[Federal Register Volume 59, Number 232 (Monday, December 5, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29724]
[[Page Unknown]]
[Federal Register: December 5, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 208, 236, 242, 274a, and 299
[INS No. 1651-93; AG Order No. 1937-94]
RIN 1115-AD64
Rules and Procedures for Adjudication of Applications for Asylum
or Withholding of Deportation and for Employment Authorization
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule streamlines the adjudication of asylum
applications submitted to the Immigration and Naturalization Service
(INS). Asylum officers who adjudicate the applications of persons who
have no legal immigration status will no longer prepare detailed
denials. Instead, in almost all cases, asylum officers will grant
meritorious applications and refer applications that they do not grant
to immigration judges, who will adjudicate the claims in either
exclusion or deportation proceedings. The rule restricts employment
authorization to applicants for asylum or withholding of deportation
whose claims either have been granted or remain pending after more than
150 days, a period which would not run until the alien has filed a
complete application and which would not include delays sought or
caused by the applicant. This rule conforms existing regulations to the
current practice of receiving applications for asylum and withholding
of deportation at the four INS Service Centers. The rule also updates
the regulations by removing references to the Asylum Policy and Review
Unit.
EFFECTIVE DATE: This rule is effective January 4, 1995.
FOR FURTHER INFORMATION CONTACT: Christine Davidson, Senior Policy
Analyst, Asylum Division, Immigration and Naturalization Service, 425 I
Street NW., ULLICO 3rd Floor, Washington, DC 20536, (202) 633-4389, or
Gerald S. Hurwitz, Counsel to the Director, Executive Office for
Immigration Review, 2400 Skyline Tower, 5107 Leesburg Pike, Falls
Church, VA 22041, (703) 305-0470.
SUPPLEMENTARY INFORMATION: The Department of Justice published a
proposed rule on March 30, 1994 (59 FR 14779) as part of a
comprehensive initiative to streamline the process for adjudication of
applications for asylum and withholding of deportation. Other aspects
of this initiative have increased the government's ability to
adjudicate such applications efficiently.
The proposed rule was designed to streamline the asylum
adjudications process by making several principal reforms. First, the
role and functions of asylum officers would change to allow the
officers to address a greater volume of applications and to concentrate
their efforts on approving meritorious claims. Asylum officers would no
longer deny applications from persons who are excludable or deportable,
but instead would refer such cases directly to an immigration judge for
adjudication. The original application also would be forwarded to the
immigration judge to form part of the record of proceedings. Second,
the proposed rule would have instituted a fee for filing asylum
applications. Third, an asylum applicant would not be eligible to apply
for employment authorization based on his or her asylum application
until 150 days after the date on which the asylum application is filed.
The Immigration and Naturalization Service (INS) and the Executive
Office for Immigration Review (EOIR) would strive to complete the
adjudication of asylum applications, through the decision of an
immigration judge, within this 150-day period. Persons granted asylum
would become eligible immediately to apply for and receive employment
authorization. Persons whose cases were not decided by an immigration
judge within the 150-day period would be eligible to apply for
employment authorization. The INS would have 30 days to adjudicate such
applications. Persons denied asylum by an immigration judge either
within the 150-day period or prior to the issuance of employment
authorization by the INS would not be eligible to receive employment
authorization.
Beyond these principal reforms, the proposed rule would have:
eliminated the requirement that asylum officers and immigration judges
await the receipt of advisory opinions from the Department of State;
curtailed the authority of asylum officers to grant or deny withholding
of deportation under section 243(h) of the Immigration and Nationality
Act, 8 U.S.C. 1253(h) (INA or Act); and specified that information
provided in asylum applications could be used as a basis for an Order
to Show Cause against the applicant under 8 CFR 242.1. The proposed
rule also would have made several technical and conforming amendments.
The Department of Justice received 345 comments in response to this
proposed rule. Many were submitted as a result of consultations between
various non-governmental organizations. The following sections
summarize the comments, set forth the response of the Department of
Justice, and explain the revisions adopted.
The comments primarily focused upon the following topics:
conformity with the Administrative Procedure Act (APA); constitutional
questions; the proposed $130 filing fee; retroactivity of the proposed
rule; service of notice; employment authorization; the discretionary
nature of asylum interviews; interpreters; the ``safe third country''
ground of denial for applicants otherwise eligible for asylum; the
elimination of the Notice of Intent to Deny (NOID) and the applicant's
opportunity to rebut a NOID; and the definition and treatment of
persons convicted of an aggravated felony. In addition, there were
general comments regarding United States immigration policy.
Many comments agreed that asylum reforms and a solution to the
backlog problem are needed. Some stated, however, that even if the
proposed rule met the objectives of the Immigration and Naturalization
Service, it would do so at the expense of bona fide asylum applicants
and would compromise fairness and humanitarian principles. Many
comments stated that the proposed rule would not stop frivolous claims
or reduce the backlog.
1. Administrative Procedure Act Issues
Comment: Several comments stated that the proposed rule violated
the requirements of the Administrative Procedure Act (APA) because the
rule included changes to regulations affecting the Executive Office for
Immigration Review (EOIR), and the INS has no authority to promulgate
regulations on behalf of EOIR. Sections alleged to fall within EOIR's
jurisdiction were 208.1, 208.2, 208.3, 208.12, 208.14, 208.18, 236.3,
and 242.17. The comments suggested that the Department should republish
the sections of the proposed rule that pertain to EOIR proceedings with
instructions that comments should be directed to the EOIR.
Response and Disposition: The proposed rule was published by the
Department of Justice. The Attorney General has authority to promulgate
regulations on behalf of all Department of Justice agencies, including
INS and EOIR. Officials of EOIR participated in drafting all relevant
provisions of the proposed rule. Upon publication of the rule, the
name, address, and phone number of the Counsel to the Director of EOIR
were included as a point of contact for further information. Since this
rule chiefly concerns the process for adjudicating asylum applications
that are received in the first instance by the INS, public comments
were directed to the INS; however, a copy of every comment was
forwarded by the INS to EOIR. Specific suggestions were made by EOIR
and have been incorporated into this final rule. Accordingly, this rule
has been issued in compliance with the notice and comment requirements
of the APA.
2. Constitutional Issues
Comment: Several comments stated that the proposed rule would
violate the Constitution by infringing upon liberty and property
interests protected under the due process clauses of the Fifth and
Fourteenth Amendments. The comments identified the following as
violations of due process: (a) not every asylum applicant would receive
an asylum officer interview, which is essential for an asylum officer
genuinely to evaluate a case; (b) those denied an interview would be
deprived of the opportunity to have their claim decided in a non-
adversarial setting and instead would be required to present their
asylum claim to an immigration judge during an adversarial proceeding;
(c) an applicant not granted asylum would be denied the opportunity,
available under the current procedures, to rebut the asylum officer's
initial determination to deny the claim (Notice of Intent to Deny); and
(d) due to elimination of the Notice of Intent to Deny (NOID), the
applicant would not have access to the information that the asylum
officer relied upon in deciding not to grant the claim. The comments
stated that such infringement could not be justified by the
Government's interest in improving the efficiency or financial
viability of the asylum process.
Comments stated that procedures similar to those in the proposed
rule have been invalidated by the federal courts. They pointed to
Mendez v. Thornburgh, No. 88-04995 (C.D. Cal., Order filed May 26,
1989, modified June 23, 1989), in which the court preliminarily
enjoined an expedited adjudication process put into place in Los
Angeles and stated that applicants were entitled to a re-interview.
Comments also noted American Baptist Churches v. Thornburgh, 760 F.
Supp. 796 (N.D. Cal. 1991) (hereinafter ``ABC''), in which the
Government agreed to re-interview Salvadoran asylum-seekers. Comments
suggested that agency efforts to expedite the asylum process through
measures compromising due process and equal protection have been
enjoined as a ``pattern and practice violation'' in a number of other
cases.
Response and Disposition: The proposed rule fully recognized the
due process rights of asylum applicants. By preserving asylum and
withholding of deportation proceedings before an immigration judge, the
rule provides due process: (a) the applicant is permitted to testify
and submit all relevant evidence in support of his or her claim; (b)
the applicant may be represented by an attorney; (c) the applicant is
entitled to cross-examine all witnesses presented by the Government and
to rebut any documentary evidence submitted by the Government; and (d)
the applicant has the right to administrative appeal and judicial
review of an adverse decision. In addition, as discussed below, the
final rule amends the proposed rule by providing that the INS will
conduct interviews for all asylum applicants within its jurisdiction
who have filed a complete application. All who apply for asylum before
an asylum officer will thus have an opportunity to present their claim
in a nonadversarial proceeding. Furthermore, neither the settlement
agreement in Mendez nor the settlement agreement in ABC suggests that
INS procedures were invalid. The rule does not single out any class of
applicants for distinct treatment and all asylum applicants will be
treated in the same manner without regard to nationality or country of
origin. Asylum officers will interview all applicants who appear for
their scheduled interviews before determining whether to grant, deny,
or refer their applications.
3. Federalism Issues
Comments: Several comments argued that the proposed rule required a
``cost benefit assessment'' under Executive Order 12866 because it
constitutes a ``significant regulatory action.'' The comments also
suggested that the Department was required to perform a ``federalism
assessment'' under Executive Order 12612, since portions of the
regulation could affect state governments' public welfare programs. The
comments argued that the inability of asylum applicants to work for 180
days and during the appeal process could lead the applicants and their
families to rely on state public assistance that they might not turn to
if authorized to work. This, the comments stated, constitutes a
``substantial direct effect on the States,'' triggering the need for a
federalism assessment.
Response and Disposition: Executive Order 12866 requires an agency
to submit a draft proposed rule and an assessment of the potential
costs and benefits of the regulation to the Office of Management and
Budget (OMB) for review if the agency or OMB considers the rule ``to be
a significant regulatory action'' under section 3(f) of that Order. The
Department of Justice considered the proposed rule to be a significant
regulatory action and complied with the Executive Order by submitting a
copy of the draft proposed rule and a summary of the reasons for the
regulation to the OMB. See 59 FR 14784 (March 30, 1994).
Executive Order 12612 requires a federalism assessment if a
proposed regulation has ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
distribution of power and responsibilities among the various levels of
government.'' Whether policies have federalism implications depends
principally on whether the policies would preempt state law or
interfere with an area of regulation that is usually reserved to the
states. If an agency determines that a policy has federalism
implications, the federalism assessment must consider the costs or
burdens the regulations would impose on the states and resources
available to the states to offset the added costs or burdens.
The Department and OMB determined that Executive Order 12612 did
not require a federalism assessment of this rule. Regulations regarding
immigration and alienage are an exclusive federal concern, and thus do
not preempt state law or impinge upon areas of state regulation.
Furthermore, Congress has enacted specific legislation governing the
employment of aliens which authorized the promulgation of regulations
on the subject. The rule also would not have a substantial direct
effect on the states. While it is possible that asylum applicants not
eligible to apply for work authorization might seek state benefits, the
nature and degree of any such claims are at best an indirect effect of
the adoption of new asylum procedures. Many asylum seekers have entered
the United States illegally and are not eligible for most state
benefits; and some state benefits, such as education, are available
regardless of whether an applicant has work authorization. Meanwhile,
the overall asylum reform effort should reduce the pressure on state
public assistance benefits by more promptly granting asylum and work
authorization to those deserving of these benefits and more promptly
removing from the United States those who are not. Accordingly, there
is no need for a federalism assessment under Executive Order 12612.
