR 1208.13(h) is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, the provisions of this section should be construed so as to continue to give the maximum effect to those provisions permitted by law, unless such holding is that a provision is wholly invalid and unenforceable, in which event the provision should be severed from the remainder of this section and the holding should not affect the remainder of this section or the application of the provision to persons not similarly situated or to dissimilar circumstances.

[89 FR 48771, June 7, 2024, as amended at 89 FR 81285, Oct. 7, 2024]

Editorial Note

Editorial Note:

At 89 FR 81285, Oct. 7, 2024, § 1208.35 was amended by removing the reference to “§ 214.11(a)” in paragraph (a)(2)(i)(C) and adding in its place “214.201”. However, the amendment could not be incorporated due to an error in the amendatory instruction.