99-4140. Regulations Concerning the Convention Against Torture  

  • [Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
    [Rules and Regulations]
    [Pages 8478-8496]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-4140]
    
    
    
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    Part IV
    
    
    
    
    
    Department of Justice
    
    
    
    
    
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    Immigration and Naturalization Service
    
    
    
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    8 CFR Parts 3, 103, 208, etc.
    
    
    
    Regulations Concerning the Convention Against Torture; Interim Rule
    
    Federal Register / Vol. 64, No. 33 / Friday, February 19, 1999 / 
    Rules and Regulations
    
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    DEPARTMENT OF JUSTICE
    
    Immigration and Naturalization Service
    
    8 CFR Parts 3, 103, 208, 235, 238, 240, 241, 253, and 507
    
    [INS No. 1976-99; AG Order No. 2207-99]
    RIN 1115-AF39
    
    
    Regulations Concerning the Convention Against Torture
    
    AGENCY: Immigration and Naturalization Service, and Executive Office 
    for Immigration Review, Justice.
    
    ACTION: Interim rule with request for comments.
    
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    SUMMARY: This interim rule amends Department of Justice regulations by 
    establishing procedures for raising a claim for protection from 
    torture, as directed by the Foreign Affairs Reform and Restructuring 
    Act of 1998. Section 2242 of that Act requires the heads of appropriate 
    agencies to prescribe regulations for implementing United States 
    obligations under the United Nations Convention Against Torture and 
    Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention 
    Against Torture or Convention). Under Article 3 of the Convention 
    Against Torture (Article 3), the United States has agreed not to 
    ``expel, return (`refouler') or extradite'' a person to another state 
    where he or she would be tortured. The interim rule establishes 
    procedures for ensuring compliance with Article 3 with respect to 
    removal of aliens from the United States by integrating many Convention 
    Against Torture requests into the present scheme governing asylum and 
    withholding determinations before the Immigration Court. For persons 
    subject to reinstatement, administrative removal, expedited removal, or 
    other streamlined proceedings, excluding those relating to aliens 
    inadmissible on security and related grounds, the rule establishes a 
    screening mechanism followed by Immigration Court review that is 
    similar to the screening procedure currently used in determining 
    credible fear under expedited removal. The rule also establishes 
    ``deferral of removal,'' a new, limited form of protection that will be 
    accorded aliens who would be tortured in the country of removal but who 
    are barred from withholding of removal. Finally, this interim 
    regulation serves as notice to the public that, upon the effective date 
    of this rule, the informal procedure currently in place for considering 
    Convention Against Torture requests will end and those persons who have 
    raised a claim under the informal procedure will be given an 
    opportunity, as prescribed by this rule, to have their cases reviewed 
    under the new procedures.
    
    DATES: Effective date: This interim rule is effective March 22, 1999.
        Comment date: written comments must be submitted on or before April 
    20, 1999.
    
    ADDRESSES: Please submit written comments in original and three copies 
    to the Director, Policy Directives and Instructions Branch, Immigration 
    and Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 
    20536. To ensure proper handling, please reference INS No. 1976-99 on 
    your correspondence. Comments are available for public inspection at 
    the above address by calling (202) 514-3048 to arrange for an 
    appointment.
    
    FOR FURTHER INFORMATION CONTACT: For matters relating to the 
    Immigration and Naturalization Service: Dorothea Lay, 425 I Street, NW, 
    Washington, DC 20536, telephone number (202) 514-2895. For matters 
    relating to the Executive Office for Immigration Review: Margaret M. 
    Philbin, General Counsel, Executive Office for Immigration Review, 
    Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia, 22041, 
    telephone number (703) 305-0470.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        On October 21, 1998, the President signed into law legislation 
    which requires that ``[n]ot later than 120 days after the date of 
    enactment of this Act, the heads of the appropriate agencies shall 
    prescribe regulations to implement the obligations of the United States 
    under Article 3 of the United Nations Convention Against Torture and 
    Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, 
    subject to any reservations, understandings, declarations, and provisos 
    contained in the United States Senate resolution of ratification of the 
    Convention.'' Section 2242(b) of the Foreign Affairs Reform and 
    Restructuring Act of 1998 (Pub. L. 105-277, Division G, Oct. 21, 1998).
        Obligations under the Convention Against Torture have been in 
    effect for the United States since November 20, 1994. Convention 
    Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
    Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, 
    U.N. Doc. A/39/51 (1984) [hereinafter Convention or Convention Against 
    Torture]. On October 21, 1994, President Clinton deposited the United 
    States instrument of ratification of the Convention with the Secretary 
    General of the United Nations. Consistent with its terms, the 
    Convention Against Torture entered into force for the United States 30 
    days later. Under Article 3, the United States had agreed not to 
    ``expel, return (`refouler') or extradite'' a person to another state 
    where he or she would be tortured. The Department of State is 
    responsible for carrying out extradition requests and will promulgate 
    regulations to ensure compliance with Article 3 in those cases. In 
    other cases, the Attorney General is charged with expelling or 
    returning aliens from the United States to other countries. This rule 
    is published pursuant to this mandate to implement United States 
    obligations under Article 3 in the context of the Attorney General's 
    removal of aliens Article 3 provides as follows:
        1. No State Party shall expel, return, (``refouler'') or extradite 
    a person to another State where there are substantial grounds for 
    believing that he or she would be in danger of being subjected to 
    torture.
        2. For the purpose of determining whether there are such grounds, 
    the competent authorities shall take into account all relevant 
    considerations including, where applicable, the existence in the State 
    concerned of a consistent pattern of gross, flagrant, or mass 
    violations of human rights.
        This Article is similar in some ways to Article 33 of the 1951 
    Convention relating to the Status of Refugees. The Convention relating 
    to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (hereinafter 
    Refugee Convention). Article 33 provides that ``[n]o Contracting State 
    shall expel or return (`refouler') a refugee in any manner whatsoever 
    to the frontiers of territories where his life or freedom would be 
    threatened on account of race, religion, nationality, membership of a 
    particular social group or political opinion.'' The United States 
    currently implements Article 33 of the Refugee Convention through the 
    withholding of removal provision in section 241(b)(3) (formerly section 
    243(h)) of the Immigration and Nationality Act (INA or the Act). That 
    provision, as interpreted by the courts, requires the Attorney General 
    to withhold an alien's removal to a country where it is more likely 
    than not that the alien's life or freedom would be threatened on 
    account of one of the five grounds mentioned above. See INS v. Stevic, 
    467 U.S. 407, 429-30 (1984).
        However, there are some important differences between withholding 
    of removal under section 241(b)(3) of the Act and Article 3 of the 
    Convention Against Torture. First, several categories of individuals, 
    including persons who
    
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    assisted in Nazi persecution or engaged in genocide, persons who have 
    persecuted others, persons who have been convicted of particularly 
    serious crimes, persons who are believed to have committed serious non-
    political crimes before arriving in the United States, and persons who 
    pose a danger to the security of the United States, are ineligible for 
    withholding of removal. See INA section 241(b)(3)(B). Article 3 of the 
    Convention Against Torture does not exclude such persons from its 
    scope. Second, section 241(b)(3) applies only to aliens whose life or 
    freedom would be threatened on account of race, religion, nationality, 
    and membership in a particular social group or political opinion. 
    Article 3 covers persons who fear torture that may not be motivated by 
    one of those five grounds. Third, the definition of torture does not 
    encompass all types of harm that might qualify as a threat to life or 
    freedom. Thus, the coverage of Article 3 is different from that of 
    section 241(b)(3): broader in some ways and narrower in others.
        Until the October 21, 1998 legislation, there was no statutory 
    provision to implement Article 3 of the Convention Against Torture in 
    United States domestic law. When the United States Senate gave advice 
    and consent to ratification of the Convention Against Torture, it made 
    a declaration that Articles 1 through 16 were not self-executing. 
    Recognizing, however, that ratification of the Convention represented a 
    statement by the United States to the international community of its 
    commitment to comply with the Convention's provisions to the extent 
    permissible under the Constitution and existing federal statutes, the 
    Department of Justice sought to conform its practices to the Convention 
    by ensuring compliance with Article 3 in the case of aliens who are 
    subject to removal from the United States.
        In order to conform to the Convention before the enactment of 
    implementing legislation, the Immigration and Naturalization Service 
    (INS or Service) adopted a pre-regulatory administrative process to 
    assess the applicability of Article 3 to individual cases in which an 
    alien is subject to removal. Under this pre-regulatory administrative 
    process, upon completion of deportation, exclusion, or removal 
    proceedings and prior to execution of a final order of removal, the INS 
    has considered whether removing an alien to a particular country is 
    consistent with Article 3. If it is determined that the alien could not 
    be removed to the country in question consistent with Article 3, the 
    INS has used its existing discretionary authority to ensure that the 
    alien is not removed to that country for so long as he or she is likely 
    to be tortured there. See INA Sec. 103(a); 8 CFR 2.1.
        In formulating its pre-regulatory administrative process to conform 
    to Article 3 in the context of the removal of aliens, the INS has been 
    careful not to expand upon the protections that Article 3 grants. Only 
    execution of an order of removal to a country where an alien is more 
    likely than not to be tortured would violate the Convention. Therefore, 
    the INS has not addressed the question of whether Article 3 prohibits 
    removal in an individual case until there is a final administrative 
    order of removal to a place where an alien claims that he or she would 
    be tortured, and until all appeals, requests for review, or other 
    administrative or judicial challenges to execution of that order have 
    been resolved. This approach has allowed the INS to address the 
    applicability of Article 3 to a case only when actually necessary to 
    comply with the Convention. It has also allowed an individual alien to 
    exhaust all avenues for pursuing any other more extensive benefit or 
    protection for which he or she may be eligible before seeking the 
    minimal guarantee provided by Article 3 that he or she will not be 
    returned to a specific country where it is likely that he or she would 
    be tortured. At the same time, this approach has allowed the INS, the 
    agency responsible for executing removal orders, to ensure that no 
    order is executed under circumstances that would violate the 
    Convention.
    
    Goals of Interim Rule
    
        Pursuant to statutory mandate, the Department of Justice now 
    publishes this rule in order to implement the United States' Article 3 
    obligations in the context of the removal of aliens by the Attorney 
    General. The rule is published as an interim rule, effective 30 days 
    after the date of publication. This rule is intended to create fair and 
    efficient provisions to implement Article 3 within the overall 
    regulatory framework for the issuance of removal orders and decisions 
    about the execution of such orders.
        The primary goals of this rule are to establish procedures that 
    ensure that no alien is removed from the United States under 
    circumstances that would violate Article 3 without unduly disrupting 
    the issuance and execution of removal orders consistent with Article 3. 
    To this end, we have designed a system that will allow aliens subject 
    to the various types of removal proceedings currently afforded by the 
    immigration laws to seek, and where eligible, to be accorded protection 
    under Article 3. At the same time, we have created mechanisms to 
    quickly identify and resolve frivolous claims to protection so that the 
    new procedures cannot be used as a delaying tactic by aliens who are 
    not in fact at risk.
        In cases subject to streamlined, expedited removal processes under 
    current law, the rule employs screening mechanisms to quickly identify 
    potentially meritorious claims to protection and to resolve frivolous 
    ones with dispatch. For example, the rule allows for the screening of 
    aliens arriving at ports of entry to determine whether they establish a 
    credible fear of torture. This screening will be conducted in 
    conjunction with the existing credible fear of persecution screening 
    process, so that it will not complicate or delay the expedited removal 
    process established by Congress for arriving aliens. If an alien passes 
    this threshold-screening standard, his or her claim for protection 
    under Article 3 will be further examined by an immigration judge in the 
    context of removal proceedings under section 240 of the Act. The 
    screening mechanism also allows for the expeditious review by an 
    immigration judge of a negative screening determination and the quick 
    removal of an alien with no credible claim to protection.
        Furthermore, the rule establishes a new screening process to 
    rapidly identify and assess both claims for withholding of removal 
    under section 241(b)(3) of the Act and for protection under the 
    Convention by either aliens subject to administrative removal for 
    aggravated felons under section 238(b) of the Act or to reinstatement 
    of a previous order of removal under section 241(a)(5) of the Act. 
    Modeled on the credible fear screening mechanism, this screening 
    process will also allow for the fair and expeditious resolution of such 
    claims without unduly disrupting the streamlined removal processes 
    applicable to these aliens.
        The cases of alien terrorists and other aliens subject to 
    administrative removal under section 235(c) of the Act will be handled 
    through the administrative process in which the INS issues and executes 
    the removal order. Cases handled under section 235(c) are only a few 
    each year, and typically involve highly sensitive issues and 
    adjudication based on classified information under tight controls. 
    Thus, by retaining the ability to assess the applicability of Article 3 
    through the administrative removal process, the INS will both maintain 
    a workable process and ensure U.S. compliance with Article 3 in these 
    unusual cases. Similarly, the regulations
    
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    provide that an alien whose removal has been ordered by the Alien 
    Terrorist Removal Court under the special procedures set forth in Title 
    V of the Act shall not be removed to a particular country if the 
    Attorney General determines, in consultation with the Secretary of 
    State, that removal to that country would violate Article 3.
        For aliens subject to removal proceedings under section 240 of the 
    Act, exclusion proceedings, or deportation proceedings, a claim to 
    protection under the Convention Against Torture will be raised and 
    considered, along with any other applications, during removal 
    proceedings before an immigration judge. Both the alien and the INS 
    will have the ability to appeal decisions of the immigration judge to 
    the Board of Immigration Appeals (the Board). This will allow the alien 
    to seek review of this important decision, and will also allow the INS 
    to use the review mechanism to ensure that decisions about the 
    applicability of Article 3 are made consistently and according to the 
    high standards of proof required by Article 3 itself. At the same time, 
    the availability of review will not expand the process already 
    available to aliens in proceedings under section 240, who under current 
    law already have the opportunity to seek Board review of decisions of 
    the immigration judge.
        Nor does this rule expand the availability of judicial review for 
    aliens who make claims to protection under the Convention Against 
    Torture. The statute requiring regulatory implementation of obligations 
    under Article 3 explicitly provides that it does not authorize judicial 
    review of these regulations. Section 2242(d) of the Foreign Affairs 
    Reform and Restructuring Act of 1998. The rule restates at 
    Sec. 208.18(e) the statutory mandate that the only available judicial 
    review for Convention Against Torture claims is when such claims are 
    heard as part of the review of a final order of removal pursuant to 
    section 242 of the Act. Such review remains subject to the requirements 
    and limitations of section 242. Where a court has jurisdiction to 
    consider a Convention Against Torture claim, it may not, except as 
    authorized by section 242, consider other claims regarding the alien's 
    removal.
    