4. Filing Fee for Asylum Applications (8 CFR 103.7(b)(1))
Proposed Rule: The proposed rule would have amended 8 CFR
103.7(b)(1) to provide that a fee of $130 be charged for an application
for asylum or withholding of deportation. Section 208.4(d) would have
been amended to provide that an application be accompanied by such fee
or by an application for waiver of fee in accordance with 8 CFR
103.7(c)(1).
Comments: Comments supporting fees argued that asylum applicants
should have to pay a filing fee if they can afford to do so, that the
general public does not benefit from services provided by the INS, and
that taxpayers should not have to bear the entire cost.
Most comments, however, urged either elimination or reduction of
the fee. It was argued that the proposed fee would unfairly punish
persons seeking protection from persecution, treat asylum as a
privilege limited to those who could afford it, discourage bona fide
applications, and create a burden for the INS in administering the fee
waiver provisions. Several comments claimed that the fee would be
unfair in light of the proposed rule's limitation on an asylum
applicant's access to employment authorization pending the adjudication
of the asylum claim. Other comments stated that the amount of the fee
was excessive: even if an applicant could not qualify for a fee waiver,
he or she might still be unable to apply for asylum due to the overall
cost, including those for an attorney, counselor, and interpreter, to
complete the asylum application process. These comments unfavorably
compared the proposed fee to those charged by The Netherlands ($25.00)
and Australia ($30.00), the only countries that now charge an
application fee, and suggested that a fee at this level would be more
appropriate.
Several comments also argued that charging a fee would not be
economically efficient. Collecting the fee and administering a waiver
system would create significant administrative costs. Adjudicating
waivers, aside from being time-consuming, would increase personnel
costs and paperwork, would add an additional step to the adjudication
process, and would expose the INS to litigation over contested waiver
decisions. If, as anticipated, a large number of applicants applied for
and obtained fee waivers, the costs in administering the fee and the
waiver might not even offset the relatively low amount of fees
collected.
Several comments also questioned whether the INS could fairly
administer a fee waiver process. They alleged that the INS previously
has used improper criteria in adjudicating applications for waivers of
fees for Temporary Protected Status and for renewal of employment
authorization documents. These comments urged that the process be
fairly implemented by removing irrelevant discretionary factors from
the waiver procedure and focusing solely on the applicant's ability to
pay the fee. Some argued that the INS should propose, publish, and
elicit public comments on uniform guidelines for adjudicating fee
waivers for all INS applications. Others argued that the INS should
create a fee waiver process for asylum applicants under a separate
regulation, independent of 8 CFR 103.7(c). Some proposed that asylum
applicants filing through an approved voluntary agency or an accredited
representative should receive automatic fee waivers. Many comments
suggested that waiver guidelines should incorporate the poverty
guidelines of the Department of Health and Human Services. Some
comments suggested that a time limit be set within which the INS must
make waiver determinations and, if the decision is not made within that
time, that the waiver be granted. Comments also suggested that the fee-
paying or waiver status of the applicant not be disclosed to the asylum
officer adjudicating the claim. One comment suggested that the filing
of a fraudulent fee waiver be used as evidence weighing against the
applicant's credibility on the underlying asylum claim.
Several comments stated that under section 286(m) of the Act, 8
U.S.C. 1356(m), the INS may not impose a fee for asylum applications.
This section provides that the INS may set its fee for providing
adjudication and naturalization services at a level that will ensure
the full recovery of costs for those services, including those provided
without charge to asylum applicants or other immigrants. Several
comments also stated that a specific fee for asylum applications is
unnecessary because after the implementation of asylum reform, the
surcharge added to INS fees in conformance with section 286(m) should
generate sufficient revenues to cover the costs of the asylum program.
A number of comments made recommendations for changing the fee
proposal. One comment proposed setting the fee at $615, which is the
estimated total cost of adjudicating an asylum application. Under this
proposal, if the applicant could not pay the fee at the time of filing,
then he or she should pay half of the fee at the time of filing and pay
the balance within 90 days or at the time of the interview, whichever
is sooner. One comment suggested loaning the entire cost of asylum
processing ($615) to the applicant. The loan could be paid back in one
to three years as the person begins to work.
Some comments suggested that the fee be deferred so that a person
granted asylum pay the fee when he or she applies for adjustment of
status or for any other subsequent benefit under the Act. For those
whose applications are denied and who subsequently seek another
immigration benefit, such as adjustment of status upon marriage or
reentry after deportation, the asylum fee would be collected at the
time the applicant submits the respective application. The comments
argued that applicants will be in a better position to pay the fee at
the time of these subsequent applications.
One comment suggested that the fee not be charged to those who file
their asylum application before an immigration judge in exclusion or
deportation proceedings. This comment noted that most of the alleged
abuse of the asylum system occurs in applications filed with asylum
officers and that it is unfair to charge a fee to those who are
defending themselves in removal proceedings.
Response and Disposition: The comments received in response to the
fee proposal have been carefully considered. It has been concluded that
imposition of the fee at this time would likely impose administrative
burdens that would not be offset by the anticipated receipts from the
fee. Accordingly, the provisions relating to the fee are not included
as part of the final rule. Adjudication of asylum applications before
the INS will continue to be funded by way of a statutorily authorized
surcharge assessed on applications for other immigration benefits.
Additional funding provided by the 1995 appropriations for Asylum
Reform will provide resources for INS and EOIR. As part of an ongoing
comprehensive economic review of its entire fee structure, the INS will
examine alternative sources of funding for asylum adjudications,
including the possibility of a user fee.
5. General (8 CFR 208.1)
a. Effective Date (8 CFR 208.1(a))
Proposed Rule: The proposed rule would have amended 8 CFR 208.1(a)
to state that Part 208 applies to all adjudications of asylum
applications, whether by an asylum officer or by an immigration judge,
on or after the effective date of the final rule.
Comments: Many comments urged INS not to apply some or all of the
proposed amendments to Part 208 to applications filed prior to the
effective date of the final rule. These comments suggested that a
``retroactive'' application of the rule could result in different
treatment for asylum applicants who filed at the same time, but prior
to the effective date of the final rule--namely: claims filed and
adjudicated before the effective date of the final rule will have been
processed under the prior practice of a mandatory asylum officer
interview and opportunity to rebut a NOID; NOIDs are eliminated for
claims filed but not adjudicated by the effective date and, under the
proposed rule, such claims could be referred immediately to an
immigration judge without an interview by an asylum officer. Some
comments also noted that making the rule applicable to applications
that have already been filed would have no effect in discouraging the
prospective filing of non-meritorious applications.
A number of comments argued that the proposed rule is invalid under
the Supreme Court's decision in Bowen v. Georgetown University
Hospital, 488 U.S. 204 (1988), which held that retroactive rulemaking
is improper under the APA absent express statutory authority, because
Congress has not given the Attorney General retroactive rulemaking
authority through the Immigration and Nationality Act.
Finally, one comment argued that applying the proposed rule to
``all adjudications'' creates conflicts with judicial decisions and
settlement agreements in litigation concerning asylum procedures.
Response and Disposition: These comments were carefully considered,
but it was concluded that the effective date provision does not run
afoul of Bowen v. Georgetown University Hospital. The rule is not
``retroactive'' within the meaning of that case because it does not
alter the past legal consequences of past actions; rather, it affects
only procedures that are to be followed in cases that are yet to be
adjudicated.
The effective date provision applies only to adjudications of
applications for asylum or withholding of deportation under 8 CFR Part
208. The rule therefore will not apply to the amended provisions of 8
CFR 242.17(e) regarding the use of information provided on an asylum
application as the basis for establishing the alienage or deportability
of an asylum applicant, or to the related provision at 8 CFR
208.3(c)(2). These amended provisions will apply only to applications
received by the INS after the effective date of the final rule.
Similarly, the effective date provisions do not affect 8 CFR
274a.12(c)(8). Thus, asylum applicants who have filed their
applications prior to the effective date of the final rule will not be
subject to the final rule's provisions governing initial applications
for employment authorization. Sections 208.7(a) and 242.17(e) of the
final rule will be amended to clarify this point. However, the rule
governing extensions of employment authorization in Sec. 208.7(d) shall
apply to all asylum applicants upon the effective date of this rule.
Furthermore, the final rule cannot and does not intend to alter any
obligations imposed on the INS or asylum applicants by judicial
decisions or settlement agreements in cases such as ABC or Mendez.
Finally, the rule will not apply to cases pending in district courts,
courts of appeals, or the Supreme Court.
The other aspects of the rule, while they would affect pending
applications, do not affect the past legal consequences of past
actions, but merely affect procedures to be applied in the future. The
main procedural differences under this rule are elimination of the NOID
and written denial decisions by asylum officers. These changes,
however, do not alter the legal circumstances or rights of any person
with a pending application. No person eligible for asylum under
existing regulations will be rendered ineligible due to any change made
by this rule. Asylum claims will continue to be adjudicated under the
same legal standard.
Limiting application of the final rule to applications filed after
the effective date would severely impair efforts at asylum reform
because it would require two parallel systems of adjudication: one for
cases filed before the effective date, one for cases filed afterwards.
Neither the Supreme Court's decision in Bowen nor any section of the
APA requires such a result. The rule achieves the goal of streamlining
the asylum process while maintaining the same legal standards used to
adjudicate each asylum application in a timely manner. This provision
of the proposed rule will be adopted in the final rule with amendments
for clarity.
b. Qualifications and Training of Asylum Officers (8 CFR 208.1(b))
Comments: Two comments suggested that both immigration judges and
asylum officers receive special training in international human rights
law, conditions in countries of origin, and other relevant national and
international refugee laws. One comment observed that the current rule
that provides for extensive training of asylum officers has improved
their decision-making, and reasoned that the same requirement would
have a similar effect on the decisions of immigration judges.
Response and Disposition: The Department provides extensive initial
training and continuing education to immigration judges that includes
training related to asylum adjudications. The Department will continue
to work to improve such training programs. However, the Department does
not consider it necessary that there be specific regulatory
requirements regarding the training of immigration judges.
6. Form of Application (Section 208.3)
a. Required Copies of Forms (8 CFR 208.3(a))
Proposed Rule: Section 208.3(a) of the proposed rule stated that
the applicant file three copies of any supporting documentation and one
completed fingerprint card (Form FD-258) for all individuals ages 14
years and older who are included on the application.
Comments: One comment stated that it is not clear whether two or
three copies of the application are required, and another questioned
the reason for requiring three copies of supporting documentation.
Response and Disposition: The final rule has been clarified to make
clear that the I-589 and supporting documents, plus two copies, are
required. Three copies of supporting documentation are required because
one copy is retained by the INS in the applicant's alien registration
file, one copy is forwarded to the Department of State under 8 CFR
208.4(a), and, if the application is not granted by the asylum officer,
a copy of the application with all supporting documents is forwarded to
the immigration judge under the referral process described in 8 CFR
208.14(b). This provision of the proposed rule has been amended to
clarify that the original and two copies of the application are
required.
b. Use of Information in Application (8 CFR 208.3(c)(2))
Proposed Rule: Section 208.3(c)(2) of the proposed rule stated that
information provided in an asylum application may be used to satisfy
the Government's burden of proof in establishing deportability under
section 242 of the Act, 8 U.S.C. 1252.
Comment: One comment asserted that the proposed rule should state
that the information in the asylum application may not satisfy the
clear, convincing, and unequivocal standard of evidence for
deportability.
Response and Disposition: The Department believes that an alien's
written admission of alienage and of having no lawful status in the
United States is sufficient to satisfy the standard of evidence for
establishing deportability. Consequently, the new asylum application
will contain a clear warning that the application may be used to
establish deportability. This part of the final rule will not be
applied retroactively and will affect only those persons who make an
application on the new form after the effective date of this rule.
Accordingly, this provision of the proposed rule will be adopted
without amendment in the final rule.
c. Delivery by Mail (8 CFR 208.3(c)(3))
Proposed Rule: Section 208.3(c)(3) of the proposed rule stated that
mailing to the address provided on the application shall constitute
adequate service of all notices and other documents, including any
charging documents (Forms I-221 and I-122).
Comments: Several comments argued that delivery by regular mail of
an Order to Show Cause (OSC) violates section 242B(a)(1) of the Act, 8
U.S.C. 1252b(a)(1), which requires that OSCs be presented by personal
service or certified mail. Other comments argued that the OSC should be
served by certified mail to ensure that it is actually received and
that the rule does not take into consideration that an applicant may
move after his or her application has been filed.
Three comments also addressed the issue of service to legal
representatives. One comment stated that if the applicant is
represented by an attorney, service should be made on the applicant's
legal representative, rather than on the applicant. Another comment
recommended that mailing documents to the applicant's attorney or
representative also should constitute adequate service. Finally, a
comment asserted that EOIR should be informed whether an applicant was
represented by an attorney at the Asylum Office.
Response and Disposition: This provision is not intended to--and
legally could not--alter the certified mail delivery requirements in
section 242B of the Act, 8 U.S.C. 1252b. In cases where personal
delivery of the OSC is not possible, OSCs will continue to be served by
certified mail. This provision is adopted with an appropriate
clarifying amendment in the final rule.
The recommendations regarding service upon attorneys or registered
representatives have been considered carefully. The Department believes
that the rules for service of an OSC must ensure that the person
subject to proceedings has actually received the document. The
Department also is concerned that an attorney retained for the asylum
process might not remain as the applicant's attorney in exclusion or
deportation proceedings. As this final rule is implemented, the INS
will work with attorneys and advocacy organizations to consider these
and other proposals relating to the service of notices and other
documents, but the suggestion of having charging documents mailed to an
applicant's attorney or representative constitute adequate service has
not been adopted.
d. Signatures under Penalty of Perjury (8 CFR 208.3(c)(4) and 8 CFR
208.3(d))
Proposed Rule: Sections 208.3(c)(4) and 208.3(d) of the proposed
rule stated that the applicant and anyone other than an immediate
relative of the applicant who prepares or assists the applicant in
preparing the asylum application must sign the application subject to
penalty of perjury. A person other than an immediate relative who
prepares or assists the applicant in preparing the application also
must provide his or her full mailing address. In addition, if the
applicant later claims ignorance of the contents of the application,
his or her signature may provide the basis for denial of the claim.
Comments: Several comments suggested that any preparer, including
an immediate relative, sign the asylum application under penalty of
perjury and provide an address. One comment argued that exempting
family members from signing the I-589 weakens the regulation because
unscrupulous preparers, to remain undetected, will not sign the
application.
Many other comments criticized this provision as unduly punitive
because many asylum applicants have limited education, are unfamiliar
with United States laws, and rely on those who claim to be qualified to
assist them with their asylum applications. Such applicants should not
be subject to prosecution if there are errors in the application. Some
comments asserted that this provision will prevent applicants from
obtaining help in completing their applications. In addition, one
comment claimed that those assisting applicants might fear reprisal
from their own governments if their role in assisting asylum applicants
were known. Another stated that organizations may not wish to sign the
forms because of their unwillingness to incur potential liability for
an inaccurate representation not known to them. One comment argued that
subjecting persons other than the applicant to penalty of perjury
places an undue burden on attorneys and translators who are assisting
applicants but can do little to verify the veracity of the applicants'
statements.
The comments made several recommendations directed at protecting
applicants and the individuals and organizations who assist applicants.
One comment recommended that only the preparers, not the applicants,
should sign the asylum application subject to a penalty of perjury
because genuine asylum-seekers, particularly those that do not speak
English, may be unaware of the actions of an unprincipled preparer. One
comment advocated that those who prepare asylum applications without
charging the applicant a fee should not be required to sign the form.
Another comment suggested that if an improperly prepared asylum
application is not signed by the preparer, the asylum officer should
ask the applicant who prepared the application. With the applicant's
permission, the asylum officer then could relay the information about
the preparer to the appropriate local INS enforcement division.
Finally, two comments asserted that the signature requirement is
too broad. The comments claimed that the signature requirement in the
proposed rule is more sweeping than the requirement on the form itself,
and that it fails to specify the degree of assistance that triggers the
necessity to sign the form.
Response and Disposition: The requirement that the applicant and
outside preparers sign the Form I-589 under penalty of perjury is
necessary and appropriate for several reasons. An asylum applicant is
seeking an important benefit and should be required to provide only
truthful information to the Government. The evidentiary rules for
adjudicating asylum applications treat the credible testimony of the
applicant as sufficient to meet the applicant's burden of proof and
thus there should be appropriate consequences for making false
statements. Those who assist in preparing applications also should bear
these consequences if they have knowingly included false information on
the application.
The fact that a signature is made under penalty of perjury does
not, of course, alter the Government's burden to establish the elements
of the crime in the event of prosecution. Many of the objections raised
in the comments would apply to situations where perjury could not be
proved. Nevertheless, those applying for asylum and those who assist
others in doing so should have the same obligation to make truthful
statements as persons who make other applications to the Government.
These provisions of the proposed rule will be adopted in the final
rule, with amendments for clarity and to eliminate unnecessary words.
e. Incomplete Applications (8 CFR 208.3(c)(5) and 8 CFR 208.3(c)(6))
Proposed Rule: Section 208.3(c)(5) of the proposed rule stated that
an application that is incomplete or lacks a response to each of the
enumerated questions may be referred to an immigration judge for
adjudication or may be denied by the asylum officer. Section
208.3(c)(6) defined an incomplete application as one that does not
include a response to each of the questions contained in the Form I-
589, that is unsigned, that is unaccompanied by the required materials
specified in paragraph (a) of this section, or that is unaccompanied by
the required fee or application for fee waiver.
Comments: Numerous comments criticized these provisions for
establishing overly harsh penalties and for not including a
sufficiently clear definition of what constitutes an incomplete
application. The comments claimed that an application may be denied or
referred because minor or irrelevant questions were not answered. The
comments suggested that the applicant be given a chance to remedy such
an omission. The comments also questioned whether an application would
be deemed incomplete if certain questions were answered but the
responses lacked substance.
Several comments agreed that incomplete applications should not be
adjudicated and recommended amendments to the rule. One comment
suggested that this provision be moved to a new subsection and labelled
``Summary Disposition--Action on Incomplete Forms.'' Another comment
suggested that the term ``incomplete'' be deleted from the final rule
in order to restrict the rule to allow denial or referral only when the
applicant has been completely unresponsive to a question. A third
comment advocated that incomplete applications be returned to the
applicant, rather than denying them or referring them to an immigration
judge.
Response and Disposition: The final rule retains the current
mandate that all asylum applicants who appear as scheduled will receive
an interview with an asylum officer.
Accordingly, incomplete applications will not be denied or referred
to an immigration judge without an interview. These sections of the
proposed rule are therefore adopted with appropriate amendments in the
final rule. The final rule provides that an incomplete application
shall be returned by mailing it to an applicant within 30 days of
receipt of the application by the INS; and that if an application has
not been returned within this 30-day period, the application shall be
deemed complete. Under section 208.7 of the final rule, if the
application is incomplete, the 150-day period will not begin until the
applicant submits a complete application. For clarity, the last
sentence of Sec. 208.3(c)(6) of the proposed rule, defining an
incomplete application, is moved to paragraph Sec. 208.3(c)(5) of the
final rule. This definition also has been clarified to state that an
application that is not returned to an applicant within 30 days of
having been received by the INS shall be deemed complete.
7. Employment Authorization (Section 208.7)
Proposed Rule: The proposed rule would have amended the regulations
governing eligibility of asylum applicants for employment authorization
in the following manner: An application for employment authorization
(Form I-765) could be submitted to the INS no earlier than 150 days
after the date on which a complete application for asylum was filed. If
the asylum application was denied by an immigration judge or an asylum
officer within the 150-day period, the applicant would not be eligible
to apply for employment authorization. After 150 days, the INS would
have 30 days from the date of the filing of the application for
employment authorization to adjudicate the application for employment
authorization. If the INS failed to adjudicate the application for
employment authorization within the 30-day period, the applicant would
be eligible for interim employment authorization. If the application
for asylum was denied by an immigration judge or an asylum officer
within this 30-day period, the application for employment authorization
would be denied. The 150- and 180-day periods would be extended by any
delay sought or caused by the applicant. The proposed rule also would
have prohibited an applicant for asylum who has been convicted of an
aggravated felony from applying for or being granted employment
authorization. If an applicant who has been convicted of an aggravated
felony has previously been granted employment authorization, the
employment authorization would be revoked. Finally, an applicant who
inexcusably failed to appear for a scheduled interview before an asylum
officer or a hearing before the immigration judge would not be granted
employment authorization. The proposed rule also would have amended the
current rule by requiring a fee for the filing of an initial
application for employment authorization.
Comments: A few comments supported these proposals as an
appropriate balance between meeting the needs of asylum applicants
while discouraging frivolous claims. A greater number of comments
criticized these provisions for imposing economic hardship on asylum
applicants. The comments stated that many applicants arrive in the
United States with few belongings, no money, and no network of family
or friends to provide them assistance. Furthermore, the United States
does not provide public assistance benefits to most people who apply
for asylum. As a result, asylum applicants would be forced to work
illegally in jobs where they would be underpaid and treated poorly, but
would have no means of redress because of the fear of reprisals. Other
comments claimed that the rule would violate the right to work of
asylum applicants and is inconsistent with the 1951 Convention Relating
to the Status of Refugees, 189 U.N.T.S. 150, 19 U.S.T. 6260, T.I.A.S.
6577, and the 1967 Protocol Relating to the Status of Refugees, 606
U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S. 6577, because it creates an
obstacle to the filing of an asylum application. Comments also stated
that the rule would deny due process to asylum applicants because they
would be unable to afford attorneys to represent them. Numerous other
comments claimed that the rule would impose new burdens on social
service organizations and state and local governments because asylum
applicants unable to work will turn to these sources for assistance.
One comment specifically observed that a greater number of Cubans
and Haitians will apply for cash and medical benefits under the Refugee
Education Assistance Act of 1980, 8 U.S.C. 1522 note, and suggested
that Cubans and Haitians be exempt from the employment authorization
limitations under 8 CFR 208.7(a). Another comment contended that
applicants paroled into the United States to file asylum claims will
lose their work authorization under the proposed rule, which would be
unjust because many such parolees have been recognized by the INS to
have credible asylum claims.
Some comments indicated that the proposed rule is confusing because
it does not specify that persons granted asylum are immediately
eligible for work authorization and does not provide sufficient detail
on how the 150-day waiting period will be measured. Other comments
expressed doubt that asylum applicants would actually receive work
authorization 180 days after the filing of their applications because
of difficulty and confusion in applying the 150-day waiting period.