    Structure of Rule
    
        Generally, the rule creates two separate provisions for protection 
    under Article 3 for aliens who would be tortured in the country of 
    removal. The first provision establishes a new form of withholding of 
    removal under Sec. 208.16(c). This type of protection is only available 
    to aliens who are not barred from eligibility for withholding of 
    removal under section 241(b)(3)(B) of the Act. The second provision, 
    under Sec. 208.17(a), concerns aliens who would be tortured in the 
    country of removal but who are subject to the bars contained in section 
    241(b)(3)(B) of the Act. These aliens may only be granted deferral of 
    removal, a less permanent form of protection than withholding of 
    removal and one that is more easily and quickly terminated if it 
    becomes possible to remove the alien consistent with Article 3. 
    Deferral of removal will be granted based on the withholding of removal 
    application to an alien who is likely to be tortured in the country of 
    removal but who is barred from withholding of removal. Section 
    208.17(d) sets out a special, streamlined procedure through which the 
    INS may seek to terminate deferral of removal when appropriate.
    
    Withholding of Removal Under the Convention Against Torture
    
        Revised Sec. 208.16(c) creates a new form of withholding of 
    removal, which will be granted to an eligible alien in removal 
    proceedings who establishes that he or she would be tortured in the 
    proposed country of removal. This section references new 
    Sec. 208.18(a), which contains the definition of torture, and provides 
    that this definition will be applied in all determinations about 
    eligibility for this new form of withholding, or for deferral of 
    removal.
        An alien granted withholding under new Sec. 208.16(c) would be 
    treated similarly to an alien granted withholding of removal under 
    Sec. 208.16(b), the regulatory provision implementing section 241(b)(3) 
    of the Act. The rule provides at Sec. 208.16(c)(2) that, in order to be 
    eligible for withholding of removal under Article 3, an alien must 
    establish that it is more likely than not that he or she would be 
    tortured in the country in question. Imposition of this burden of proof 
    on the alien gives effect to one of the Senate understandings upon 
    which ratification was conditioned, which provides that ``the United 
    States understands that the phrase, `where there are substantial 
    grounds for believing that he would be in danger of being subjected to 
    torture,' as used in Article 3 of the Convention, to mean `if it is 
    more likely than not that he would be tortured.' '' The ratification 
    history makes clear that this understanding was intended to ensure that 
    the standard of proof for Article 3 would be the same standard as that 
    for withholding of removal under section 241(b)(3) of the Act, then 
    section 243(h) of the Act. See, e.g., Convention Against Torture, 
    submitted to the Senate, May 20, 1988, S. Treaty Doc. No. 100-20, at 6 
    (1988) (hereinafter S. Treaty Doc. No. 100-20).
        Section 208.16(c)(3) also directs that all evidence relevant to the 
    possibility of future torture should be considered when making the 
    determination as to whether the alien is more likely than not to be 
    tortured. It specifically provides that evidence of past torture 
    inflicted on the applicant should be considered, because evidence of 
    past torture may be probative as to whether future torture is likely.
        Section 208.16(c)(3) also requires that, in determining whether the 
    applicant has met his or her burden of proof, the decision-maker may 
    consider any evidence that the alien may be able to relocate to an area 
    of the country of removal where he or she is not likely to be tortured. 
    Consideration of this factor is consistent with long-established 
    precedent in the context of the adjudication of requests for asylum and 
    withholding of removal under section 241(b)(3) of the Act, and is 
    relevant to the likelihood that an alien would be tortured if returned 
    to a specific country. This section also provides that, where 
    applicable, the adjudicator will consider evidence of gross, flagrant, 
    or mass violations of human rights committed within the country in 
    question. This requirement is drawn directly from clause 2 of Article 
    3. The words ``where applicable'' indicate that, in each case, the 
    adjudicator will determine whether and to what extent evidence of human 
    rights violations in a given country is in fact a relevant factor in 
    the case at hand. Evidence of the gross and flagrant denial of freedom 
    of the press, without more, for example, may not tend to show that an 
    alien would be tortured if returned to that country. See, e.g., S. 
    Treaty Doc. No. 100-20, at 20. The rule further directs that any other 
    relevant information about country conditions in the country of removal 
    be considered.
        Applicants for withholding under Sec. 208.16(c) will be subject to 
    the mandatory bars to withholding contained in section 241(b)(3)(B) of 
    the Act. Section 241(b)(3)(B) of the Act bars from withholding of 
    removal aliens: who have assisted in Nazi persecution or engaged in 
    genocide; who have ordered, incited, assisted or otherwise participated 
    in the persecution of others; and who, having been convicted of a 
    particularly serious crime, pose a danger to the community of the 
    United States. The section 241(b)(3)(B) bar also applies when there are 
    serious reasons to believe that the alien has committed a serious non-
    political crime outside the
    
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    United States before arriving in the United States or there are 
    reasonable grounds to believe that the alien is a danger to the 
    security of the United States. The legislation implementing Article 3 
    provides that ``[t]o the maximum extent consistent with the obligations 
    of the United States under the Convention, subject to any reservations, 
    understandings, declarations, and provisos contained in the United 
    States Senate resolution of ratification of the Convention, the 
    regulations described in subsection (b) [mandating promulgation of 
    regulations to implement Article 3] shall exclude from the protection 
    of such regulations aliens described in section 241(b)(3)(B) of the 
    Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)).'' Section 
    2242(c) of the Foreign Affairs Reform and Restructuring Act of 1998. 
    Thus, consistent with the statutory directive, the advantages of a 
    grant of withholding of removal will not be available to such aliens. 
    Rather, their protection from return to a country where they would be 
    tortured, as required by the Convention, will be effected through a 
    less extensive form of protection, i.e., deferral of removal, 
    established in Sec. 208.17(a).
    
    Deferral of Removal Under the Convention Against Torture
    
        Although aliens who are barred from withholding of removal under 
    Sec. 241(b)(3)(B) of the Act are not eligible for withholding under 
    208.16(c), the Article 3 implementing statute directs that any 
    exclusion of these aliens from the protection of these regulations must 
    be consistent with United States obligations under the Convention, 
    subject to United States reservations, understandings, declarations, 
    and provisos conditioning ratification. Section 2242(c) of the Foreign 
    Affairs Reform and Restructuring Act of 1998. Article 3 prohibits 
    returning any person to a country where he or she would be tortured, 
    and contains no exceptions to this mandate. Nor do any of the United 
    States reservations, understandings, declarations, or provisos 
    contained in the Senate's resolution of ratification provide that the 
    United States may exclude any person from Article 3's prohibition on 
    return because of criminal or other activity or for any other reason. 
    Indeed, the ratification history of the Convention Against Torture 
    clearly indicates that the Executive Branch presented Article 3 to the 
    Senate with the understanding that it ``does not permit any discretion 
    or provide for any exceptions * * *.'' Convention Against Torture: 
    Hearing Before the Senate Comm. on Foreign Relations, 101st Cong., 18 
    (1990) (statement of Mark Richard, Deputy Assistant Attorney General 
    for the Criminal Division, DOJ).
        Wherever possible, subsequent acts of Congress must be construed as 
    consistent with treaty obligations. See e.g., Cook v. United States, 
    288 U.S. 102, 120 (1933) (``[a] treaty will not be deemed to have been 
    abrogated or modified by a later statute, unless such purpose on the 
    part of Congress has been clearly expressed.''). Here, Congress has not 
    indicated an intent to modify the obligations imposed by Article 3. In 
    fact, Congress has clearly expressed its intent that any exclusion of 
    aliens described in section 241(b)(3)(B) of the Act from the protection 
    of these regulations must be consistent with Article 3. The obligation 
    not to return such an alien to a country where he or she would be 
    tortured remains in effect. Thus, while this rule does not extend the 
    advantages associated with a grant of withholding of removal to aliens 
    barred under section 241(b)(3)(B) of the Act, it does ensure that they 
    are not returned to a country where they would be tortured.
        To this end, the rule creates a special provision under 
    Sec. 208.17(a) for deferral of removal when an alien described in 
    section 241(b)(3)(B) of the Act has been ordered removed to a country 
    where it has been determined that he or she would be tortured. The 
    process is as follows: Before determining whether the bars described in 
    section 241(b)(3)(B) of the Act apply to withholding removal of an 
    alien under the Convention Against Torture, the immigration judge is 
    required to find whether the alien is likely to be tortured in the 
    country of removal. Only after this finding is made does the 
    immigration judge decide, as required by Sec. 208.16(d), whether the 
    statutory bars to withholding of removal apply. If the bars do not 
    apply, the immigration judge will grant withholding of removal to an 
    alien who has been determined to be likely to be tortured in the 
    country of removal. If the immigration judge finds that the bars apply, 
    Sec. 208.17(a) requires the immigration judge to defer removal of an 
    alien to a country where the alien is likely to be tortured. The alien 
    need not apply separately for deferral because this form of protection 
    will be accorded automatically, based on the withholding application, 
    to an alien who is barred from withholding but is likely to be tortured 
    in the country of removal. While the order of deferral is in effect, 
    the alien will not be returned to the country in question.
        Section 208.17(a) is subject to the same standard of proof and 
    definitional provisions as Sec. 208.16(c). This will ensure that 
    compliance with Article 3 is complete and consistent in the cases of 
    aliens who are barred from withholding as well as in the cases of 
    aliens who are not barred from withholding. However, an order of 
    deferral provides a much more limited form of protection than does a 
    grant of withholding of removal. An order of deferral would not confer 
    upon the alien any lawful or permanent immigration status in the United 
    States and would be subject to streamlined and expeditious review and 
    termination if it is determined that it is no longer likely that the 
    alien would be tortured in the country to which he or she has been 
    ordered removed. Further, like withholding, deferral of removal is 
    effective only with respect to the particular country in question and 
    does not alter the government's ability to remove the alien to another 
    country where he or she would not be tortured. The rule requires the 
    immigration judge to inform the alien of the limited nature of the 
    deferral order at the time such order is entered.
        In addition, an order deferring removal to a particular country 
    will not alter INS authority to detain an alien who is otherwise 
    subject to detention. Section 241(a)(6) of the Act provides a variety 
    of grounds for INS in its discretion to detain beyond the removal 
    period an alien under a final order who cannot be removed. These 
    include, most importantly, the discretion to detain an alien granted 
    deferral of removal under Article 3 who is removable based on security 
    grounds, based on certain criminal offenses, or who has been determined 
    to pose a risk to the community. This is consistent with the Article 3 
    implementing statute, which provides that ``[n]othing in this section 
    shall be construed as limiting the authority of the Attorney General to 
    detain any person under any provision of law, including, but not 
    limited to, any provision of the Immigration and Nationality Act.'' 
    Section 2242(e) of the Foreign Affairs Reform and Restructuring Act of 
    1998. Section 208.17(c) of the interim rule provides that decisions 
    about the detention of detainable aliens who have been granted deferral 
    of removal will be made according to standard procedures under 8 CFR 
    part 241.
    
    Termination of Deferral of Removal
    
        The most important distinction between withholding of removal and 
    deferral of removal is the mode of termination. Section 208.17(d) will 
    provide for a streamlined termination process for deferral of removal 
    when it is no longer likely that an alien would be tortured in the 
    country of removal.
    