Many comments advocated eliminating the waiting period and
maintaining the current rule, which allows immediate applications for
employment authorization and issuance within 90 days. Some comments
suggested a decrease in the waiting period with one specifically
stating that employment authorization valid for 3 to 6 months should be
granted at the time of the interview or within 90 days, except for
cases deemed ``frivolous'' or ``manifestly unfounded.'' Another comment
advised providing exceptions to the waiting period by granting
employment authorization immediately or within 90 days to applicants
who demonstrate hardship or economic need (such as those with no
relatives in the United States or who have small children). Another
comment advocated issuing employment authorization at the time of the
interview or hearing because it would ensure that applicants appear for
their interview or hearing and allow the applicant to receive
employment authorization sooner.
A number of comments suggested clarification of the 150-day waiting
period. One comment noted that the 150-day period should begin when the
application is received by the INS, rather than when the application is
actually processed. Some comments argued that the INS should notify the
applicant in writing of the date of receipt and whether the application
is complete. Other comments criticized the provision for an extension
of the 150-day period in the case of delays caused by the applicant,
and one comment recommended that this aspect be eliminated. Another
comment suggested, however, that the applicant be notified when
additional information is required and the waiting period be extended
only if the additional information is not provided. Other comments
asked for clarification as to what actions serve to extend the waiting
period, and one comment requested that a mechanism to contest the
extension be provided.
Finally, some comments opposed the inability of the applicant to
obtain work authorization during the appeal period if his or her claim
is denied by the immigration judge within the 180-day period. One
comment noted that the applicant's access to counsel will be
jeopardized on appeal while another observed that negative decisions
frequently are reversed. A comment stated that such an applicant may
face the choice of either starving or returning to a country where he
or she faces persecution. Comments also stated that a decrease in
appeals will hinder proper interpretation of the law by preventing the
presentation of novel legal issues. These comments suggested that
employment authorization be granted to applicants during the appeal
process or that an exception for economic necessity be provided.
Response and Disposition: The Department strongly believes that the
asylum process must be separated from the employment authorization
process. This rule will discourage applicants from filing meritless
claims solely as a means to obtain employment authorization. More
important, the rule provides legitimate refugees with lawful employment
authorization. When the system is fully operational, asylum officers
are expected to grant or refer affirmative claims within about 60 days.
Thus, persons with bona fide asylum claims would get work authorization
in approximately the same time as the current 90-day period for
adjudicating work authorization applications. All applicants could have
work authorization after 180 days, unless their claims have been denied
by an immigration judge. Under existing authority, work authorization
may be granted to persons who are paroled into the United States by the
INS. 8 CFR 274a.12(c)(11). This provision, which can be employed in the
case of asylum applicants seeking admission at a port of entry to the
United States and paroled into the country, is not changed in this
rule.
The comments presented on this issue have been carefully
considered. Particular attention was given to the recommendations that
alternative means be established to adjudicate employment authorization
on the basis of the merits of the claim or on the economic situation of
the asylum applicant. Either alternative would invite a large number of
applications, thus diverting resources and undermining the goals of
asylum reform. Using a merit-based standard would require the INS to
adjudicate asylum applications for work authorization eligibility
either through a paper evaluation or a separate work authorization
interview. A need-based standard would impose a similar administrative
burden. Given that the vast majority of those deserving asylum will
promptly receive their decisions and, hence, their employment
authorization, this burden would not be justified by the results
achieved.
The Department also considered the claim that asylum applicants
will disregard the law and work without authorization. While this is
possible, it also is true that unlawful employment is a phenomenon not
limited to asylum applicants, but is found among many categories of
persons who have illegally entered or remained in the United States.
The Department does not believe that the solution to this problem is to
loosen eligibility standards for employment authorization. This is
particularly so because of the evidence that many persons apply for
asylum primarily as a means of being authorized to work. These rules
will discourage applications filed for such reasons and thus will
enable the INS to more promptly grant asylum--and provide work
authorization--to those who merit this relief.
These provisions of the proposed rule also are in keeping with
United States obligations under international law. Article 17 of the
1951 Convention provides that a ``[c]ontracting State shall accord to
refugees lawfully staying in their territory the most favourable
treatment accorded to nationals of a foreign country in the same
circumstances, as regards the right to engage in wage-earning
employment.'' Under this rule, refugees--i.e., persons granted asylum--
are immediately eligible to apply for and receive employment
authorization. Article 17 imposes no further obligations on access to
employment authorization for those who are applying for asylum.
The Department also has carefully considered the comments directed
to the impact that new rules on employment authorization would have
upon the states. These concerns are addressed under heading 3.
Consistent with its decision to remove the requirement for an
asylum application fee, the Department will not adopt in this final
rule a requirement that asylum applicants pay a fee to accompany an
initial application for employment authorization under 8 CFR 274a.13.
The fee requirement will be retained for applications to renew
employment authorization.
The provisions of the proposed rule are adopted with several
amendments in the final rule. Sections 208.3(c)(5) and 208.7(a)(1) of
the final rule will be amended to provide that the 150-day period shall
commence upon the receipt by the INS of a complete application for
asylum. The filing of an incomplete application shall not commence the
150-day period provided that the INS has returned the application by
mailing it within 30 days in accordance with 8 CFR 208.3(c)(5). Section
208.7(a)(4) also will be amended to specify that an applicant's failure
without good cause to appear for an interview under section 208.9(a)
precludes the applicant from receiving employment authorization under
section 274a.12(c)(8). Failure to appear without good cause to receive
the decision of the asylum officer under section 208.9(d) shall be
treated as delay caused by the applicant and shall toll the 150-day
period. A new paragraph 208.7(a)(5) will be added to specify that the
new rules governing eligibility for employment authorization do not
apply to persons whose asylum applications have been filed prior to
January 4, 1995. Finally, section 208.2(b) will be amended to state
that an immigration judge may permit a referred applicant to file an
amended application, but that any delay caused by such a request shall
extend the period within which the applicant may not apply for
employment authorization.
8. Renewal of Employment Authorization (Section 208.7(d))
Proposed Rule: Section 208.7(d) would be amended to require that in
order for employment authorization to be renewed before its expiration,
an application must be received by the INS at least 90 days before the
employment authorization expires. Under current regulations,
applications for renewal must be received at least 60 days prior to
expiration.
Comment: Several comments criticized this proposal for placing an
unfair and unnecessary burden upon applicants for renewal. The comments
stated that the INS should be able to process renewals within 60 days.
Some comments stated that renewal of work authorization should be
assigned to INS District Offices, and not to the INS Service Centers,
because the District Offices are more likely to have access to
information regarding the alien's status. One comment approved of the
practice of charging a fee for renewal of work authorization.
Response and Disposition: Under 8 CFR 274a.13(d), the INS district
director shall adjudicate the application for renewal of employment
authorization within 90 days of receipt.
The lack of uniformity between the current 60-day rule for filing
renewal applications and the 90-day rule for adjudicating such
applications led to disagreements between applicants and the INS. The
INS believes that fewer disputes will result if these periods are
uniform. The INS agrees that many such applications can be adjudicated
in significantly less than 90 days, and will continue to work for
improvements in this area. Due to the workloads involved in processing
a large volume of employment authorization requests, however, the
Department believes that it would not be prudent to establish a shorter
mandatory period for the adjudication of such requests. Accordingly,
these provisions of the proposed rule will be adopted without amendment
in the final rule.
9. Interview and Procedure (Section 208.9(a))
a. Mandatory vs. Discretionary Interview
Proposed Rule: Current regulations require that for each
application for asylum within the jurisdiction of an asylum officer, an
interview shall be conducted by that officer. The proposed rule would
provide that interviews on asylum applications are discretionary.
Comments: Many comments opposed making interviews discretionary.
Some rested their objections in part on constitutional grounds; these
concerns have been addressed above in subheading 2. The comments also
expressed concern that direct referral of claims without an interview
to an immigration judge is inappropriate because the written
application often is not a reliable indicator of the strength or
weakness of the applicant's claim. The comments argued that a system of
discretionary interviews and direct referrals would be unfair because
many applicants are unable fully to articulate their claim in writing
due to language barriers, lack of understanding of the laws governing
asylum, or innocent reliance on unscrupulous paid preparers of asylum
applications. These comments argued as well that the asylum interview
is of significant benefit because it allows the applicant to present
the facts of the case in a nonadversarial manner and compels the asylum
officer to consider the full range of facts, including all relevant
country conditions, before making a determination in the case. While
many comments acknowledged the advantages of adversarial proceedings
before an immigration judge in eliciting the facts of an asylum claim,
the commentators generally felt that the value of an asylum interview
should be given greater weight.
Several comments stated that the proposed rule would be contrary to
the legislative intent behind section 208 of the Act, 8 U.S.C. 1158,
because Congress contemplated that asylum determinations would be made
independent of exclusion and deportation proceedings.
Several comments claimed that the system of discretionary referrals
would actually make the process less efficient because applicants would
be forced to present their claims in a longer, more formal hearing
before an immigration judge. The comments claimed that this would
increase overall expense to the Government, exacerbate the problem of
delay in asylum adjudications, and undermine the intent of the proposed
rule to streamline the asylum system.
The vast majority of the comments directed to this question stated
that asylum interviews should be mandatory. However, a large number of
these comments also suggested that, as an alternative, direct referral
without interview should take place only in circumstances where the
written application indicates that the claim is frivolous or manifestly
unfounded. Some comments criticized the proposed rule for making it
appear that the granting of interviews to asylum applicants will be the
exception, not the rule. The comments also stated that applicants
deserve to know the standard under which the INS will determine whether
or not to grant an interview.
Response and Disposition: The Department has carefully considered
these comments and determined that the goal of streamlining asylum
adjudications can be met without changing the present rule that
mandates the opportunity for an interview of each asylum applicant.
Accordingly, the present rule is retained and there is no provision for
immediate referral of cases, without an interview, to an immigration
judge. The rule is clarified to state that an interview will be granted
for applications that are complete within the meaning of
Sec. 208.3(c)(5). Section 208.10 also is amended to provide that the
failure without good cause of an applicant to appear for a scheduled
interview under Sec. 208.9(a) may be deemed to constitute a waiver of
the right to an interview with an asylum officer or, in the case of an
applicant who is a stowaway, alien crewman, alien temporarily
excludable under section 235(c) of the Act, 8 U.S.C. 1225, or in
current lawful immigration status, may be deemed to constitute an
abandonment of the application.
b. Procedural Issues
Proposed Rule: The proposed rule would have amended 8 CFR 208.9 (b)
and (c) to require the applicant to provide full identifying
information at the time of the application. Section 208.9(d) would have
been amended to require that, at the conclusion of the interview, the
applicant be notified that he or she must appear in person to receive
the written decision of the asylum officer. A new section 208.9(g)
would have been added to specify rules regarding the use of
interpreters during interviews.
Comment: One comment stated that the proposed rule is unclear on
whether witnesses could testify at the interview because section
208.9(b) of the rule states that the applicant ``may . . . submit
affidavits of witnesses'' while section 208.9(g) refers to live
witnesses.
Response and Disposition: An asylum applicant may present live
witness testimony at the time of his or her interview. In the final
rule, section 208.9(b) is amended to clarify this point.
Comment: Several comments criticized the requirement in the
proposed rule that the applicant be informed that he or she must appear
in person to acknowledge receipt of the written decision of the asylum
officer. The comments stated that this requirement would be inefficient
and would result in applicants having to make an unnecessary return
trip to the Asylum Office, where they may have to wait for a long
period of time. A comment also questioned whether those who are
interviewed in ``circuit ride'' locations would be able to go to those
locations, or would be required to travel to the more distant Asylum
Office with jurisdiction over their cases. Several comments suggested
that written decisions be served by certified mail or that mail service
be used in cases where the applicant has an attorney or registered
representative.