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    Under existing regulations, withholding can only be terminated when the 
    government moves to reopen the case, meets the standards for reopening, 
    and meets its burden of proof to establish by a preponderance of the 
    evidence that the alien is not eligible for withholding. The 
    termination process for deferral of removal is designed to be much more 
    accessible, so that deferral can be terminated quickly and efficiently 
    when appropriate.
        At any time while the order of deferral is in effect, the INS 
    District Counsel for the district with jurisdiction over an alien 
    granted deferral of removal may move the immigration court to schedule 
    a hearing to determine whether the deferral order can be terminated. 
    The INS motion will not be subject to the normal motion to reopen 
    requirement that the moving party seek to offer evidence that was 
    previously unavailable (i.e., could not have been discovered and 
    presented at the previous hearing) and that establishes a prima facie 
    case for termination. Rather, the Service's motion will be granted and 
    a termination hearing will be scheduled on an expedited basis if the 
    Service meets a lower threshold, which requires only that the evidence 
    was not considered at the previous hearing and is relevant to the 
    possibility that the alien would be tortured in the country of removal. 
    This will allow the Service to monitor cases in which an order of 
    deferral is in effect, and to bring such cases for termination hearings 
    when it appears that the alien may no longer face likely torture in the 
    country in question.
        The Immigration Court will provide the alien with notice of the 
    time, place, and date of the termination hearing, and will have the 
    opportunity to submit evidence to supplement his or her initial 
    application for withholding, which was the basis for the deferral 
    order. As is the case with initial asylum and withholding applications, 
    the original application, along with any supplemental information 
    submitted by the alien, will be forwarded to the Department of State, 
    which may comment on the case at its option. At the termination 
    hearing, it will be the alien's burden to establish that it is more 
    likely than not that he or she would be tortured in the country of 
    removal. The immigration judge will make a de novo determination about 
    the alien's likelihood of torture in the country in question. If the 
    immigration judge determines that the alien is more likely than not to 
    be tortured in the country to which removal has been deferred, the 
    order of deferral shall remain in place. If the alien fails to meet the 
    burden of proof, the deferral order will be terminated. If the alien 
    establishes that he or she still requires protection under the 
    Convention Against Torture, the deferral order will remain in effect. 
    Appeal of the immigration judge's decision shall lie to the Board.
        Deferral of removal may also be terminated at the alien's written 
    request under Sec. 208.17(e). For termination on this basis, the rule 
    requires that the immigration judge determine whether the alien's 
    request is knowing and voluntary. If necessary, the immigration judge 
    may conduct a hearing to make this determination. If it is determined 
    that the alien's request for termination is not knowing and voluntary, 
    deferral will not be terminated on this basis.
    
    Implementation of the Convention Against Torture
    
        Section 208.18 sets out a number of provisions governing the 
    implementation of the Convention Against Torture provisions. This 
    section contains the definition of torture that will apply in both the 
    withholding and deferral contexts, rules about the applicability of the 
    new provisions, and a section clarifying that this rule does not expand 
    the availability of judicial review to aliens who assert claims to 
    protection under the Convention Against Torture.
    
    Definition of Torture
    
        Section 208.18(a) provides the definition of torture and of terms 
    within that definition. Initially, consistent with the statute, it 
    provides that the regulatory definition of torture incorporates the 
    definition in Article 1 of the Convention, as interpreted and modified 
    by United States reservations, understandings, declarations and 
    provisos. The remainder of the definition section is drawn directly 
    from the language of the Convention, the language of the reservations, 
    understandings and declarations contained in the Senate resolution 
    ratifying the Convention, or from ratification history.
        Section 208.18(a)(1) contains the first sentence of Article 1, 
    providing the basic contours of the definition of torture. It does not 
    attempt to list the types of acts that would constitute torture, but 
    rather expresses basic elements that must be present in order for an 
    act to be torture: It must be an act causing severe pain or suffering, 
    whether physical or mental, intentionally inflicted on a person. 
    Article 16, which refers to ``other acts of cruel, inhuman or degrading 
    treatment or punishment, which do not amount to torture,'' confirms 
    that, as provided in Sec. 208.18(a)(2), torture is an extreme form of 
    cruel and inhuman treatment. See, e.g., S. Treaty Doc. No. 100-20 at 
    23.
        Section 208.18(a)(3) provides that torture ``does not include pain 
    or suffering arising only from, inherent in or incidental to lawful 
    sanctions.'' This is drawn from the second sentence of Article 1. The 
    Senate adopted an understanding providing that ``with reference to 
    article 1 of the Convention, the United States understands that 
    `sanctions' includes judicially-imposed sanctions and other enforcement 
    actions authorized by United States law or by judicial interpretation 
    of such law. Nonetheless, the United States understands that a State 
    Party could not through its domestic sanctions defeat the object and 
    purpose of the Convention to prohibit torture.'' 136 Cong. Rec. 36198 
    (1990). Therefore Sec. 208.18(a)(3) also provides that ``[l]awful 
    sanctions include judicially imposed sanctions and other enforcement 
    actions authorized by law, including the death penalty, but do not 
    include sanctions that defeat the object and purpose of the Convention 
    Against Torture to prohibit torture.'' This paragraph does not require 
    that, in order to come within the exception, an action must be one that 
    would be authorized by United States law. It must, however, be 
    legitimate, in the sense that a State cannot defeat the purpose of the 
    Convention to prohibit torture.
        Senate understandings also provide that ``the United States 
    understands that international law does not prohibit the death penalty, 
    and does not consider this Convention to restrict or prohibit the 
    United States from applying the death penalty consistent with the 
    Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the 
    United States, including any constitutional period of confinement prior 
    to the imposition of the death penalty.'' This understanding is 
    embodied in Sec. 208.18(a)(3)'s inclusion of the death penalty in the 
    description of lawful sanctions that do not constitute torture. The 
    purpose of the Senate's understanding on the death penalty is to 
    clarify that the Convention does not prohibit the United States from 
    applying the death penalty consistent with United States constitutional 
    standards. This concept will likely have limited application in the 
    context of Article 3 implementation. It means simply that the 
    constitutionally sufficient imposition of the death penalty in the 
    United States is not torture. The understanding does not mean, however, 
    that any imposition of the death penalty by a foreign state that fails 
    to satisfy United States
    
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    constitutional requirements constitutes torture. Any analysis of 
    whether the death penalty is torture in a specific case would be 
    subject to all requirements of the Convention's definition, the 
    Senate's reservations, understandings, and declarations, and the 
    regulatory definitions. Thus, even if imposition of the death penalty 
    would be inconsistent with United States constitutional standards, it 
    would not be torture if it were imposed in a legitimate manner to 
    punish violations of law. Similarly, it would not be torture if it 
    failed to meet any other element of the definition of torture.
        The definition of torture can, in limited circumstances, include 
    severe mental pain and suffering. Section 208.18(a)(4) provides a 
    detailed and restrictive definition of the type of severe mental harm 
    that can constitute torture. This language is drawn directly from the 
    Senate's understandings. See 136 Cong. Rec. 36198.
        Section 208.18(a)(5) requires that, in order to qualify as torture, 
    an act must be specifically intended to inflict severe pain or 
    suffering, a requirement clearly imposed by United States 
    understandings. Id. Thus, an act that results in unanticipated or 
    unintended severity of pain and suffering is not torture. See, e.g., S. 
    Treaty Doc. No. 100-20, at 19.
        Section 208.18(a)(6) provides that, for an act to constitute 
    torture, the victim of the act must be in the custody or physical 
    control of the perpetrator. Thus, harm, even severe pain and suffering, 
    inflicted on a person who is not within the perpetrator's custody or 
    physical control, would not qualify as torture. Again, the language of 
    this regulatory provision is taken directly from the Senate 
    understandings. See 136 Cong. Rec. 36198.
        Article 1 of the Convention Against Torture requires that torture 
    must be inflicted ``by or at the instigation of or with the consent or 
    acquiescence of a public official or other person acting in an official 
    capacity.'' Senate understandings provide that ``the term 
    `acquiescence' requires that the public official, prior to the activity 
    constituting torture, have awareness of such activity and thereafter 
    breach his legal responsibility to intervene to prevent such 
    activity.'' 136 Cong. Rec. 36198. Section 208.18(a)(7) mirrors this 
    requirement. Thus the definition of torture includes only acts that 
    occur in the context of governmental authority. See, e.g., S. Treaty 
    Doc. No. 100-20, at 19.
        Section 208.18(a)(8) provides that noncompliance with applicable 
    legal procedural standards does not per se constitute torture. Again, 
    this provision mirrors Senate understandings. 136 Cong. Rec. 36198.
    
    Applicability of New Provisions
    
        Section 208.18(b)(1) provides that aliens who are in exclusion, 
    deportation, or removal proceedings as of the effective date of this 
    rule may seek withholding under the Convention Against Torture, and if 
    applicable be considered for deferral under the Convention, through the 
    procedures established by this rule. Section 208.18(b)(2) also 
    establishes special procedures to provide a reasonable opportunity to 
    request consideration for protection under Article 3 for aliens who 
    were either ordered removed prior to the effective date of this rule, 
    or whose removal orders become final prior to the effective date of the 
    rule. Such aliens will be given a 90-day window of time in which to 
    file a motion to reopen before the immigration court or before the 
    Board of Immigration Appeals, to apply for protection under this rule. 
    Any motion filed by such an alien within 90 days of the effective date 
    of this rule, March 22, 1999, will not be subject to the normal 
    requirement that the motion must seek to present new evidence that was 
    unavailable and could not have been presented at the previous hearing. 
    Nor will such a motion be subject to the normal time and numerical 
    limitations on motions to reopen under Secs. 3.2 and 3.23. Such a 
    motion will, however, be subject to the other requirements set out in 
    the regulations for a motion to reopen. Therefore it will not be 
    granted unless the evidence sought to be offered establishes a prima 
    facie case that the alien's removal would violate Article 3 of the 
    Convention Against Torture. Similarly, like other motions to reopen, 
    such a motion will not automatically stay the alien's removal. Rather, 
    the alien must request a stay of removal at the time of filing the 
    motion to reopen.
    
    Aliens Who Requested Protection Under the Convention Through the 
    INS Pre-regulatory Administrative Process To Ensure Compliance With 
    Article 3
    
        As explained previously, the INS has, prior to the effective date 
    of this rule, conducted a pre-regulatory administrative process to 
    comply with Article 3 of the Convention Against Torture until 
    implementing legislation was enacted and obligations under that Article 
    could be implemented by this rule. Section 208.18(b)(3) of this rule 
    provides that, after the effective date of this rule, the INS pre-
    regulatory administrative process for ensuring compliance with Article 
    3 will end. After the effective date of this rule, except as otherwise 
    provided, the INS will no longer stay an alien's removal based only on 
    a request for protection under Article 3, nor will it consider the 
    applicability of Article 3 to an individual case under its pre-
    regulatory administrative process.
        Section 208.18(b)(4) provides that the new procedures established 
    by this rule to provide for the consideration of claims to protection 
    under the Convention Against Torture do not apply to cases in which the 
    Service, prior to the effective date of this rule, has made a final 
    administrative determination about the applicability of Article 3. This 
    section provides that, if the Service has determined under its pre-
    regulatory administrative process that an alien cannot be removed to a 
    particular country consistent with Article 3, the alien be considered 
    to have been granted withholding of removal under Sec. 208.16(c), 
    unless the alien is subject to mandatory denial of withholding under 
    Sec. 208.16(d) (2) or (3). If such an alien is barred from withholding 
    of removal, he or she will be considered to have been granted deferral 
    of removal under Sec. 208.17(a). Similarly, if an alien was determined 
    under the pre-regulatory administrative process not to require 
    protection under Article 3, that alien will be considered to have been 
    finally denied withholding of removal under Sec. 208.16(c) and deferral 
    of removal under Sec. 208.17(a). This paragraph applies only to cases 
    in which the Service actually reached a final determination about the 
    applicability of Article 3 to an individual case.
        A different regime will apply to aliens who requested protection 
    under the pre-regulatory administrative process but did not receive a 
    final determination from the Service. The Service will provide notice 
    about the end of the pre-regulatory administrative process to such 
    aliens. This notice will inform the alien of the new regulatory process 
    through which Article 3 claims will be processed. The notice will also 
    explain that an alien who was ordered removed or whose removal order 
    became final prior to the effective date of this rule may obtain 
    consideration of a claim under Article 3 only through the procedures 
    set out in this rule. An alien under a final removal order issued by 
    EOIR may obtain consideration of the Article 3 claim by filing a motion 
    to reopen with the immigration court or the Board of Immigration 
    Appeals. In order to provide a reasonable opportunity to file such a 
    motion, an alien who has a request for Article 3 protection pending 
    with the Service on
    
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    the date this rule becomes effective will be granted a stay of removal 
    effective until 30 days after the notice is served on the alien. Any 
    motion filed by such an alien will not be subject to the normal 
    requirements for motions to reopen. The immigration judge or the Board 
    shall grant such a motion if it is accompanied by a copy of the notice 
    provided by the Service or by other convincing evidence that the alien 
    requested protection under Article 3 from the Service through the pre-
    regulatory administrative process and did not receive a final 
    administrative determination prior to the effective date of this rule. 
    The filing of such a motion shall extend the stay of removal pending 
    the adjudication of the motion. This special provision ensures that 
    those who requested protection under the INS pre-regulatory 
    administrative process and did not get a ruling will have a full and 
    fair opportunity to pursue their claims for protection under the new 
    regulatory process.
        For an alien under a removal order issued by the Service under 
    section 238(b) of the Act or an alien under an exclusion, deportation, 
    or removal order that has been reinstated by the Service, the Service 
    will consider any claim to protection that is pending on the effective 
    date of this rule through the process set out in section 208.31. For an 
    alien ordered removed by the Service under section 235(c) of the Act, 
    the Service will decide under section 235.8(b)(4) any Article 3 claim 
    that is pending on the effective date of this rule. Such a claim will 
    not be subject to the procedures set out for consideration of Article 3 
    claims by an immigration judge, the Board of Immigration Appeals, or an 
    asylum officer.
    
    Cases in Which Diplomatic Assurances Are Considered
    
        Section 208.18(c) sets out special procedures for cases in which 
    the Secretary of State forwards to the Attorney General assurances that 
    the Secretary has obtained from the government of a specific country 
    that an alien would not be tortured if returned there. In some cases, 
    it may be possible for the United States to actually reduce the 
    likelihood that an alien would be tortured in a particular country. The 
    nature and reliability of such assurances, and any arrangements through 
    which such assurances might be verified, would require careful 
    evaluation before any decision could be reached about whether such 
    assurances would allow an alien's removal to that country consistent 
    with Article 3. This paragraph sets out special procedures under which 
    the Attorney General, in consultation with the Secretary of State, will 
    assume responsibility for assessing the adequacy of any such assurances 
    in appropriate cases. Cases will be handled under this provision only 
    if such assurances are actually forwarded to the Attorney General by 
    the Secretary of State for consideration under this special process. It 
    is anticipated that these cases will be rare.
        In cases in which the Secretary has forwarded assurances under this 
    provision, the procedures for administrative consideration of claims 
    under the Convention Against Torture set out elsewhere in this rule 
    will not apply. Further, the rule provides that the Attorney General's 
    authority to make determinations about the applicability of Article 3 
    in such a case may be exercised by the Deputy Attorney General or by 
    the Commissioner, but may not be further delegated. Thus the rule 
    ensures that cases involving the adequacy of diplomatic assurances 
    forwarded to the Attorney General by the Secretary of State will 
    receive consideration at senior levels within the Department of 
    Justice, which is appropriate to the delicate nature of a diplomatic 
    undertaking to ensure that an alien is not tortured in another country. 
    Under Sec. 208.17(f), these special procedures may also be invoked in 
    appropriate cases for considering whether deferral of removal should be 
    terminated.
    
    Cases Involving Aliens Ordered Removed Under Section 235(c) of the 
    Act
    
        Section 208.18(d) provides, as discussed previously in the 
    supplementary information, that an alien ordered removed pursuant to 
    section 235(c) of the Act will not be removed under circumstances that 
    would violate section 241(b)(3) of the Act or Article 3 of the 
    Convention Against Torture. Any claim by an alien for protection 
    against removal to a country where the alien claims he or she would be 
    tortured will be considered by the Service under the standards 
    applicable to protection under the Convention Against Torture, in light 
    of the special circumstances of each case.
        Because these determinations will be made by the Service, the 
    procedural provisions in Part 208 for consideration or decision of an 
    alien's claims by an immigration judge, the Board, or an asylum officer 
    do not apply in such cases. Thus, although this rule amends 8 CFR 
    253.1(f) to provide that an alien removable under section 235(c) of the 
    Act may apply for protection under the Convention Against Torture under 
    8 CFR Part 208, such an alien's claim would be considered by the 
    Service as provided in Sec. 208.18(d), and not by an immigration judge 
    or asylum officer.
        Similarly, although Sec. 208.2(b)(1)(C)(v) provides that an 
    immigration judge shall have exclusive jurisdiction over any asylum 
    application filed on or after April 1, 1997, by an alien who has been 
    ordered removed under section 235(c) of the Act, that provision by its 
    express terms is only applicable ``[a]fter Form I-863, Notice of 
    Referral to Immigration Judge, has been filed with the Immigration 
    Court.'' When the alien is found to be removable as provided in section 
    235(c)(2)(B) of the Act, the Service issues a removal order without 
    referring the case to an immigration judge. Thus this provision 
    relating to the authority of the immigration judge will apply to an 
    alien who is subject to removal under section 235(c) of the Act only if 
    the Service makes a determination to refer the case to an immigration 
    judge for consideration as provided in sections 235.8(b)(2)(ii) and 
    (d).
    
    Expedited Removal and the Credible Fear Process
    
        The credible fear screening provisions at Sec. 208.30 are amended 
    to ensure that arriving aliens who are subject to the statutory 
    provisions for expedited removal at ports of entry will, when 
    necessary, be considered for protection under Article 3 as well as for 
    asylum under section 208 of the Act and withholding under section 
    241(b)(3)(B) of the Act. Under current procedures, an alien subject to 
    expedited removal who expresses a fear of persecution in his or her 
    country of origin is interviewed by an asylum officer to determine 
    whether the alien has a credible fear of persecution. Under the amended 
    procedures, an alien who expresses such a fear will also be examined to 
    determine whether he or she has a credible fear of torture. An alien 
    will be found to have a credible fear of torture if the alien shows 
    that there is a significant possibility that he or she is eligible for 
    withholding of removal or deferral of removal under the Convention 
    Against Torture. If the alien has a credible fear of torture, he or she 
    will be referred to an immigration judge for removal proceedings under 
    section 240 of the Act, just as in the current credible fear of 
    persecution process. In these proceedings, the alien will be able to 
    assert a claim to withholding of removal under the Convention Against 
    Torture or under section 241(b)(3) of the Act, or to deferral of 
    removal in the case of an alien barred from withholding, or to asylum 
    under section 208 of the Act. Similarly, consistent with current
    
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    procedures in the expedited removal context, upon the alien's request, 
    an asylum officer's negative credible fear of torture determination 
    will be subject to expeditious review by an immigration judge, with no 
    appeal of this screening review. Thus, the interim rule provides for 
    fair resolution of claims to protection under the Convention Against 
    Torture in the expedited removal context, without disrupting the 
    streamlined process established by Congress to circumvent meritless 
    claims.
    
    Reasonable Fear Screening Process for Aliens in Administrative 
    Removal Proceedings for Aggravated Felons and Aliens Subject to 
    Reinstated Orders
    
        Section 208.31 creates a new screening process to evaluate torture 
    claims for aliens subject to streamlined administrative removal 
    processes for aggravated felons under section 238(b) of the Act and for 
    aliens subject to reinstatement of a previous removal order under 
    section 241(a)(5) of the Act. This new screening process is modeled on 
    the credible fear screening process, but requires the alien to meet a 
    higher screening standard. Similar to the credible fear screening 
    process, Sec. 208.31 is intended to provide for the fair resolution of 
    claims both to withholding under section 241(b)(3) of the Act, and to 
    protection under the Convention Against Torture without unduly 
    disrupting the operation of these special administrative removal 
    processes.
        Unlike the broad class of arriving aliens who are subject to 
    expedited removal, these two classes of aliens are ineligible for 
    asylum. They may, however, be entitled to withholding of removal under 
    either section 241(b)(3) of the Act, or under the Convention Against 
    Torture, or to deferral of removal under Sec. 208.17(a). Because the 
    standard for showing entitlement to these forms of protection (a 
    probability of persecution or torture) is significantly higher than the 
    standard for asylum (a well-founded fear of persecution), the screening 
    standard adopted for initial consideration of withholding and deferral 
    requests in these contexts is also higher. In fact, the ``reasonable 
    fear'' screening standard is the same standard of proof used in asylum 
    eligibility determinations. That is, the alien must show that there is 
    a ``reasonable possibility'' that he or she would be persecuted or 
    tortured in the country of removal.
        Under the new screening process, aliens in these streamlined 
    administrative removal proceedings who express a fear of persecution or 
    torture will be interviewed by an asylum officer to determine whether 
    they have a reasonable fear of persecution or torture. If they are 
    determined to have such a fear, they will be referred to an immigration 
    judge for a determination only as to their eligibility for withholding 
    of removal under either section 241(b)(3) of the Act or under the 
    Convention Against Torture, or for deferral of removal. Either the 
    alien or the Service may appeal the immigration judge's decision about 
    eligibility for withholding or deferral of removal to the Board of 
    Immigration Appeals. The Board will have jurisdiction to review only 
    the issue of eligibility for withholding or deferral of removal and may 
    not review issues related to the administratively issued order of 
    removal or to the reinstatement of the previous order of removal.
        If the asylum officer determines that the alien does not have a 
    reasonable fear of persecution or torture, the alien will be afforded 
    the opportunity for an expeditious review of the negative screening 
    determination by an immigration judge. A new form I-898, Record of 
    Negative Reasonable Fear Finding and Request for Review by the 
    Immigration Judge, will be created on which the alien may request 
    review of a negative asylum officer screening determination. If the 
    immigration judge upholds the negative screening determination, the 
    alien may be removed without further review. If the immigration judge 
    reverses the asylum officer's screening determination, however, the 
    immigration judge will proceed to a determination only as to 
    eligibility for withholding of removal under section 241(b)(3) of the 
    Act or under the Convention Against Torture, or if applicable, deferral 
    of removal. Again, either the alien or the INS may appeal the 
    immigration judge's decision about withholding or deferral to the Board 
    of Immigration Appeals.
        This reasonable fear screening process provides a formal mechanism, 
    previously unavailable, to make determinations under section 241(b)(3) 
    of the Act for aliens who are subject to administrative removal as 
    aggravated felons under section 238(b) of the Act, but who were 
    sentenced to an aggregate term of imprisonment of less than five years, 
    and thus are not conclusively barred from withholding under section 
    241(b)(3)(B) of the Act. This same mechanism will provide for 
    consideration of applications for withholding of removal under the 
    Convention Against Torture, and for consideration for deferral of 
    removal when necessary, in these cases. Thus the new screening process 
    will unify any consideration of applications for withholding of removal 
    under section 241(b)(3) of the Act and under the Convention Against 
    Torture in these cases.
        Similarly, the new reasonable fear of persecution or torture 
    screening process will ensure proper consideration of applications for 
    withholding under section 241(b)(3) of the Act and under the Convention 
    Against Torture, and of deferral of removal when appropriate, in cases 
    subject to reinstatement of a previous removal order. Thus it replaces 
    current regulatory provisions at Sec. 241.8(d) for the consideration of 
    applications for withholding of removal under section 241(b)(3) of the 
    Act.
    Form I-589 as application form for withholding of removal under the 
    Convention Against Torture
        The Form I-589, Application for Asylum and for Withholding of 
    Removal, will serve as an application form for withholding of removal 
    under the Convention Against Torture, as well as for withholding of 
    removal under section 241(b)(3) of the Act. Supplemental instructions 
    for the Form I-598 will be issued to explain how an alien may use this 
    form to seek withholding of removal under the Convention. Under this 
    rule, consideration for deferral of removal must be undertaken when an 
    alien's application for withholding has been denied because of a bar to 
    withholding. Therefore, the Form I-589 will automatically trigger 
    deferral of removal where appropriate.
        Use of the Form I-589 will avoid confusion by allowing aliens who 
    believe they are at risk of harm to apply for asylum, as well as these 
    other risk-based forms of protection, at the same time, using the same 
    form. It will also help to ensure that these claims are presented at 
    one time, thereby allowing resolution of these issues in the normal 
    course of proceedings.
        Additionally, use of the Form I-589 will obviate the need for two 
    separate forms that, in many cases, will elicit similar information. In 
    many cases in which the alien applies both for asylum and withholding 
    of removal under the Act and for withholding under the Convention 
    Against Torture, the underlying facts supporting these claims will be 
    the same. Thus use of the I-589 will reduce the burden on the applicant 
    while also simplifying the adjudication process for the Service and 
    EOIR. In all cases, the same biographical background information will 
    be necessary. Additionally, the Form I-589 already contains questions 
    that would elicit the facts underlying an alien's fear of torture as 
    well as his or her fear of persecution.
    
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    For example, the form specifically asks the applicant whether he or she 
    fears torture upon return to a country, and also asks open-ended 
    questions designed to elicit any information about past mistreatment or 
    fear of mistreatment in the future. Thus the existing form can easily 
    be used for the adjudication of claims to protection under the 
    Convention Against Torture.
    
    Good Cause Exception
    
        The interim rule is effective 30 days from the date of publication 
    in the Federal Register, although the Department invites public comment 
    for 60 days from the date of publication. For the following reasons, 
    the Department finds that good cause exists under 5 U.S.C. 553(b)(B) 
    and (d)(3) for implementing this rule as an interim rule without the 
    prior notice and comment period ordinarily required under that 
    provision. First, section 2242(b) of the Foreign Affairs Reform and 
    Restructuring Act of 1998 requires that ``[n]ot later than 120 days 
    after the date of the enactment of this Act, the heads of the 
    appropriate agencies shall prescribe regulations to implement the 
    obligations of the United States under Article 3 of the [Convention 
    Against Torture].'' In order to comply with this statutory requirement, 
    it was necessary to dispense with the usual period of public notice and 
    comment; however, the Department will consider carefully all public 
    comments submitted in the course of preparation of a final rule. 
    Second, this rule provides a formal mechanism for requesting protection 
    from torture, and must be implemented expeditiously in order to allow 
    aliens who may require protection under the Convention Against Torture 
    to seek such protection under a regulatory system. While the current 
    informal procedure will remain in place during the next 30 days, it 
    allows for consideration of such requests only at the end of the 
    removal process, after all other avenues of appeal have been exhausted. 
    The interim rule will permit most aliens to raise their claims during 
    the course of regular removal proceedings, and thus many individuals 
    currently in proceedings before the immigration court will have the 
    opportunity to have their request for protection resolved more 
    expeditiously than under the current informal procedure. Therefore, 
    early implementation will be advantageous to those persons seeking 
    protection under the Convention Against Torture, and it is contrary to 
    the intent of the statute and the public interest to delay the 
    implementation of this rule until after a notice and comment period.
    
    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 economic 
    impact on a substantial number of small entities because of the 
    following reason: This rule involves the process for adjudication of 
    certain requests for withholding of removal. This process affects 
    individuals and not small entities.
    