Response and Disposition: In order to streamline asylum
adjudications, there must be a reliable system to accomplish and verify
service of the decision to grant, refer, or deny the claim and, if
applicable, service of the charging document. The INS experience with
certified mail under the current rule demonstrates that this may not be
the most effective method to meet this goal. If the applicant has
provided an invalid address or has moved without notifying the INS,
delivery most often will not be accomplished. In addition, postal
delays and difficulties in processing return receipt cards detract from
the INS's ability to confirm timely delivery. It may be somewhat
inconvenient to make a return trip to the Asylum Office; however, under
this system, the applicant will receive his or her decision promptly.
If the decision is to grant the claim, the applicant will be able to
apply more quickly for employment authorization and other benefits. If
the decision is to refer the claim, the applicant will receive a
charging document that will state the date and time of required
appearance in immigration court, and will be able to plan for that
proceeding. Finally, both the asylum adjudications and removal
proceedings systems will benefit if there are fewer disputes regarding
the service of decisions and charging documents. In cases where the
applicant has failed to appear at the appointed time to receive his or
her decision, certified mail will be used in lieu of personal service
to deliver the decision.
The INS has carefully considered whether the rule should be amended
to permit the use of mail service in the case of applicants who have an
attorney or registered representative. The Department has declined to
adopt that proposal at this time, chiefly because of concerns that an
attorney retained for the asylum application process may not remain as
the applicant's attorney in exclusion or deportation proceedings.
However, as this final rule is implemented, the INS will work with
attorneys and advocacy organizations to consider this and other
proposals relating to service of decisions.
These provisions of the proposed rule have been adopted with an
amendment to clarify that an applicant's failure to appear to receive
and acknowledge receipt of the decision of the asylum officer shall be
treated as delay caused by the applicant for purposes of 8 CFR
208.7(a)(3) and shall extend the period within which the applicant may
not apply for employment authorization by the number of days until the
applicant does appear to receive the decision or until the applicant
appears before an immigration judge in response to the issuance of a
charging document under 8 CFR 208.14(b).
Comment: Several comments addressed the proposed rule's provisions
governing the use of interpreters (8 CFR 208.9(g)). Some comments
criticized the requirement, also contained in current regulations, that
the applicant who does not wish to proceed in English provide an
interpreter for the asylum interview. These comments stated that this
will impose a financial burden on applicants and that it may be
difficult for applicants to find competent interpreters, particularly
for certain languages. Other comments recommended that the rule be
amended to specifically permit immediate family members to serve as
interpreters. Some comments suggested that the rule be more lenient in
cases where the applicant has failed to provide an interpreter. One
comment stated that the proposed rule should be amended to prohibit
representatives, as well as attorneys and immediate family members,
from serving as interpreters.
Response and Disposition: The requirement that asylum applicants
wishing to proceed in a language other than English provide an
interpreter is currently enforced by the INS as an operations policy.
Any other rule would impose an undue financial burden on the
Government. Currently, asylum applicants may use a family member,
friend, or volunteer from the community, or may hire a professional
interpreter. The proposed rule was intended to adopt this policy into
the regulations. The recommendation that a registered representative,
as well as an attorney, be prohibited from serving as an interpreter
will be adopted in the final rule; an advocate should not be called
upon to serve two distinct roles in the course of a proceeding.
However, the final rule does not prohibit an employee of the
applicant's attorney or registered representative, such as a paralegal,
from serving as the applicant's interpreter. Finally, while an
applicant's failure without good cause to provide an interpreter may be
considered as a failure without good cause to appear for the asylum
interview itself, the asylum officer has discretion in applying this
sanction. If the failure to provide an interpreter is justified by good
cause, the INS will not consider the applicant to have waived his or
her right to an interview or to have abandoned his or her asylum
application.
These provisions of the proposed rule are retained with appropriate
amendments in the final rule.
10. Failure to Appear (Section 208.10)
New Amendment: The proposed rule would have made no amendment to 8
CFR 208.10. However, in the course of reviewing the comments regarding
the interview of asylum applicants, it was concluded that this section
should be clarified to modify the provision that an applicant who fails
to appear for a scheduled interview may be deemed to have abandoned his
or her application for asylum. The final rule will modify this section
to provide that failure without good cause to appear for a scheduled
interview may be deemed to constitute a waiver of the right to an
interview or, in the case of an alien crewman, stowaway, person
excludable under section 235(c) of the Act, 8 U.S.C. 1225, or person in
current lawful immigration status, may be deemed to constitute an
abandonment of the application. The final rule also will amend 8 CFR
208.14(b) to provide that an applicant who is deemed to have waived the
right to his or her asylum interview in accordance with this section
may be referred to an immigration judge for adjudication in the course
of exclusion or deportation proceedings.
11. Comments From the Department of State (Section 208.11)
Proposed Rule: As amended by the proposed rule, 8 CFR 208.11 would
retain the practice of submitting asylum applications to the Department
of State but would eliminate the mandatory period during which asylum
officers and immigration judges must await the receipt of State
Department comments in individual cases. The State Department could
provide such comments, but the intent of the rule is to change the role
of the State Department to one of providing detailed and current
country conditions information.
Comments: Comments supported this change. Several comments stated
that applicants should have access to the country conditions
information provided by the State Department and relied upon by INS,
and that applicants should continue to receive copies of case-specific
comments from the State Department. Some comments stated that the
applicant should be given 30 days to respond to any such comments from
the State Department.
Response and Disposition: Under section 208.11(c) of the rule,
applicants will receive copies of case-specific comments provided by
the Department of State. Immigration judges will have discretion to
grant an appropriate time period, if necessary, for rebuttal. A uniform
and mandatory waiting period will not be beneficial because it would
add unnecessary delay to the process. Copies of generic country
conditions information relied upon by immigration judges also will
become part of the record available to the applicant. The INS currently
is considering means by which country conditions information used by
asylum officers may be made more generally available and will continue
to work with attorneys, advocacy groups, and other interested members
of the public in accomplishing this goal. This provision of the
proposed rule is adopted in the final rule with amendments to clarify
the text and eliminate unnecessary words.
12. Elimination of Notice of Intent to Deny (Section 208.12(a))
Proposed Rule: The proposed rule, section 208.12(a), would have
eliminated the requirement that an asylum officer provide the applicant
an opportunity to inspect, explain, or rebut the material relied upon
to find that the applicant's claim has not been approved. This is
commonly referred to as a Notice of Intent to Deny, or NOID.
Comments: Many comments criticized this proposal, arguing that the
NOID requirement protects the rights of applicants and promotes more
accurate decisions by asylum officers. Comments characterized the NOID
as useful to clear up misunderstandings or incorrect applications of
the law before cases reach the immigration court. As discussed
previously, some comments also felt that the proposed rule would
violate the due process rights of applicants by denying them an
opportunity to give a meaningful response to material other than the
interview and the application relied upon by the asylum officer.
Other comments praised elimination of the NOID requirement as a
means to expedite the asylum process. Some comments proposed that a
balance be struck by maintaining the NOID requirement but reducing the
time period in which the applicant can respond.
Response and Disposition: The Department gives high priority to all
efforts to improve the fairness, quality, and accuracy of decisions
made by asylum officers and immigration judges. However, the
requirements in 8 CFR 208.12(a) are not necessary to meet these goals,
and modification of this section is pivotal to the streamlining of the
asylum process. Applicants who are not granted asylum by the asylum
officer will have a full opportunity to present their claim to an
immigration judge, with all the procedural protections of a full
adversarial proceeding. This includes, of course, the right to examine
and rebut all evidence and materials that are introduced in opposition
to the asylum claim. The NOID system is, at best, an imperfect
approximation of this hearing process and one that adds unnecessary
time and expense to the process, thus making it more difficult to
adjudicate claims in a timely manner. The Department has considered
seriously the objections stated to this proposal but believes that the
interests of all asylum applicants will best be served by eliminating
the NOID requirement. Accordingly, this provision of the proposed rule
is retained without amendment in the final rule. The Department will,
however, continue to issue Notices of Intent to Deny in the cases of
persons whose asylum applications can be denied by asylum officers,
including stowaways, crewmen, and persons with a lawful immigration
status.
13. Referrals to an Immigration Judge (Section 208.14(b))
Proposed Rule: The proposed rule would have added a new paragraph
208.14(b) to state that if an asylum officer does not grant an
application, and the applicant appears to be deportable or excludable,
the asylum officer shall refer the application to an immigration judge
for adjudication in exclusion or deportation proceedings. The asylum
officer would no longer deny the application in writing, as required
under current regulations. The asylum officer would issue a written
denial in cases where the applicant has a current legal immigration
status not derived from his or her asylum application.
Comments: Several comments stated that the rule should be amended
to state specific guidelines that asylum officers must follow in
deciding whether to refer cases to an immigration judge. According to
these comments, it is unclear whether the application will be judged
under the standard of well-founded fear of persecution set forth in
section 101(a)(42) of the Act, 8 U.S.C. Sec. 1101(a)(42), or under some
other discretionary standard. Some comments also stated that asylum
officers may rely on improper factors such as instinct, prejudice, or
misinformation in making referral decisions. The comments suggested
that a written record of the reasons for referral, provided to the
applicant, would be fairer to applicants and would increase confidence
in the referral system.
Several comments also criticized the provision for automatic
referral of the asylum application to an immigration judge. The
comments argued that in the course of exclusion or deportation
proceedings, the asylum application is defensive in nature, and the
applicant should be able to decide whether to use the application in
the proceedings. The comments also stated that initial asylum
applications are often erroneous or incomplete, not because the
applicant intends to commit fraud, but because the applicant does not
know English and has used a preparer who did not complete the
application correctly. The comments suggested that the applicant
referred to an immigration judge be able to submit an entirely new
application.
Response and Disposition: The proposed rule does not change the
legal standard for granting asylum set forth in sections 101(a)(42) and
208(a) of the Act, 8 U.S.C. 1101(a)(42) and 1158(a), and 8 CFR 208.13
and 208.14: asylum officers will continue to abide by this standard.
Those who have met the burden of proof to establish that they are
refugees will continue to be granted asylum. Those who have not met
their burden of proof will be referred to an immigration judge or, in
the case of those with a current lawful immigration status, will be
issued a denial letter. The rule should create no reason for concern
that factors other than those set forth in the law and regulations will
influence the decisions of asylum officers. Accordingly, there is no
reason to provide any additional regulatory guidelines for asylum
officer decisions.
We have declined to adopt the recommendation that the applications
of referred applicants not be forwarded to an immigration judge. A
referred applicant may decline to seek asylum in the course of
exclusion or deportation proceedings and, if so, can simply move to
withdraw the application. However, if the applicant desires to proceed
with the application, he or she should be held accountable for the
information that has been provided on the initial application. During
the immigration court proceedings, the applicant can provide additional
information and explain any errors or inconsistencies in the
application. In addition, section 208.2(b) of this rule has been
amended to provide that an immigration judge, as a matter of
discretion, may permit the applicant to amend the I-589 prior to the
hearing on the merits.