    Unfunded Mandates Reform Act of 1995
    
        This rule will not result in the expenditure by State, local and 
    tribal governments, in the aggregate, or by the private sector, of $100 
    million or more in any one-year, and it will not significantly or 
    uniquely affect small governments. Therefore, no actions were deemed 
    necessary under the Provisions of the Unfunded Mandates Reform Act of 
    1995.
    
    Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined by section 251 of the 
    Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
    rule will not result in an annual effect on the economy of $100 million 
    or more; a major increase in costs or prices; or significant adverse 
    effects on competition, employment, investment, productivity, 
    innovation, or on the ability of the United States-based companies to 
    compete with foreign-based companies in domestic and export markets.
    
    Executive Order 12866
    
        This rule is considered by the Department of Justice to be a 
    ``significant regulatory action'' under Executive Order 12866, 
    Regulatory Planning and Review. Accordingly, this regulation has been 
    submitted to the Office of Management and Budget for review.
    
    Executive Order 12612
    
        The regulation adopted herein 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 Executive Order 12612, it is determined that this rule 
    does not have sufficient federalism implications to warrant the 
    preparation of a Federalism Assessment.
    
    Executive Order 12988--Civil Justice Reform
    
        This interim rule meets the applicable standards set forth in 
    sections 3(a) and 3(b)(2) of Executive Order 12988.
    
    Paperwork Reduction Act
    
        The information collection requirement contained in this rule has 
    been approved for use by the Office of Management and Budget (OMB) 
    under the Paperwork Reduction Act. The OMB control number for this 
    collection is contained in 8 CFR part 299.5, Display of control 
    numbers.
    
    List of Subjects
    
    8 CFR Part 3
    
        Administrative practice and procedure, Immigration, Organization 
    and functions (Government agencies).
    
    8 CFR Part 103
    
        Administrative practice and procedure, Authority delegations 
    (Government agencies), Freedom of information, Privacy, Reporting and 
    recordkeeping requirements, Surety bonds.
    
    8 CFR Part 208
    
        Administrative practice and procedure, Aliens, Immigration, 
    Reporting and recordkeeping requirements.
    
    8 CFR Part 235
    
        Administrative practice and procedure, Aliens, Immigration, 
    Reporting and recordkeeping requirements.
    
    8 CFR Part 238
    
        Air Carriers, Aliens, Government contracts, Maritime carriers.
    
    8 CFR Part 240
    
        Administrative practice and procedure, Immigration.
    
    8 CFR Part 241
    
        Aliens, Immigration.
    
    8 CFR Part 253
    
        Air carriers, Airmen, Aliens, Maritime carriers, Reporting and 
    recordkeeping requirements, Seamen.
    
    8 CFR Part 507
    
        Aliens, Terrorists.
    
        Accordingly, chapter I of title 8 of the Code of Federal 
    Regulations is amended as follows:
    
    PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    
        1. The authority citation for part 3 continues to read as follows:
    
    
    [[Page 8487]]
    
    
        Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
    1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 
    CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.
    
        2. In Sec. 3.23, revise the paragraph heading and the first 
    sentence in paragraph (b)(4)(i) to read as follows:
    
    
    Sec. 3.23  Reopening or Reconsideration before the Immigration Court.
    
    * * * * *
        (b) * * *
        (4) * * *
        (i) Asylum and withholding of removal. The time and numerical 
    limitations set forth in paragraph (b)(1) of this section shall not 
    apply if the basis of the motion is to apply for asylum under section 
    208 of the Act or withholding of removal under section 241(b)(3) of the 
    Act or withholding of removal under the Convention Against Torture, and 
    is based on changed country conditions arising in the country of 
    nationality or the country to which removal has been ordered, if such 
    evidence is material and was not available and could not have been 
    discovered or presented at the previous proceeding. * * *
        3. In Sec. 3.42, revise paragraphs (d) and (f) to read as follows:
    
    
    Sec. 3.42  Review of credible fear determination.
    
    * * * * *
        (d) Standard of review. The immigration judge shall make a de novo 
    determination as to whether there is a significant possibility, taking 
    into account the credibility of the statements made by the alien in 
    support of the alien's claim and such other facts as are known to the 
    immigration judge, that the alien could establish eligibility for 
    asylum under section 208 of the Act or withholding under section 
    241(b)(3) of the Act or withholding under the Convention Against 
    Torture.
    * * * * *
        (f) Decision. If an immigration judge determines that an alien has 
    a credible fear of persecution or torture, the immigration judge shall 
    vacate the order entered pursuant to section 235(b)(1)(B)(iii)(I) of 
    the Act. Subsequent to the order being vacated, the Service shall issue 
    and file Form I-862, Notice to Appear, with the Immigration Court to 
    commence removal proceedings. The alien shall have the opportunity to 
    apply for asylum and withholding of removal in the course of removal 
    proceedings pursuant to section 240 of the Act. If an immigration judge 
    determines that an alien does not have a credible fear of persecution 
    or torture, the immigration judge shall affirm the asylum officer's 
    determination and remand the case to the Service for execution of the 
    removal order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
    Act. No appeal shall lie from a review of an adverse credible fear 
    determination made by an immigration judge.
    * * * * *
    
    PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
    SERVICE RECORDS
    
        4. The authority citation for part 103 continues to read as 
    follows:
    
        Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
    note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874, 
    15557; 3 CFR, 1982 Comp., p 166; 8 CFR part 2.
    
        5. In Sec. 103.12, revise paragraph (a)(5) to read as follows:
    
    
    Sec. 103.12  Definition of the term ``lawfully present'' aliens for 
    purposes of applying for Title II social security benefits under Public 
    Law 104-193.
    
        (a) * * *
        (5) Applicants for asylum under section 208(a) of the Act and 
    applicants for withholding of removal under section 241(b)(3) of the 
    Act or under the Convention Against Torture who have been granted 
    employment authorization, and such applicants under the age of 14 who 
    have had an application pending for at least 180 days.
    * * * * *
    
    PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
    
        6. 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.
    
        7. Revise Sec. 208.1 to read as follows:
    
    
    Sec. 208.1  General.
    
        (a) Applicability. Unless otherwise provided in this chapter, this 
    subpart shall apply to all applications for asylum under section 208 of 
    the Act or for withholding of deportation or withholding of removal 
    under section 241(b)(3) of the Act, or under the Convention Against 
    Torture, whether before an asylum officer or an immigration judge, 
    regardless of the date of filing. For purposes of this chapter, 
    withholding of removal shall also mean withholding of deportation under 
    section 243(h) of the Act, as it appeared prior to April 1, 1997, 
    except as provided in Sec. 208.16(d). Such applications are hereinafter 
    referred to as ``asylum applications.'' The provisions of this part 
    shall not affect the finality or validity of any decision made by a 
    district director, an immigration judge, or the Board of Immigration 
    Appeals in any such case prior to April 1, 1997. No asylum application 
    that was filed with a district director, asylum officer, or immigration 
    judge prior to April 1, 1997, may be reopened or otherwise reconsidered 
    under the provisions of this part except by motion granted in the 
    exercise of discretion by the Board of Immigration Appeals, an 
    immigration judge, or an asylum officer for proper cause shown. Motions 
    to reopen or reconsider must meet the requirements of sections 
    240(c)(5) and (c)(6) of the Act, and 8 CFR parts 3 and 103, where 
    applicable.
        (b) Training of asylum officers. The Director of International 
    Affairs shall ensure that asylum officers receive special training in 
    international human rights law, nonadversarial interview techniques, 
    and other relevant national and international refugee laws and 
    principles. The Director of International Affairs shall also, in 
    cooperation with the Department of State and other appropriate sources, 
    compile and disseminate to asylum officers information concerning the 
    persecution of persons in other countries on account of race, religion, 
    nationality, membership in a particular social group, or political 
    opinion, torture of persons in other countries, and other information 
    relevant to asylum determinations, and shall maintain a documentation 
    center with information on human rights conditions.
        8. In Sec. 208.2, revise paragraphs (a), (b)(1)(ii), and (b)(3), to 
    read as follows:
    
    
    Sec. 208.2  Jurisdiction.
    
        (a) Office of International Affairs. Except as provided in 
    paragraph (b) of this section, the Office of International Affairs 
    shall have initial jurisdiction over an asylum application filed by, or 
    a credible fear determination pertaining to, 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 to consider applications for withholding of removal under 
    Sec. 208.31. An application that is complete within the meaning of 
    Sec. 208.3(c)(3) shall either be adjudicated or referred by asylum 
    officers under this part in accordance with Sec. 208.14. An application 
    that is incomplete within the meaning of Sec. 208.3(c)(3) shall be 
    returned to the applicant.
        (b) * * *
        (1) * * *
        (ii) An alien stowaway who has been found to have a credible fear 
    of
    
    [[Page 8488]]
    
    persecution or torture pursuant to the procedures set forth in subpart 
    B of this part;
    * * * * *
        (3) Other aliens. Immigration judges shall have exclusive 
    jurisdiction over asylum applications filed by an alien who has been 
    served 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 a copy of 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 Executive Office for Immigration Review under 
    Sec. 208.31.
        9. In Sec. 208.4, revise paragraph (a) introductory text and 
    paragraph (b)(2) to read as follows:
    
    
    Sec. 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 
    Sec. 208.16 of this part. If an applicant submits 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 or an immigration 
    judge shall review the application to determine if the application 
    should be rejected or denied. For the purpose of making determinations 
    under section 208(a)(2) of the Act, the following rules shall apply:
    * * * * *
        (b) * * *
        (2) With the asylum office. Asylum applications shall be filed 
    directly with the asylum office having jurisdiction over the matter in 
    the case of an alien who has received the express consent of the 
    Director of Asylum to do so or in the case of an alien whose case has 
    been referred to the asylum office for purposes of conducting a 
    reasonable fear determination under Sec. 208.31 of this part.
    * * * * *
        10. In Sec. 208.5, revise paragraph (b)(1) introductory text to 
    read as follows:
    
    
    Sec. 208.5  Special duties toward aliens in custody of the Service.
    
    * * * * *
        (b) * * *
        (1) If an alien crewmember or alien stowaway on board a vessel or 
    other conveyance alleges, claims, or otherwise makes known to an 
    immigration inspector or other official making an examination on the 
    conveyance that he or she is unable or unwilling to return to his or 
    her country of nationality or last habitual residence (if not a 
    national of any country) because of persecution or a fear of 
    persecution in that country on account of race, religion, nationality, 
    membership in a particular social group, or political opinion, or if 
    the alien expresses a fear of torture upon return to that country, the 
    alien shall be promptly removed from the conveyance. If the alien makes 
    such fear known to an official while off such conveyance, the alien 
    shall not be returned to the conveyance but shall be retained in or 
    transferred to the custody of the Service.
    * * * * *
        11. In Sec. 208.11, revise paragraph (b)(2) to read as follows:
    
    
    Sec. 208.11  Comments from the Department of State.
    
    * * * * *
        (b) * * *
        (2) Information about whether persons who are similarly situated to 
    the applicant are persecuted or tortured in his or her country of 
    nationality or habitual residence and the frequency of such persecution 
    or torture; or
     * * * * *
        12. In Sec. 208.12, revise paragraph (a) to read as follows:
    
    
    Sec. 208.12  Reliance on information compiled by other sources.
    
        (a) In deciding an asylum application, or in deciding whether the 
    alien has a credible fear of persecution or torture pursuant to 
    Sec. 208.30 of this part, or a reasonable fear of persecution or 
    torture pursuant to Sec. 208.31, the asylum officer may rely on 
    material provided by the Department of State, the Office of 
    International Affairs, other Service offices, or other credible 
    sources, such as international organizations, private voluntary 
    agencies, news organizations, or academic institutions.
    * * * * *
        13. Section 208.13 revise paragraph (c)(1) to read as follows:
    
    
    Sec. 208.13  Establishing asylum eligibility.
    
    * * * * *
        (c) * * *
        (1) Applications filed on or after April 1, 1997. For applications 
    filed on or after April 1, 1997, an applicant shall not qualify for 
    asylum if section 208(a)(2) or 208(b)(2) of the Act applies to the 
    applicant. If the applicant is found to be ineligible for asylum under 
    either section 208(a)(2) or 208(b)(2) of the Act, the applicant shall 
    be considered for eligibility for withholding of removal under section 
    241(b)(3) of the Act. The applicant shall also be considered for 
    eligibility for withholding of removal under the Convention Against 
    Torture if the applicant requests such consideration or if the evidence 
    presented by the alien indicates that the alien may be tortured in the 
    country of removal.
        14. Section 208.16 is amended as follows:
        A. Revise the section heading;
        B. Revise paragraph (a);
        C. Revise paragraph (b) introductory test;
        D. Redesignate paragraphs (c) and (d), as (d) and (e) respectively;
        E. Add a new paragraph (c);
        F. Revise newly redesignated paragraphs (d) and (e); and
        G. Add a new paragraph (f) to read as follows:
    
    
    Sec. 208.16  Withholding of removal under section 241(b)(3)(B) of the 
    Act and withholding of removal under the Convention Against Torture.
    