The proposed rule would have provided that the INS inform an
applicant by letter of the decision to refer his or her case,
accompanied by a charging document. The INS will consider the
recommendation that the letter state briefly the reasons why the
application has not been granted. However, the INS believes that a
regulatory standard mandating the contents of the referral letter is
not necessary to preserve the procedural rights of applicants and may
impede the flexibility that will be necessary to ensure that applicants
receive their decisions in a prompt manner. The INS will continue to
work with attorneys, advocacy groups, and other interested members of
the public on this question.
This provision of the proposed rule will be adopted in the final
rule with one substantive amendment. The amendment will specify that an
application may be referred to an immigration judge for adjudication in
exclusion or deportation proceedings if, in accordance with 8 CFR
208.10, the applicant is deemed to have waived his or her right to an
interview on the application under 8 CFR 208.9(a). In addition, this
paragraph has been reorganized and sub-divided for clarity.
14. Eligibility Restrictions for Persons Convicted of Aggravated
Felonies (Sections 208.14(d)(4) and 208.16(c)(2)(ii))
Proposed Rule: The proposed rule would have added a new paragraph
208.14(d)(4) that would bar individuals who have been convicted of an
aggravated felony from applying for or being granted asylum. Proposed 8
CFR 208.16(c)(2)(ii) would bar such individuals from applying for or
being granted withholding of deportation.
Comments: Several comments proposed that this portion of the rule
be amended. Some comments stated that the effect of the rule is too
harsh and that those convicted of an aggravated felony should be able
to present their asylum claims. The INS should then balance the
likelihood and seriousness of persecution against the gravity of the
crime committed by the individual. These comments stated that this
approach is supported by the United Nations High Commissioner for
Refugees. Some comments also argued that the rule should apply only to
convictions entered after November 19, 1988, the date of enactment of
the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, which added section
101(a)(43) to the Act to define ``aggravated felony.'' See 8 U.S.C.
1101(a)(43). These comments argued that application of the aggravated
felony ban to convictions entered on or before November 19, 1988, is
inconsistent with the holding in Landgraf v. USI Film Products, 114 S.
Ct. 1483 (1994).
Several comments also criticized the proposed rule for barring
persons with aggravated felony convictions from eligibility for
withholding of deportation. The comments argued that the preclusion in
section 243(h)(2)(B) of the Act, 8 U.S.C. 1253(h)(2)(B), which bars a
grant of withholding to a person who, ``having been convicted of a
particularly serious crime, constitutes a danger to the community,''
requires a two-pronged finding: that the alien was convicted of a
particularly serious crime and that the alien constitutes a danger to
the community. The comments stated that the INS should not presume that
every aggravated felony is a particularly serious crime or that every
person convicted of such a crime is also a danger to the community.
Response and Disposition: These provisions of the rule are mandated
by the congressional enactments regarding limitations on the granting
of relief to criminal aliens. The definition of ``aggravated felony''
in section 101(a)(43) of the Act was added by section 7342 of the Anti-
Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181, 4469 (November
18, 1988). The Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978
(November 29, 1990) (1990 Act) defined additional crimes as aggravated
felonies and added further disabling provisions. E.g., 1990 Act
Sec. 501, 104 Stat. at 5048. In addition, section 515(a)(1) of the 1990
Act created section 208(d) of the Act, 8 U.S.C. 1158(d), which states
that an alien convicted of an aggravated felony ``may not apply for or
be granted asylum.'' 104 Stat. at 5053. Section 515(a)(2) of the 1990
Act amended section 243(h)(2) of the Act, 8 USC 1253(h)(2), to require
that, for purposes of the statutory bar to withholding of deportation,
``an alien who has been convicted of an aggravated felony shall be
considered to have committed a particularly serious crime.'' 104 Stat.
at 5053.
Neither section 208(d) nor section 243(h)(2) of the Act provides
for a ``balancing test'' to be employed in the case of a person
convicted of an aggravated felony. Such a person is barred from relief
without regard to the merits of his or her claim. Inclusion of
aggravated felonies as ``particularly serious crimes'' also is
consistent with the long-standing administrative interpretation of the
Act that crimes such as armed robbery, robbery, burglary, embezzlement,
and possession for sale of cocaine and heroin are ``particularly
serious crimes.'' Moreover, the Attorney General, through the Board of
Immigration Appeals, consistently has held that section 243(h)(2)(B)
compels the finding that an alien constitutes a danger to the community
if he or she has been convicted of a particularly serious crime. Matter
of A-A-, Interim Dec. 3176 (BIA 1992); Matter of K-, Interim Dec. 3163
(BIA 1991); Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified on
other grounds, Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988). Federal
courts have affirmed this position. See, e.g., Crespo-Gomez v. Richard,
780 F.2d 932 (11th Cir. 1986); Ramirez-Ramos v. INS, 814 F.2d 1394 (9th
Cir. 1987).
To the extent these provisions have a retroactive effect, such
effect clearly was intended by Congress and thus is permissible.
Landgraf, 114 S.Ct. at 1496. In enacting section 7342 of the Anti-Drug
Abuse Act of 1988, Congress defined certain crimes as aggravated
felonies without regard to the date of conviction. Section 515(b) of
the 1990 Act was amended by the Miscellaneous and Technical Immigration
and Naturalization Amendments of 1991, Pub. L. 102-232, December 12,
1991, 105 Stat. 1733, 1752, to mandate that the statutory bar in
section 208(d) of the Act applies to convictions entered before, on, or
after November 29, 1990, the effective date of the 1990 Act, and
applies to all applications for asylum made on or after the same date.
Congress also expressly limited the application of certain disabling
provisions (e.g., the deportation ground under section 241(a)(4) of the
Act and the ineligibility for voluntary departure under section 244(e)
of the Act), to an alien ``convicted, on or after the date of enactment
of [the 1988] Act, of an aggravated felony.'' Pub. L. 100-690
Secs. 7343(c) and 7344(b), 102 Stat. at 4470, 4471. If the term
``aggravated felony'' were to be interpreted to apply only to
convictions occurring on or after November 18, 1988, then the
prospective language that placed limits on the retroactivity of
specific sections of the 1988 Act would be redundant, in violation of
the maxim that no provision of a law should be construed to render a
word or clause surplus. Matter of A-A-, Interim Dec. 3176 (BIA 1992) at
8-10 and n.13.
It is clear that Congress intended to prohibit an alien who has
been convicted of an aggravated felony from applying for or being
granted asylum or withholding of deportation. Therefore, these
provisions of the proposed rule are adopted without amendment in the
final rule.
15. Discretionary Denial of Asylum (Section 208.14(e))
Proposed Rule: The proposed rule would have added a new section
208.14(e) to provide that an applicant who is otherwise eligible may be
denied asylum in the discretion of the Attorney General if the
applicant can and will be deported or returned to a country in which
the applicant would not face harm or persecution and would have access
to a full and fair asylum procedure, in accordance with bilateral or
multilateral arrangements with the United States governing such
matters.
Comments: A few comments endorsed this proposal. One comment noted
that the proposed rule would prevent ``country shopping'' and encourage
potential refugees to seek protection in the first country of refuge.
Another comment agreed that the proposed rule will be beneficial,
provided that a treaty or other formal agreement designate the ``safe
country.'' Another comment recommended that the proposed rule be
amended to prohibit an asylum application from a person applying for
admission at a Port of Entry and who departed for the United States or
is coming from a country which is signatory to either the 1951
Convention or the 1967 United Nations Protocol Relating to the Status
of Refugees, and in which the alien would not face harm or persecution
and would have access to a full and fair procedure for determining his
or her asylum claim.
However, most comments opposed giving asylum officers and
immigration judges the authority to deny asylum as a matter of
discretion on this ground to an otherwise qualified applicant. Several
comments claimed that these provisions do not establish acceptable
standards for refugee safety or due process in the receiving country,
and thus do not fulfill the requirements for a proposed rule under the
Administrative Procedure Act. Another comment warned that the ability
to determine what is a fair procedure for asylum should not be left to
the discretion of governmental agencies where political considerations
may play a large role.
A number of comments stated that refugees have the right to seek
protection in the country of choice and that many asylum-seekers choose
the United States because the countries through which they travel do
not offer adequate protection from discrimination or home-country
persecutors. Comments also argued that applicants may be deported to a
country in which they had never been present. Furthermore, courts have
held that an asylum-seeker may not be deported to a third country where
there are no assurances that the asylum seeker would not be indirectly
returned to the persecuting country, citing Amanullah v. Cobb, 862 F.2d
362 (1st Cir. 1988), vacated as moot, 872 F.2d 11 (1st Cir. 1989).
Under the proposed rule, an asylee also would be required to obtain
travel documents from his or her country of origin, which might
endanger the applicant or the applicant's family.
Other comments questioned how the United States would ascertain
that the asylee would be protected in the ``safe country.'' One comment
advocated that a careful and open review be conducted to determine that
procedures in the designated first country of asylum are carried out in
the same manner and with the same safeguards as asylum determinations
made within the United States. In addition, this commenter suggested,
there should be verifiable assurances that the denied applicant will be
treated by the ``safe country'' in a manner consistent with United
States legal obligations. Other comments expressed the opinion that a
``safe country'' may forcibly repatriate an asylee to the country of
persecution or that the asylee will be transferred from country to
country. Several comments stated that current rules regarding ``firm
resettlement'' adequately prevent forum shopping.
Other comments recommended modifications to the proposed rule. One
comment advocated that additional factors such as the presence of
family members in the United States, the applicant's ties (if any) to
the receiving country, and whether the applicant has a criminal record,
be used to determine whether or not to exercise the discretion to deny.
Another comment stated that only immigration judges should be
authorized to deny asylum under the proposed rule because only they
have the power to order aliens deported.
Response and Disposition: These comments have been considered
carefully. It must be emphasized that the discretionary authority
referred to in this provision is contingent upon bilateral or
multilateral agreements with other nations, and that no such agreements
now exist. In the absence of such agreements, discretionary authority
under this section cannot be exercised. Prior to the implementation of
any such agreement by the Department, public notice will be provided.
The Department is satisfied that the basic standard set forth in this
section is sufficient to protect the rights and interests of persons
entitled to protection from persecution in the event that the United
States enters such an agreement. In the meantime, most of the concerns
presented in the comments relate to how the discretionary authority
would be exercised. These concerns and others will be taken into
account if and when a bilateral or multilateral agreement on this
subject is made. This provision is retained in the final rule with an
amendment to clarify that the alien may be returned only to a country
through which the alien actually traveled en route to the United
States.
16. Issuance of Employment Authorization to Asylees (Section
208.20)
Proposed Rule: The proposed rule would have amended section 208.20
to provide that a person granted asylum who desires to work shall
receive an employment authorization document (EAD) expeditiously upon
application to the INS.
Comments: A comment stated that an asylee should not be required to
apply for an EAD, but should be issued an EAD along with notification
of the asylum decision.
Response and Disposition: The proposed amendments to section 208.20
are designed to ensure that asylees receive their EAD promptly upon
application. They do not create new requirements or obstacles for
asylees seeking authorization to work. Asylees are among the categories
of persons who are eligible for employment incident to their status but
must nevertheless apply for an employment authorization document. 8 CFR
274a.12(a)(5). Among others in this category are those aliens who are
admitted as refugees, granted withholding of deportation, or granted
Temporary Protected Status. Since authorization for employment is a
discretionary immigration benefit, the INS will continue to require
that persons in these categories file a separate application for an
EAD. Accordingly, this provision of the proposed rule will be retained
in the final rule with an amendment for clarity.
17. Aliens in Exclusion or Deportation Proceedings (Sections
236.3(a) and 242.17(c)(2))
Proposed Rule: These provisions require that in the case of an
alien in exclusion or deportation proceedings who expresses a fear of
harm or persecution upon return to his or her country of origin or
country of deportation, the immigration judge shall advise the alien
that he or she may apply for asylum or withholding of deportation and
shall make available the appropriate application forms. The proposed
rule would have amended these provisions to exempt situations where the
alien already has filed an asylum application and that application has
been referred to the immigration judge in accordance with the proposed
amendments to 8 CFR 208.14(b).
Comments: Several comments, all of which also criticized the direct
referral of asylum applications under 8 CFR 208.14(b), stated that
there should be no exception for situations where an asylum applicant
has been referred to an immigration judge. The comments argued that as
a result of this change, referred asylum applicants will receive less
procedural protection than other persons in removal proceedings.
Response and Disposition: These changes do not deny any substantive
procedural protection to asylum applicants. An applicant referred under
8 CFR 208.14(b) already has made an application for asylum, and thus
need not be advised of a right he or she has exercised. Referred
applicants will enjoy all the procedural rights accorded to other
persons in proceedings before an immigration judge. Accordingly, these
provisions of the proposed rule are adopted in the final rule, with
section 236.3(a) amended for clarity.
18. Use of Information in Application to Establish Deportability
(Section 242.17(e))
Proposed Rule: The proposed rule would have amended section
242.17(e) to expressly permit the INS to use information supplied in an
application for asylum as the basis for issuance of an Order to Show
Cause under 8 CFR 242.1 and thus initiate deportation proceedings.
Comments: A few comments criticized this amendment, stating that it
violates confidentiality by exposing the claims of applicants in
immigration court and violates due process by shifting the burden of
proof to establish deportability away from the INS. The comments stated
that this subsection would be an obstacle to the right to apply for
asylum because if the applicant's claim is denied, he or she faces
immediate deportation based on evidence provided in the application.
Some deserving applicants will avoid this risk and choose not to apply.
Response and Disposition: This aspect of the proposed rule is
necessary to promptly refer cases to an immigration judge for decision.
Often, the asylum application is the only source of information
available to the Service to initiate proceedings before the immigration
judge. Persons who choose not to file asylum applications for this
reason may forego their opportunity for consideration of their claim by
an asylum officer; if they are apprehended by the INS and placed
directly in proceedings, the immigration judge will have exclusive
jurisdiction over their cases. Immigration regulations need not be
designed to protect the ability of a person to remain unlawfully in the
United States without detection.
At the advice of the public, this provision will be amended for
clarity to provide that it applies to applications for asylum or
withholding of deportation filed on or after January 4, 1995.
The final rule will further amend section 242.17(e) to state that
an application made under section 242.17 may constitute an admission of
alienage or deportability if the alien has been properly served with
notice of the hearing before an immigration judge even in cases in
which the applicant has failed without excuse to appear for the
hearing. This amendment is necessary to enable the entry of orders of
deportation against aliens who are not lawfully present in the United
States, have been properly served with an Order to Show Cause, and fail
to appear for their hearing.
19. Employment Authorization for Persons in Proceedings (Section
274a.12(c)(13))
Proposed Rule: The proposed rule would eliminate 8 CFR
274a.12(c)(13), which provides that a person in exclusion or
deportation proceedings who is not detained and not subject to a final
order of deportation may apply for employment authorization.
Comments: Several comments opposed this change on the ground that
persons in deportation proceedings who have filed no applications for
relief, but who contest their exclusion or deportation on other
grounds, will have no other basis to obtain employment authorization
and support themselves.
Response and Disposition: As stated in the supplementary
information to the proposed rule, virtually all persons who are not
detained and are subject to exclusion or deportation proceedings are
eligible to apply for employment authorization under other provisions
of 8 CFR 274.12(c). Retaining this paragraph would be inconsistent with
the intent of this rule to limit access to employment authorization to
asylum applicants whose cases are granted or whose cases are not
decided promptly. Accordingly, this portion of the proposed rule is
adopted without amendment in the final rule.
20. Fee for Applications for Employment Authorization (Section 274a.13)
Proposed Rule: The proposed rule would have amended section 274a.13
to provide that an applicant for employment authorization under section
274a.12(c)(8) (relating to asylum applicants) must pay a fee upon both
the initial application and applications for renewal of work
authorization.
Comments: Numerous comments criticized the proposal for imposing a
filing fee upon asylum applicants. These comments are summarized under
heading 4. We consider these comments to be directed as well to the
proposal to charge a filing fee for initial applications for employment
authorization.
Response and Disposition: The Department has determined that the
final rule will require payment of a fee only upon application for
replacement or renewal of an employment authorization document. This is
consistent with the decision not to charge a fee for the filing of an
application for asylum. It also is reasonable to charge a renewal fee
to those who have previously been granted employment authorization. As
part of an ongoing comprehensive economic analysis of its entire fee
structure, the INS will examine alternative sources of funding for
employment authorization adjudications, including the possibility of a
user fee.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities, based upon the following factors.
This rule principally affects the adjudication of individual claims for
asylum and withholding of deportation and thus would have no
significant economic impact on small businesses, organizations, or
state or local governmental agencies. The amendments to regulations
concerning the issuance and renewal of employment authorization
documents could have a small and indirect impact upon business entities
by withholding employment authorization in certain cases.
The Department of Justice considers this rule to be a ``significant
regulatory action'' under section 3(f) of Executive Order 12866, and
accordingly submitted this rule to the Office of Management and Budget
for review.
The proposed rule will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
The Attorney General has reviewed this rule in light of section
2(c) of Executive Order 12778 and finds that the rule meets the
applicable standards provided in section 2(b) of the order.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.
The interim rule's amendments to 8 CFR 208.3(a) and 208.4(a) are
superseded by amendments made by this final rule. The interim rule's
amendments to 8 CFR 208.4(b) are adopted without amendment as part of
this final rule.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION
1. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.
9701; 8 CFR part 2.
2. Section 208.1 is amended by:
a. Revising in paragraph (a) the first sentence;
b. Removing in paragraph (a), in the second and fourth sentences,
the phrase ``October 1, 1990'' and adding in its place ``January 4,
1995'';
c. Adding to paragraph (a) a new sentence at the end of the
paragraph;
d. Revising in paragraph (b) the second sentence; and
e. Removing in paragraph (c) the phrase ``assist the Deputy
Attorney General and the Director of the Asylum Policy and Review Unit,
in coordination'' and adding in its place the word ``coordinate'', to
read as follows:
Sec. 208.1 General.
(a) This part shall apply to all applications for asylum or
withholding of deportation, whether before an asylum officer or an
immigration judge, that are filed on or after January 4, 1995 or
pending as of January 4, 1995. * * * The provisions of this part
relating to a person convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43), shall apply to
applications for asylum or withholding of deportation that are filed on
or after November 29, 1990.
(b) * * * These shall include a corps of professional asylum
officers who are to receive special training in international human
rights law, conditions in countries of origin, and other relevant
national and international refugee laws. * * *
* * * * *
3. Section 208.2 is amended by:
a. Removing in paragraph (a) the second sentence and adding in its
place three new sentences; and
b. Removing in paragraph (b) the second and third sentences and
adding in their place three new sentences, to read as follows:
Sec. 208.2 Jurisdiction.
(a) * * * An application that is complete within the meaning of
Sec. 208.3(c)(5) shall be either adjudicated or referred by asylum
officers under this part in accordance with Sec. 208.14. With the
exception of cases involving crewmen, stowaways, or aliens temporarily
excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), which are
within the jurisdiction of an asylum officer pursuant to Sec. 253.1(f)
of this chapter, an asylum officer shall not decide whether an alien is
entitled to withholding of deportation under section 243(h) of the Act,
8 U.S.C. 1253(h). An application that is incomplete within the meaning
of Sec. 208.3(c)(5) shall be returned to the applicant.
(b) * * * The immigration judge shall make a determination on such
claims. In cases where the adjudication of an application has been
referred in accordance with Sec. 208.14, that application shall be
forwarded with the charging document to the Office of the Immigration
Judge by the Asylum Office. As a matter of discretion, the immigration
judge may permit the applicant to amend the application, but any delay
caused by such a request shall extend the period within which the
applicant may not apply for employment authorization in accordance with
Sec. 208.7(a).
4. Section 208.3 is amended by revising paragraph (a) and adding a
new paragraph (c), to read as follows:
Sec. 208.3 Form of application.
(a) An application for asylum or withholding of deportation shall
be made on Form I-589 (Application for Asylum and for Withholding of
Deportation) and shall be submitted, together with any additional
supporting material, in triplicate, meaning the original plus two
copies. The applicant's spouse and children as defined in section 101
of the Act, 8 U.S.C. 1101(a)(35) and 1101(b)(1), may be included on the
application if they are in the United States. One additional copy of
the principal applicant's I-589 must be submitted for each dependent
listed on the principal's application. An application shall be
accompanied by one completed Form FD-258 (Fingerprint Card) for every
individual included on the application who is 14 years of age or older.
Forms I-589 and FD-258 are available from the INS and from the Offices
of Immigration Judges. The application for asylum or withholding of
deportation also shall be accompanied by a total of two photographs of
each applicant and two photographs of each dependent included on the
application.
* * * * *
(c) The application (Form I-589) shall be filed under the following
conditions and shall have the following consequences, as shall be noted
in the instructions on the application:
(1) Information provided in completing the application may be used
as a basis for the institution of, or as evidence in, exclusion
proceedings in accordance with part 236 of this chapter or deportation
proceedings in accordance with part 242 of this chapter;
(2) Information provided in the application may be used to satisfy
the burden of proof of the INS in establishing the applicant's
deportability under part 242 of this chapter;
(3) Mailing to the address provided by the applicant on the
application or the last change of address form (INS Form AR-11), if
any, received by the INS shall constitute adequate service of all
notices or other documents, except a Notice to Alien Detained for
Hearing by an Immigration Judge (Form I-122), service of which is
governed by Sec. 235.6 of this chapter, and an Order to Show Cause
(Form I-221), service of which is governed by section 242B(a)(1) of the
Act, 8 U.S.C. 1252b(a)(1);
(4) The applicant and anyone other than an immediate relative who
assists the applicant in preparing the application must sign the
application under penalty of perjury. The applicant's signature is
evidence that the applicant is aware of the contents of the
application. A person other than an immediate relative who assists the
applicant in preparing the application also must provide his or her
full mailing address;
(5) An application for asylum and for withholding of deportation
that does not include a response to each of the questions contained in
the Form I-589, that is unsigned, or that is unaccompanied by the
required materials specified in paragraph (a) of this section is
incomplete. An application that is incomplete shall be returned by mail
to the applicant within 30 days of the receipt of the application by
the INS. The filing of an incomplete application shall not commence the
150-day period after which the applicant may file an application for
employment authorization in accordance with Sec. 208.7(a)(1). If an
application has not been mailed to the applicant within 30 days, it
shall be deemed complete; and
(6) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to
civil penalties under section 274C of the Act, 8 U.S.C. 1324c. 5.
Section 208.4 is amended by revising paragraph (a) to read as follows:
Sec. 208.4 Filing the application.
* * * * *
(a) With the Service Center by mail. Except as provided in
paragraphs (b) and (c) of this section, applications for asylum or
withholding of deportation shall be filed directly by mail with the
Service Center servicing the Asylum Office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without
a United States residence, the applicant's current lodging or the land
border port of entry through which the alien seeks admission to the
United States. The addresses of the Service Centers shall be made
available through the local INS Information Unit. Upon receipt of the
application, except in the case of an alien who has been convicted of
an aggravated felony, the Service Center shall forward a copy of the
application to the Department of State.