        (a) Consideration of application for withholding of removal. An 
    asylum officer shall not decide whether the exclusion, deportation, or 
    removal of an alien to a country where the alien's life or freedom 
    would be threatened must be withheld, except in the case of an alien 
    who is otherwise eligible for asylum but is precluded from being 
    granted such status due solely to section 207(a)(5) of the Act. In 
    exclusion, deportation, or removal proceedings, an immigration judge 
    may adjudicate both an asylum claim and a request for withholding of 
    removal whether or not asylum is granted.
        (b) Eligibility for withholding of removal under section 241(b)(3) 
    of the Act; burden of proof. The burden of proof is on the applicant 
    for withholding of removal under section 241(b)(3) of the Act to 
    establish that his or her life or freedom would be threatened in the 
    proposed country of removal on account of race, religion, nationality, 
    membership in a particular social group, or political opinion. The 
    testimony of the applicant, if credible, may be sufficient to sustain 
    the burden
    
    [[Page 8489]]
    
    of proof without corroboration. The evidence shall be evaluated as 
    follows:
    * * * * *
        (c) Eligibility for withholding of removal under the Convention 
    Against Torture.
        (1) For purposes of regulations under Title II of the Act, 
    ``Convention Against Torture'' shall refer to the United Nations 
    Convention Against Torture and Other Cruel, Inhuman or Degrading 
    Treatment or Punishment, subject to any reservations, understandings, 
    declarations, and provisos contained in the United States Senate 
    resolution of ratification of the Convention, as implemented by section 
    2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
    L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
    contained in Sec. 208.18(a) of this part shall govern all decisions 
    made under regulations under Title II of the Act about the 
    applicability of Article 3 of the Convention Against Torture.
        (2) The burden of proof is on the applicant for withholding of 
    removal under this paragraph to establish that it is more likely than 
    not that he or she would be tortured if removed to the proposed country 
    of removal. The testimony of the applicant, if credible, may be 
    sufficient to sustain the burden of proof without corroboration.
        (3) In assessing whether it is more likely than not that an 
    applicant would be tortured in the proposed country of removal, all 
    evidence relevant to the possibility of future torture shall be 
    considered, including, but not limited to:
        (i) Evidence of past torture inflicted upon the applicant;
        (ii) Evidence that the applicant could relocate to a part of the 
    country of removal where he or she is not likely to be tortured;
        (iii) Evidence of gross, flagrant or mass violations of human 
    rights within the country of removal, where applicable; and
        (iv) Other relevant information regarding conditions in the country 
    of removal.
        (4) In considering an application for withholding of removal under 
    the Convention Against Torture, the immigration judge shall first 
    determine whether the alien is more likely than not to be tortured in 
    the country of removal. If the immigration judge determines that the 
    alien is more likely than not to be tortured in the country of removal, 
    the alien is entitled to protection under the Convention Against 
    Torture. Protection under the Convention Against Torture will be 
    granted either in the form of withholding of removal or in the form of 
    deferral of removal. An alien entitled to such protection shall be 
    granted withholding of removal unless the alien is subject to mandatory 
    denial of withholding of removal under paragraphs (d)(2) or (d)(3) of 
    this section. If an alien entitled to such protection is subject to 
    mandatory denial of withholding of removal under paragraphs (d)(2) or 
    (d)(3) of this section, the alien's removal shall be deferred under 
    Sec. 208.17(a).
        (d) Approval or denial of application. (1) General. Subject to 
    paragraphs (d)(2) and (d)(3) of this section, an application for 
    withholding of deportation or removal to a country of proposed removal 
    shall be granted if the applicant's eligibility for withholding is 
    established pursuant to paragraphs (b) or (c) of this section.
        (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
    this section, an application for withholding of removal under section 
    241(b)(3) of the Act or under the Convention Against Torture shall be 
    denied if the applicant falls within section 241(b)(3)(B) of the Act 
    or, for applications for withholding of deportation adjudicated in 
    proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
    of the Act as it appeared prior to that date. For purposes of section 
    241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
    appeared prior to April 1, 1997, an alien who has been convicted of a 
    particularly serious crime shall be considered to constitute a danger 
    to the community. If the evidence indicates the applicability of one or 
    more of the grounds for denial of withholding enumerated in the Act, 
    the applicant shall have the burden of proving by a preponderance of 
    the evidence that such grounds do not apply.
        (3) Exception to the prohibition on withholding of deportation in 
    certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
    Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
    adjudicated in proceedings commenced before April 1, 1997, and in which 
    final action had not been taken before April 24, 1996. The discretion 
    permitted by that section to override section 243(h)(2) of the Act 
    shall be exercised only in the case of an applicant convicted of an 
    aggravated felony (or felonies) where he or she was sentenced to an 
    aggregate term of imprisonment of less than 5 years and the immigration 
    judge determines on an individual basis that the crime (or crimes) of 
    which the applicant was convicted does not constitute a particularly 
    serious crime. Nevertheless, it shall be presumed that an alien 
    convicted of an aggravated felony has been convicted of a particularly 
    serious crime. Except in the cases specified in this paragraph, the 
    grounds for denial of withholding of deportation in section 243(h)(2) 
    of the Act as it appeared prior to April 1, 1997, shall be deemed to 
    comply with the Protocol Relating to the Status of Refugees, Jan. 31, 
    1967, T.I.A.S. No. 6577.
        (e) Reconsideration of discretionary denial of asylum. In the event 
    that an applicant is denied asylum solely in the exercise of 
    discretion, and the applicant is subsequently granted withholding of 
    deportation or removal under this section, thereby effectively 
    precluding admission of the applicant's spouse or minor children 
    following to join him or her, the denial of asylum shall be 
    reconsidered. Factors to be considered will include the reasons for the 
    denial and reasonable alternatives available to the applicant such as 
    reunification with his or her spouse or minor children in a third 
    country.
        (f) Removal to third country. Nothing in this section or 
    Sec. 208.17 shall prevent the Service from removing an alien to a third 
    country other than the country to which removal has been withheld or 
    deferred.
        15. Section 208.17 is revised to read as follows:
    
    
    Sec. 208.17  Deferral of removal under the Convention Against Torture.
    
        (a) Grant of deferral of removal. An alien who: has been ordered 
    removed; has been found under Sec. 208.16(c)(3) to be entitled to 
    protection under the Convention Against Torture; and is subject to the 
    provisions for mandatory denial of withholding of removal under 
    Sec. 208.16(d)(2) or (d)(3), shall be granted deferral of removal to 
    the country where he or she is more likely than not to be tortured.
        (b) Notice to Alien. (1) After an immigration judge orders an alien 
    described in paragraph (a) of this section removed, the immigration 
    judge shall inform the alien that his or her removal to the country 
    where he or she is more likely than not to be tortured shall be 
    deferred until such time as the deferral is terminated under this 
    section. The immigration judge shall inform the alien that deferral of 
    removal:
        (i) Does not confer upon the alien any lawful or permanent 
    immigration status in the United States;
        (ii) Will not necessarily result in the alien being released from 
    the custody of the Service if the alien is subject to such custody;
    
    [[Page 8490]]
    
        (iii) Is effective only until terminated; and
        (iv) Is subject to review and termination if the immigration judge 
    determines that it is not likely that the alien would be tortured in 
    the country to which removal has been deferred, or if the alien 
    requests that deferral be terminated.
        (2) The immigration judge shall also inform the alien that removal 
    has been deferred only to the country in which it has been determined 
    that the alien is likely to be tortured, and that the alien may be 
    removed at any time to another country where he or she is not likely to 
    be tortured.
        (c) Detention of an alien granted deferral of removal under this 
    section. Nothing in this section shall alter the authority of the 
    Service to detain an alien whose removal has been deferred under this 
    section and who is otherwise subject to detention. In the case of such 
    an alien, decisions about the alien's release shall be made according 
    to part 241 of this chapter.
        (d) Termination of deferral of removal.
        (1) At any time while deferral of removal is in effect, the INS 
    District Counsel for the District with jurisdiction over an alien whose 
    removal has been deferred under paragraph (a) of this section may file 
    a motion with the Immigration Court having administrative control 
    pursuant to Sec. 3.11 of this chapter to schedule a hearing to consider 
    whether deferral of removal should be terminated. The Service motion 
    shall be granted if it is accompanied by evidence that is relevant to 
    the possibility that the alien would be tortured in the country to 
    which removal has been deferred and that was not presented at the 
    previous hearing. The Service motion shall not be subject to the 
    requirements for reopening in Secs. 3.2 and 3.23 of this chapter.
        (2) The Immigration Court shall provide notice to the alien and the 
    Service of the time, place, and date of the termination hearing. Such 
    notice shall inform the alien that the alien may supplement the 
    information in his or her initial application for withholding of 
    removal under the Convention Against Torture and shall provide that the 
    alien must submit any such supplemental information within 10 calendar 
    days of service of such notice (or 13 calendar days if service of such 
    notice was by mail). At the expiration of this 10 or 13 day period, the 
    Immigration Court shall forward a copy of the original application, and 
    any supplemental information the alien or the Service has submitted, to 
    the Department of State, together with notice to the Department of 
    State of the time, place and date of the termination hearing. At its 
    option, the Department of State may provide comments on the case, 
    according to the provisions of Sec. 208.11 of this part.
        (3) The immigration judge shall conduct a hearing and make a de 
    novo determination, based on the record of proceeding and initial 
    application in addition to any new evidence submitted by the Service or 
    the alien, as to whether the alien is more likely than not to be 
    tortured in the country to which removal has been deferred. This 
    determination shall be made under the standards for eligibility set out 
    in Sec. 208.16(c). The burden is on the alien to establish that it is 
    more likely than not that he or she would be tortured in the country to 
    which removal has been deferred.
        (4) If the immigration judge determines that the alien is more 
    likely than not to be tortured in the country to which removal has been 
    deferred, the order of deferral shall remain in place. If the 
    immigration judge determines that the alien has not established that he 
    or she is more likely than not to be tortured in the country to which 
    removal has been deferred, the deferral of removal shall be terminated 
    and the alien may be removed to that country. Appeal of the immigration 
    judge's decision shall lie to the Board.
        (e) Termination at the request of the alien.
        (1) At any time while deferral of removal is in effect, the alien 
    may make a written request to the Immigration Court having 
    administrative control pursuant to Sec. 3.11 of this chapter to 
    terminate the deferral order. If satisfied on the basis of the written 
    submission that the alien's request is knowing and voluntary, the 
    immigration judge shall terminate the order of deferral and the alien 
    may be removed.
        (2) If necessary the immigration judge may calendar a hearing for 
    the sole purpose of determining whether the alien's request is knowing 
    and voluntary. If the immigration judge determines that the alien's 
    request is knowing and voluntary, the order of deferral shall be 
    terminated. If the immigration judge determines that the alien's 
    request is not knowing and voluntary, the alien's request shall not 
    serve as the basis for terminating the order of deferral.
        (f) Termination pursuant to Sec. 208.18(c). At any time while 
    deferral of removal is in effect, the Attorney General may determine 
    whether deferral should be terminated based on diplomatic assurances 
    forwarded by the Secretary of State pursuant to the procedures in 
    Sec. 208.18(c).
    
    
    Secs. 208.18 through 208.22  [Redesignated as Secs. 208.19 through 
    208.23]
    
        16. Sections 208.18 through 208.22 are redesignated as Secs. 208.19 
    through 208.23 respectively.
        17. Section 208.18 is added to read as follows:
    
    
    Sec. 208.18  Implementation of the Convention Against Torture.
    
        (a) Definitions. The definitions in this subsection incorporate the 
    definition of torture contained in Article 1 of the Convention Against 
    Torture, subject to the reservations, understandings, declarations, and 
    provisos contained in the United States Senate resolution of 
    ratification of the Convention.
        (1) Torture is defined as any act by which severe pain or 
    suffering, whether physical or mental, is intentionally inflicted on a 
    person for such purposes as obtaining from him or her or a third person 
    information or a confession, punishing him or her for an act he or she 
    or a third person has committed or is suspected of having committed, or 
    intimidating or coercing him or her or a third person, or for any 
    reason based on discrimination of any kind, when such pain or suffering 
    is inflicted by or at the instigation of or with the consent or 
    acquiescence of a public official or other person acting in an official 
    capacity.
        (2) Torture is an extreme form of cruel and inhuman treatment and 
    does not include lesser forms of cruel, inhuman or degrading treatment 
    or punishment that do not amount to torture.
        (3) Torture does not include pain or suffering arising only from, 
    inherent in or incidental to lawful sanctions. Lawful sanctions include 
    judicially imposed sanctions and other enforcement actions authorized 
    by law, including the death penalty, but do not include sanctions that 
    defeat the object and purpose of the Convention Against Torture to 
    prohibit torture.
        (4) In order to constitute torture, mental pain or suffering must 
    be prolonged mental harm caused by or resulting from:
        (i) The intentional infliction or threatened infliction of severe 
    physical pain or suffering;
        (ii) The administration or application, or threatened 
    administration or application, of mind altering substances or other 
    procedures calculated to disrupt profoundly the senses or the 
    personality;
        (iii) The threat of imminent death; or
        (iv) The threat that another person will imminently be subjected to 
    death,
    
    [[Page 8491]]
    
    severe physical pain or suffering, or the administration or application 
    of mind altering substances or other procedures calculated to disrupt 
    profoundly the sense or personality.
        (5) In order to constitute torture, an act must be specifically 
    intended to inflict severe physical or mental pain or suffering. An act 
    that results in unanticipated or unintended severity of pain and 
    suffering is not torture.
        (6) In order to constitute torture an act must be directed against 
    a person in the offender's custody or physical control.
        (7) Acquiescence of a public official requires that the public 
    official, prior to the activity constituting torture, have awareness of 
    such activity and thereafter breach his or her legal responsibility to 
    intervene to prevent such activity.
        (8) Noncompliance with applicable legal procedural standards does 
    not per se constitute torture.
        (b) Applicability of Secs. 208.16(c) and 208.17(a).
        (1) Aliens in proceedings on or after March 22, 1999. An alien who 
    is in exclusion, deportation, or removal proceedings on or after March 
    22, 1999 may apply for withholding of removal under Sec. 208.16(c), 
    and, if applicable, may be considered for deferral of removal under 
    Sec. 208.17(a).
        (2) Aliens who were ordered removed, or whose removal orders became 
    final, before March 22, 1999. An alien under a final order of 
    deportation, exclusion, or removal that became final prior to March 22, 
    1999 may move to reopen proceedings to seek protection under 
    Sec. 208.16(c). Such motions shall be governed by Secs. 3.23 and 3.2 of 
    this chapter, except that the time and numerical limitations on motions 
    to reopen shall not apply and the alien shall not be required to 
    demonstrate that the evidence sought to be offered was unavailable and 
    could not have been discovered or presented at the former hearing. The 
    motion to reopen shall not be granted unless:
        (i) The motion is filed within June 21, 1999; and
        (ii) The evidence sought to be offered establishes a prima facie 
    case that the applicant's removal must be withheld or deferred under 
    Secs. 208.16(c) or 208.17(a).
        (3) Aliens who, on March 22, 1999, have requests pending with the 
    Service for protection under Article 3 of the Convention Against 
    Torture.
        (i) Except as otherwise provided, after March 22, 1999, the Service 
    will not:
        (A) Consider, under its pre-regulatory administrative policy to 
    ensure compliance with the Convention Against Torture, whether Article 
    3 of that Convention prohibits the removal of an alien to a particular 
    country, or
        (B) Stay the removal of an alien based on a request filed with the 
    Service for protection under Article 3 of that Convention.
        (ii) For each alien who, on or before March 22, 1999, filed a 
    request with the Service for protection under Article 3 of the 
    Convention Against Torture, and whose request has not been finally 
    decided by the Service, the Service shall provide written notice that, 
    after March 22, 1999, consideration for protection under Article 3 can 
    be obtained only through the provisions of this rule.
        (A) The notice shall inform an alien who is under an order of 
    removal issued by EOIR that, in order to seek consideration of a claim 
    under Secs. 208.16(c) or 208.17(a), such an alien must file a motion to 
    reopen with the immigration court or the Board of Immigration Appeals. 
    This notice shall be accompanied by a stay of removal, effective until 
    30 days after service of the notice on the alien. A motion to reopen 
    filed under this paragraph for the limited purpose of asserting a claim 
    under Secs. 208.16(c) or 208.17(a) shall not be subject to the 
    requirements for reopening in Secs. 3.2 and 3.23 of this chapter. Such 
    a motion shall be granted if it is accompanied by a copy of the notice 
    described in paragraph (b)(3)(ii) or by other convincing evidence that 
    the alien had a request pending with the Service for protection under 
    Article 3 of the Convention Against Torture on March 22, 1999. The 
    filing of such a motion shall extend the stay of removal during the 
    pendency of the adjudication of this motion.
        (B) The notice shall inform an alien who is under an administrative 
    order of removal issued by the Service under section 238(b) of the Act 
    or an exclusion, deportation, or removal order reinstated by the 
    Service under section 241(a)(5) of the Act that the alien's claim to 
    withholding of removal under Sec. 208.16(c) or deferral of removal 
    under Sec. 208.17(a) will be considered under Sec. 208.31.
        (C) The notice shall inform an alien who is under an administrative 
    order of removal issued by the Service under section 235(c) of the Act 
    that the alien's claim to protection under the Convention Against 
    Torture will be decided by the Service as provided in Sec. 208.18(d) 
    and 235.8(b)(4) and will not be considered under the provisions of this 
    part relating to consideration or review by an immigration judge, the 
    Board of Immigration Appeals, or an asylum officer.
        (4) Aliens whose claims to protection under the Convention Against 
    Torture were finally decided by the Service prior to March 22, 1999. 
    Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3) 
    of this section do not apply to cases in which, prior to March 22, 
    1999, the Service has made a final administrative determination about 
    the applicability of Article 3 of the Convention Against Torture to the 
    case of an alien who filed a request with the Service for protection 
    under Article 3. If, prior to March 22, 1999, the Service determined 
    that an applicant cannot be removed consistent with the Convention 
    Against Torture, the alien shall be considered to have been granted 
    withholding of removal under Sec. 208.16(c), unless the alien is 
    subject to mandatory denial of withholding of removal under 
    Sec. 208.16(d)(2) or (d)(3), in which case the alien will be considered 
    to have been granted deferral of removal under 208.17(a). If, prior to 
    March 22, 1999, the Service determined that an alien can be removed 
    consistent with the Convention Against Torture, the alien will be 
    considered to have been finally denied withholding of removal under 
    Sec. 208.16(c) and deferral of removal under Sec. 208.17(a).
        (c) Diplomatic assurances against torture obtained by the Secretary 
    of State. 
        (1) The Secretary of State may forward to the Attorney General 
    assurances that the Secretary has obtained from the government of a 
    specific country that an alien would not be tortured there if the alien 
    were removed to that country.
        (2) If the Secretary of State forwards assurances described in 
    paragraph (c)(1) of this section to the Attorney General for 
    consideration by the Attorney General or her delegates under this 
    paragraph, the Attorney General shall determine, in consultation with 
    the Secretary of State, whether the assurances are sufficiently 
    reliable to allow the alien's removal to that country consistent with 
    Article 3 of the Convention Against Torture. The Attorney General's 
    authority under this paragraph may be exercised by the Deputy Attorney 
    General or by the Commissioner, Immigration and Naturalization Service, 
    but may not be further delegated.
        (3) Once assurances are provided under paragraph (c)(2) of this 
    section, the alien's claim for protection under the Convention Against 
    Torture shall not be considered further by an immigration judge, the 
    Board of Immigration Appeals, or an asylum officer.
        (d) Cases involving aliens ordered removed under section 235(c) of 
    the Act. With respect to an alien terrorist or other alien subject to 
    administrative
    
    [[Page 8492]]
    
    removal under section 235(c) of the Act who requests protection under 
    Article 3 of the Convention Against Torture, the Service will assess 
    the applicability of Article 3 through the removal process to ensure 
    that a removal order will not be executed under circumstances that 
    would violate the obligations of the United States under Article 3. In 
    such cases, the provisions of Part 208 relating to consideration or 
    review by an immigration judge, the Board of Immigration Appeals, or an 
    asylum officer shall not apply.
        (e) Judicial review of claims for protection from removal under 
    Article 3 of the Convention Against Torture.
        (1) Pursuant to the provisions of section 2242(d) of the Foreign 
    Affairs Reform and Restructuring Act of 1998, there shall be no 
    judicial appeal or review of any action, decision, or claim raised 
    under the Convention or that section, except as part of the review of a 
    final order of removal pursuant to section 242 of the Act; provided 
    however, that any appeal or petition regarding an action, decision, or 
    claim under the Convention or under section 2242 of the Foreign Affairs 
    Reform and Restructuring Act of 1998 shall not be deemed to include or 
    authorize the consideration of any administrative order or decision, or 
    portion thereof, the appeal or review of which is restricted or 
    prohibited by the Act.
        (2) Except as otherwise expressly provided, nothing in this 
    paragraph shall be construed to create a private right of action or to 
    authorize the consideration or issuance of administrative or judicial 
    relief.
        18. Newly redesignated 208.19 is revised to read as follows:
    
    
    Sec. 208.19  Determining if an asylum application is frivolous.
    
        For applications filed on or after April 1, 1997, an applicant is 
    subject to the provisions of section 208(d)(6) of the Act only if a 
    final order by an immigration judge or the Board of Immigration Appeals 
    specifically finds that the alien knowingly filed a frivolous asylum 
    application. For purposes of this section, an asylum application is 
    frivolous if any of its material elements is deliberately fabricated. 
    Such finding shall only be made if the immigration judge or the Board 
    is satisfied that the applicant, during the course of the proceedings, 
    has had sufficient opportunity to account for any discrepancies or 
    implausible aspects of the claim. For purposes of this section, a 
    finding that an alien filed a frivolous asylum application shall not 
    preclude the alien from seeking withholding of removal.
        19. Newly redesignated Sec. 208.21 is revised to read as follows:
    
    
    Sec. 208.21  Effect on exclusion, deportation, and removal proceedings.
    
        (a) An alien who has been granted asylum may not be deported or 
    removed unless his or her asylum status is terminated pursuant to 
    Sec. 208.23 of this part. 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 Sec. 208.23 or deferral is terminated pursuant to 
    Sec. 208.17(d) or (e).
        (b) When an alien's asylum status or withholding of removal or 
    deportation is terminated under this part, the Service shall initiate 
    removal proceedings under section 235 or 240 of the Act, as 
    appropriate, if the alien is not already in exclusion, deportation, or 
    removal proceedings or subject to a final order of removal. Removal 
    proceedings may also be in conjunction with a termination hearing 
    scheduled under Sec. 208.23(e).
        20. Section 208.30 is amended by:
        A. Revising paragraphs (b), (d) and (e); and by
        B. Revising paragraphs (f)(1), and (f)(2), and (f)(3), to read as 
    follows:
    
    
    Sec. 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.
    
    * * * * *
        (b) Interview and procedure. 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. 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 an understanding of the credible fear determination 
    process. The alien may be required to register his or her identity 
    electronically or through any other means designated by the Attorney 
    General. 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 such persons who may be present at the interview and on the 
    length of statement or statements made. 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 may not be 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. 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 errors therein. 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. The decision 
    shall not become final until reviewed by a supervisory asylum officer.
    * * * * *
        (d) Referral for an asylum hearing. 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. Parole of the alien may only be considered in accordance with 
    section 212(d)(5) of the Act and Sec. 212.5 of this chapter. 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 to Referral to Immigration Judge, for full consideration 
    of the asylum and withholding of removal claim in proceedings under 
    Sec. 208.2(b)(1).
        (e) Removal of aliens with no credible fear of persecution or 
    torture. 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
    
    [[Page 8493]]
    
    Request for Review by Immigration Judge, on which the alien shall 
    indicate whether he or she desires such review. If the alien is not a 
    stowaway, the officer shall also order the alien removed and issue a 
    Form I-860, Notice and Order of Expedited Removal. If the alien is a 
    stowaway and the alien does not request a review by an immigration 
    judge, the asylum officer shall also refer the alien to the district 
    director for completion of removal proceedings in accordance with 
    section 235(a)(2) of the Act.
        (f) * * *
        (1) 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.
        (2) 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 
    Sec. 208.4(b)(3)(i).
        (3) 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 Sec. 208.4(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 the 
    Service to the Board of Immigration Appeals. If and when a denial of 
    the application for asylum or 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 and when an approval of the 
    application for asylum or withholding of removal becomes final, the 
    Service shall terminate removal proceedings under section 235(a)(2) of 
    the Act.
        21. In Subpart B, Sec. 208.31 is added to read as follows:
    
    
    Sec. 208.31  Reasonable fear of persecution or torture determinations 
    involving aliens ordered removed under section 238(b) of the Act and 
    aliens whose removal is reinstated under section 241(a)(5) of the Act.
    
        (a) Jurisdiction. This section shall apply to any alien 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) Initiation of reasonable fear determination process. Upon 
    issuance of a Final Administrative Removal Order under Sec. 238.1 of 
    this chapter, or notice under Sec. 241.8(b) of this chapter that an 
    alien is subject to removal, an alien described in paragraph (a) of 
    this section shall be referred to an asylum officer for a reasonable 
    fear determination. In the absence of exceptional circumstances, this 
    determination will be conducted within 10 days of the referral.
        (c) Interview and Procedure. The asylum officer shall conduct the 
    interview in a non-adversarial manner, separate and apart from the 
    general public. At the time of the interview, the asylum officer shall 
    determine that the alien has an understanding of the reasonable fear 
    determination process. The alien may be represented by counsel or an 
    accredited representative at the interview, at no expense to the 
    Government, and may present evidence, if available, relevant to the 
    possibility of persecution or torture. The alien's representative may 
    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 the length of the 
    statement. 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 may not be a representative or employee of the applicant's 
    country or nationality, or if the applicant is stateless, the 
    applicant's country of last habitual residence. 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 errors therein. 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 
    officers, and the officer's determination of whether, in light of such 
    facts, the alien has established a reasonable fear of persecution or 
    torture. The alien shall be determined to have a reasonable fear of 
    persecution or torture if the alien establishes a reasonable 
    possibility that he or she would be persecuted on account of his or her 
    race, religion, nationality, membership in a particular social group or 
    political opinion, or a reasonable possibility that he or she would be 
    tortured in the country of removal. For purposes of the screening 
    determination, the bars to eligibility for withholding of removal under 
    section 241(b)(3)(B) of the Act shall not be considered.
        (d) Authority. Asylum officers conducting screening determinations 
    under this section shall have the authority described in Sec. 208.9(c).
        (e) Referral to Immigration Judge. If an asylum officer determines 
    that an alien described in this section has a reasonable fear of 
    persecution or torture, the officer shall so inform the alien 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 Sec. 208.16 within 10 days of the issuance of the I-
    863. Appeal of the immigration judge's decision shall lie to the Board 
    of Immigration Appeals.
        (f) Removal of aliens with no reasonable fear of persecution or 
    torture. If the asylum officer determines that the alien has not 
    established a reasonable fear of persecution or torture, the asylum 
    officer shall inform the alien in writing of the decision and shall 
    inquire whether the alien wishes to have an immigration judge review 
    the negative decision, using Form I-898, Record of Negative Reasonable 
    Fear Finding and Request for Review by Immigration Judge, on which the 
    alien shall indicate whether he or she desires such review.
        (g) Review by immigration judge. The asylum officer's negative 
    decision regarding reasonable fear shall be subject to review by an 
    immigration judge upon the alien's request. If the alien requests such 
    review, the asylum officer shall serve him or her with a Form I-863. 
    The record of 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. 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 alien does not have a reasonable
    
    [[Page 8494]]
    
    fear of persecution or torture, the case shall be returned to the 
    Service for removal of the alien. No appeal shall lie from the 
    immigration judge's decision.
        (2) If the immigration judge finds that the alien has a reasonable 
    fear of persecution or torture, the alien may submit Form I-589, 
    Application for Asylum and Withholding of Removal.
        (i) The immigration judge shall consider only the alien's 
    application for withholding of removal under Sec. 208.16 and shall 
    determine whether the alien'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 to the Board of Immigration Appeals. 
    If the alien or the Service appeals the immigration judge's decision, 
    the Board shall review only the immigration judge's decision regarding 
    the alien's eligibility for withholding or deferral of removal under 
    Sec. 208.16.
    
    PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
    
        22. The authority citation for part 235 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 
    1226, 1227, 1228, 1252; 8 CFR part 2.
    
        23. Section 235.1 is amended by revising paragraph (d)(4) to read 
    as follows:
    
    
    Sec. 235.1  Scope of examination.
    
    * * * * *
        (d) * * *
        (4) An alien stowaway is not an applicant for admission and may not 
    be admitted to the United States. A stowaway shall be removed from the 
    United States under section 235(a)(2) of the Act. The provisions of 
    section 240 of the Act are not applicable to stowaways, nor is the 
    stowaway entitled to further hearing or review of the removal, except 
    that an alien stowaway who indicates an intention to apply for asylum, 
    or expresses a fear of persecution, a fear of torture, or a fear of 
    return to the country of proposed removal shall be referred to an 
    asylum officer for a determination of credible fear of persecution or 
    torture in accordance with section 235(b)(1)(B) of the Act and 
    Sec. 208.30 of this chapter. An alien stowaway who is determined to 
    have a credible fear of persecution or torture shall have his or her 
    asylum application adjudicated in accordance with Sec. 208.2(b)(2) of 
    this chapter.
    * * * * *
        24. In section 235.3, revise paragraph (b)(4) introductory text and 
    paragraph (b)(4)(i)(D) to read as follows:
    
    
    Sec. 235.3  Inadmissible aliens and expedited removal.
    
    * * * * *
        (b) * * *
        (4) Claim of asylum or fear of persecution or torture. If an alien 
    subject to the expedited removal provisions indicates an intention to 
    apply for asylum, or expresses a fear of persecution, a fear of 
    torture, or a fear of return to his or her country, the inspecting 
    officer shall not proceed further with removal of the alien until the 
    alien has been referred for an interview by an asylum officer in 
    accordance with Sec. 208.30 of this chapter to determine if the alien 
    has a credible fear of persecution or torture. The examining 
    immigration officer shall record sufficient information in the sworn 
    statement to establish and record that the alien has indicated such 
    intention, fear, or concern, and to establish the alien's 
    inadmissibility.
        (i) * * *
        (D) The consequences of failure to establish a credible fear of 
    persecution or torture.
    * * * * *
        25. In Sec. 235.6, revise paragraphs (a)(1)(ii) and (iii), and 
    paragraph (a)(2)(i) to read as follows:
    
    
    Sec. 235.6  Referral to immigration judge.
    
        (a) * * *
        (1) * * *
        (ii) If an asylum officer determines that an alien in expedited 
    removal proceedings has a credible fear of persecution or torture and 
    refers the case to the immigration judge for consideration of the 
    application for asylum.
        (iii) If the immigration judge determines that an alien in 
    expedited removal proceedings has a credible fear of persecution or 
    torture and vacates the expedited removal order issued by the asylum 
    officer.
    * * * * *
        (2) * * *
        (i) If an asylum officer determines that an alien does not have a 
    credible fear of persecution or torture, and the alien requests a 
    review of that determination by an immigration judge; or
    * * * * *
        26. In Sec. 235.8, add a new paragraph (b)(4), to read as follows:
    
    
    Sec. 235.8  Inadmissibility on security and related grounds.
    
    * * * * *
        (b) * * *
        (4) The Service shall not execute a removal order under this 
    section under circumstances that violate section 241(b)(3) of the Act 
    or Article 3 of the Convention Against Torture. 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 shall not apply.
    * * * * *
    
    PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
    
        27. The authority citation for part 238 continues to read s 
    follows:
    
        Authority: 8 U.S.C. 1228; 8 CFR part 2.
    
        28. In Sec. 238.1, revise paragraphs (b)(2)(i) and (c)(1), and add 
    new paragraph (f)(3) to read as follows:
    
    
    Sec. 238.1  Proceeding under section 238(b) of the Act.
    
    * * * * *
        (b) * * *
        (2) Notice.
        (i) Removal proceedings under section 238(b) of the Act shall 
    commence upon personal service of the Notice of Intent upon the alien, 
    as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of this chapter. 
    The Notice of Intent shall set forth the preliminary determinations and 
    inform the alien of the Service's intent to issue a Form I-851A, Final 
    Administrative Removal Order, without a hearing before an immigration 
    judge. The Notice of Intent shall constitute the charging document. The 
    Notice of Intent shall include allegations of fact and conclusions of 
    law. It shall advise that the alien: has the privilege of being 
    represented, at no expense to the government, by counsel of the alien's 
    choosing, as long as counsel is authorized to practice in removal 
    proceedings; may request withholding of removal to a particular country 
    if he or she fears persecution or torture in that country; may inspect 
    the evidence supporting the Notice of Intent; may rebut the charges 
    within 10 calendar days after service of such Notice (or 13 calendar 
    days if service of the Notice was by mail).
    * * * * *
        (c) * * *
        (1) Time for response. The alien will have 10 calendar days from 
    service of the Notice of Intent or 13 calendar days if service is by 
    mail, to file a response to the Notice of Intent. In the response, the 
    alien may: designate his or her choice of country for removal; submit a 
    written response rebutting the allegations supporting the charge and/or 
    requesting the opportunity to review the Government's evidence; and/or 
    submit a statement indicating an intention to request withholding of 
    removal under 8 CFR 208.16 of this chapter, and/or request in writing 
    an extension of time
    
    [[Page 8495]]
    
    for response, stating the specific reasons why such an extension is 
    necessary.
    * * * * *
        (f) * * *
        (3) Withholding of removal. If the alien has requested withholding 
    of removal under Sec. 208.16 of this chapter, the deciding officer 
    shall, upon issuance of a Final Administrative Removal Order, 
    immediately refer the alien's case to an asylum officer to conduct a 
    reasonable fear determination in accordance with Sec. 208.31 of this 
    chapter.
    * * * * *
    
    PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
    UNITED STATES
    
        29. The authority citation for part 240 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 
    1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111 
    Stat. 2160, 2193); 8 CFR part 2.
    
        30. In Sec. 240.1, revise paragraph (a) to read as follows:
    
    
    Sec. 240.1  Immigration Judges.
    
        (a) Authority. (1) In any removal proceeding pursuant to section 
    240 of the Act, the immigration judge shall have the authority to:
        (i) Determine removability pursuant to section 240(a)(1) of the 
    Act; to make decisions, including orders of removal as provided by 
    section 240(c)(1)(A) of the Act;
        (ii) To determine applications under sections 208, 212(a)(2)(F), 
    212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g), 
    212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H), 
    237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act and 
    section 202 of Pub. L. 105-100;
        (iii) To order withholding of removal pursuant to section 241(b)(3) 
    of the Act and pursuant to the Convention Against Torture; and
        (iv) To take any other action consistent with applicable law and 
    regulations as may be appropriate.
        (2) In determining cases referred for further inquiry, immigration 
    judges shall have the powers and authority conferred upon them by the 
    Act and this chapter. Subject to any specific limitation prescribed by 
    the Act and this chapter, immigration judges shall also exercise the 
    discretion and authority conferred upon the Attorney General by the Act 
    as is appropriate and necessary for the disposition of such cases. An 
    immigration judge may certify his or her decision in any case under 
    section 240 of the Act to the Board of Immigration Appeals when it 
    involves an unusually complex or novel question of law or fact. Nothing 
    contained in this part shall be construed to diminish the authority 
    conferred on immigration judges under sections 101(b)(4) and 103 of the 
    Act.
    * * * * *
    
    PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
    
        31. The authority citation for part 241 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and 
    1330; 8 CFR part 2.
    
        32. In Sec. 241.8, revise paragraph (d) to read as follows:
    
    
    Sec. 241.8  Reinstatement of removal orders.
    
    * * * * *
        (d) Exception for withholding of removal. If an alien whose prior 
    order of removal has been reinstated under this section expresses a 
    fear of returning to the country designated in that order, the alien 
    shall be immediately referred to an asylum officer for an interview to 
    determine whether the alien has a reasonable fear of persecution or 
    torture pursuant to Sec. 208.31 of this chapter.
    * * * * *
        33. In Sec. 241.11, revise paragraph (d)(1) to read as follows:
    
    
    Sec. 241.11  Detention and removal of stowaways.
    
    * * * * *
        (d) Stowaways claiming asylum--
        (1) Referral for credible fear determination. A stowaway who 
    indicates an intention to apply for asylum or a fear of persecution or 
    torture upon return to his or her native country or country of last 
    habitual residence (if not a national of any country) shall be removed 
    from the vessel or aircraft of arrival in accordance with Sec. 208.5(b) 
    of this chapter. The immigration officer shall refer the alien to an 
    asylum officer for a determination of credible fear in accordance with 
    section 235(b)(1)(B) of the Act and Sec. 208.30 of this chapter. The 
    stowaway shall be detained in the custody of the Service pending the 
    credible fear determination and any review thereof. Parole of such 
    alien, in accordance with section 212(d)(5) of the Act, may be 
    permitted only when the Attorney General determines, in the exercise of 
    discretion, that parole is required to meet a medical emergency or is 
    necessary for a legitimate law enforcement objective. A stowaway who 
    has established a credible fear of persecution or torture in accordance 
    with Sec. 208.30 of this chapter may be detained or paroled pursuant to 
    Sec. 212.5 of this chapter during any consideration of the asylum 
    application. In determining whether to detain or parole the alien, the 
    Service shall consider the likelihood that the alien will abscond or 
    pose a security risk.
    * * * * *
    
    PART 253--PAROLE OF ALIEN CREWMEN
    
        34. The authority citation in part 253 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.
    
        35. In Sec. 253.1, revise paragraph (f) to read as follows:
    
    
    Sec. 253.1  Parole.
    
    * * * * *
        (f) Crewman, stowaway, or alien removable under section 235(c) 
    alleging persecution or torture. Any alien crewman, stowaway, or alien 
    removable under section 235(c) of the Act who alleges that he or she 
    cannot return to his or her country of nationality or last habitual 
    residence (if not a national of any country) because of fear of 
    persecution in that country on account of race, religion, nationality, 
    membership in a particular social group, or political opinion, or 
    because of fear of torture is eligible to apply for asylum or 
    withholding of removal under 8 CFR part 208. Service officers shall 
    take particular care to ensure that the provisions of Sec. 208.5(b) of 
    this chapter regarding special duties toward aliens aboard certain 
    vessels are closely followed.
    * * * * *
        36. Add a new part 507 to read as follows:
    
    [[Page 8496]]
    
    PART 507--ALIEN TERRORIST REMOVAL PROCEDURES
    
    
    Sec. 507.1  Eligibility for Protection under the Convention Against 
    Torture.
    
        A removal order under Title V of the Act shall not be executed in 
    circumstances that would violate Article 3 of the United Nations 
    Convention Against Torture and Other Cruel, Inhuman or Degrading 
    Treatment or Punishment, subject to any reservations, understandings, 
    declarations, and provisos contained in the United States Senate 
    resolution of ratification of the Convention, as implemented by section 
    2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. 
    L. 105-277. Convention-based claims by aliens subject to removal under 
    this Title shall be determined by the Attorney General, in consultation 
    with the Secretary of State.
    
        Authority: Pub. L. 105-277, 112 Stat. 2681.
    
        Dated: February 13, 1999.
    Janet Reno,
    Attorney General.
    [FR Doc. 99-4140 Filed 2-18-99; 8:45 am]
    BILLING CODE 4410-10-P
    
    
    

Document Information

Published:
02/19/1999
Department:
Immigration and Naturalization Service
Entry Type:
Rule
Action:
Interim rule with request for comments.
Document Number:
99-4140
Pages:
8478-8496 (19 pages)
Docket Numbers:
INS No. 1976-99, AG Order No. 2207-99
RINs:
1115-AF39: Regulations Concerning the Convention Against Torture
RIN Links:
https://www.federalregister.gov/regulations/1115-AF39/regulations-concerning-the-convention-against-torture
PDF File:
99-4140.pdf
CFR: (39)
8 CFR 208.17(a)
8 CFR 208.2(b)(1)
8 CFR 208.4(b)(3)(i)
8 CFR 208.16(c)
8 CFR 208.3(c)(3)
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