* * * * *
6. Section 208.7 is amended by:
a. Revising the section heading;
b. Revising paragraph (a);
c. Revising in paragraph (b) the introductory text;
d. Adding a new paragraph (b)(3);
e. Removing, wherever it appears in the introductory text to
paragraph (c), the phrase ``Asylum Officer'' and adding in its place
the phrase ``asylum officer'';
f. Removing, wherever it appears in the introductory text to
paragraph (c), the phrase ``District Director'' and adding in its place
the phrase ``district director'';
g. Removing in the introductory text to paragraph (c) the phrase
``Immigration Judge'' and adding in its place the phrase ``immigration
judge'';
h. Removing in paragraph (c)(1) the phrase ``before the Immigration
Judge'' and adding in its place the phrase ``before the immigration
judge'';
i. Removing in paragraph (c)(2) the phrase ``by the Immigration
Judge'' and adding in its place the phrase ``by the immigration
judge''; and
j. Removing in paragraph (d) the word ``sixty'' and adding in its
place ``ninety'', to read as follows:
Sec. 208.7 Employment authorization.
(a) (1) An applicant for asylum who has not been convicted of an
aggravated felony shall be eligible pursuant to Secs. 274a.12(c)(8) and
274a.13(a) of this chapter to submit an Application for Employment
Authorization (Form I-765). The application shall be submitted no
earlier than 150 days after the date on which a complete application
for asylum submitted in accordance with Secs. 208.3 and 208.4 of this
part has been received. If an application for asylum has been returned
as incomplete in accordance with Sec. 208.3(c)(5), the 150-day period
will commence upon receipt by the INS of a complete application for
asylum. An applicant whose application for asylum has been denied by an
asylum officer or by an immigration judge within the 150-day period
shall not be eligible to apply for employment authorization. After the
expiration of the 150-day period, the INS shall have 30 days from the
date of filing of an initial application for employment authorization
to grant or deny that application. If the INS fails to adjudicate the
asylum application within that period, the alien shall be eligible for
interim employment authorization under this chapter. If an application
for asylum is denied by an immigration judge or an asylum officer
within the 30-day period, but prior to a decision on the application
for employment authorization, the application for employment
authorization shall be denied.
(2) An applicant who has been convicted of an aggravated felony
shall not be granted employment authorization. In cases where an
applicant has previously received employment authorization and his or
her application for asylum or withholding of deportation is denied
because the applicant has been convicted of an aggravated felony, the
employment authorization shall terminate as of the date of the denial.
(3) For purposes of this paragraph (a), the time periods within
which the alien may not apply for employment authorization and within
which the INS must respond to any such application shall begin when the
alien has filed a complete asylum application in accordance with
Secs. 208.3 and 208.4. Any delay requested or caused by the applicant
shall not be counted as part of these time periods. Such time periods
also shall be extended by the equivalent of the time between issuance
of a request for evidence under Sec. 103.2(b)(8) of this chapter and
the receipt of the applicant's response to such request.
(4) An applicant who fails without good cause to appear for a
scheduled interview before an asylum officer or a hearing before an
immigration judge shall not be granted employment authorization
pursuant to Sec. 274a.12(c)(8) of this chapter.
(5) The provisions of paragraphs (a) (1), (3), and (4) of this
section shall apply to persons who have filed an application for asylum
or withholding of deportation on or after January 4, 1995.
(b) Subject to the restrictions in paragraph (b)(3) of this
section, employment authorization shall be renewable, in increments to
be determined by the Commissioner, for the continuous period of time
necessary for the asylum officer or immigration judge to decide the
asylum application and, if necessary, for final adjudication of any
administrative or judicial review.
* * * * *
(3) If an application for asylum filed on or after November 29,
1990 is denied pursuant to Sec. 208.14(c)(4) or Sec. 208.16(c)(2)(ii)
because the applicant has been convicted of an aggravated felony, any
employment authorization previously issued under Sec. 208.7(a) shall
automatically terminate as of the date of the denial.
* * * * *
7. Section 208.8 is revised to read as follows:
Sec. 208.8 Limitations on travel outside the United States.
An applicant who leaves the United States pursuant to advance
parole granted under 8 CFR 212.5(e) shall be presumed to have abandoned
his application under this section if he returns to the country of
claimed persecution unless the applicant is able to establish
compelling reasons for such return.
8. Section 208.9 is amended by:
a. Revising paragraphs (a), (b), (c), (d), and (e);
b. Removing from paragraph (f) the phrase ``Bureau of Human Rights
and Humanitarian Affairs of the'' and the phrase ``, the Asylum Policy
and Review Unit of the Department of Justice,''; and
c. Adding a new paragraph (g), to read as follows:
Sec. 208.9 Interview and procedure.
(a) For each application for asylum or withholding of deportation
that is complete within the meaning of Sec. 208.3(c)(5) and that is
within the jurisdiction of the Office of Refugees, Asylum, and Parole,
an interview shall be conducted by an asylum officer, either at the
time of the application or at a later date to be determined by the
Asylum Office. Applications within the jurisdiction of an immigration
judge are to be adjudicated under the rules of procedure established by
the Executive Office for Immigration Review in parts 3, 236, and 242 of
this chapter.
(b) The asylum officer shall conduct the interview in a
nonadversarial manner and, at the request of the applicant, separate
and apart from the general public. The purpose of the interview shall
be to elicit all relevant and useful information bearing on the
applicant's eligibility for the form of relief sought. At the time of
the interview, the applicant must provide complete information
regarding his or her identity, including name, date and place of birth,
and nationality, and may be required to register this identity
electronically or through any other means designated by the Attorney
General. The applicant may have counsel or a representative present,
may present witnesses, and may submit affidavits of witnesses and other
evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or his
representative shall have an opportunity to make a statement or comment
on the evidence presented. The asylum officer, in his or her
discretion, may limit the length of such statement or comment and may
require their submission in writing. Upon completion of the interview,
the applicant shall be informed that he or she must appear in person to
receive and to acknowledge receipt of the decision of the asylum
officer and any other accompanying material at a time and place
designated by the asylum officer. An applicant's failure to appear to
receive and acknowledge receipt of the decision shall be treated as
delay caused by the applicant for purposes of Sec. 208.7(a)(3) and
shall extend the period within which the applicant may not apply for
employment authorization by the number of days until the applicant does
appear to receive and acknowledge receipt of the decision or until the
applicant appears before an immigration judge in response to the
issuance of a charging document under Sec. 208.14(b).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a
brief extension of time following an interview during which the
applicant may submit additional evidence. Any such extension shall
extend by equivalent time the periods specified by Sec. 208.7 for the
filing and adjudication of employment authorization applications.
* * * * *
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the INS, a competent interpreter fluent
in both English and the applicant's native language. The interpreter
must be at least 18 years of age. Neither the applicant's attorney or
representative of record nor a witness testifying on the applicant's
behalf may serve as the applicant's interpreter. Failure without good
cause to comply with this paragraph may be considered a failure without
good cause to appear for the interview for purposes of Sec. 208.10.
9. Section 208.10 is amended by:
a. Revising the first sentence; and
b. Removing, wherever it appears in the second and third sentences,
the phrase ``Asylum Officer'' and adding in its place the phrase
``asylum officer'', to read as follows:
Sec. 208.10 Failure to appear.
The failure without good cause of an applicant to appear for a
scheduled interview under Sec. 208.9(a) may be deemed to constitute a
waiver of the right to an interview with an asylum officer or, in the
case of an alien crewman, stowaway, alien temporarily excludable under
section 235(c) of the Act, 8 U.S.C. 1225, or alien currently in lawful
immigration status, may be deemed to constitute an abandonment of the
application. * * *
10. Section 208.11 is revised to read as follows:
Sec. 208.11 Comments from the Department of State.
(a) At its option, the Department of State may provide detailed
country conditions information addressing the specific conditions
relevant to eligibility for refugee status according to the grounds
specified in section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42). Any
such information relied upon by an immigration judge in deciding a
claim for asylum or withholding of deportation shall be made part of
the record and the parties shall be provided an opportunity to review
and respond to such information prior to the issuance of a decision.
(b) At its option, the Department of State also may comment on an
application it receives pursuant to Sec. 208.4(a), Sec. 236.3, or
Sec. 242.17 of this chapter by providing:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her particular situation;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted in his or her country of nationality or
habitual residence and the frequency of such persecution;
(3) Such other information as it deems relevant.
(c) Asylum officers and immigration judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate. Any such comments shall be made part of the record.
Unless the comments are classified under Executive Order 12356 (3 CFR,
1982 Comp., p. 166), the applicant shall be provided an opportunity to
review and respond to such comments prior to the issuance of an adverse
decision.
Sec. 208.12 [Amended]
11. In Sec. 208.12, paragraph (a) is amended by:
a. Removing the phrase ``the Asylum Policy and Review Unit,'';
b. Removing the phrase ``Asylum Officer'' and adding in its place
the phrase ``asylum officer'';
c. Removing the phrase ``District Director'' and adding in its
place the phrase ``district director''; and
d. Removing the second sentence.
Sec. 208.13 [Amended]
12. Sec. 208.13 is amended by:
a. Removing in paragraph (b)(1)(ii), the last sentence, the
citation ``Sec. 208.14(c)'' and adding in its place the citation
``Sec. 208.14(d)'';
b. Removing in paragraph (b)(2)(ii) the phrase ``Asylum Officer''
and adding in its place the phrase ``asylum officer''; and
c. Removing in paragraph (b)(2)(ii) the phrase ``Immigration
Judge'' and adding in its place the phrase ``immigration judge''.
13. Section 208.14 is amended by:
a. Revising the section heading;
b. Removing in paragraph (a) the phrase ``Immigration Judge'' and
adding in its place the phrase ``immigration judge'';
c. Removing in paragraph (a) the words ``or Asylum Officer'';
d. Removing in paragraph (a) the phrase ``paragraph (c)'' and
adding in its place the phrase ``paragraph (d)'';
e. Removing in paragraph (b) the phrase ``paragraph (c)'' and
adding in its place the phrase ``paragraph (d)'';
f. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d)
respectively;
g. Adding a new paragraph (b);
h. Removing in redesignated paragraph (d)(2) the word ``or'' at the
end of the paragraph;
i. Removing in redesignated paragraph (d)(3) the ``.'' at the end
of the paragraph and adding in its place ``; or'';
j. Adding a new paragraph (d)(4); and
k. Adding a new paragraph (e), to read as follows:
Sec. 208.14 Approval, denial, or referral of application.
* * * * *
(b) (1) An asylum officer may grant asylum in the exercise of
discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), unless otherwise
prohibited by paragraph (d) of this section.
(2) In the case of an alien (other than a crewman, stowaway, or
alien temporarily excluded under section 235(c) of the Act, 8 U.S.C.
1225(c)) who shall appear to be deportable under section 241 of the
Act, 8 U.S.C. 1251, or excludable under section 212 of the Act, 8
U.S.C. 1182, the asylum officer shall either grant asylum or refer the
application to an immigration judge for adjudication in deportation or
exclusion proceedings commenced in accordance with part 236 or part 242
of this chapter. An asylum officer may refer such an application after
an interview conducted in accordance with Sec. 208.9 or if, in
accordance with Sec. 208.10, the applicant is deemed to have waived his
or her right to an interview.
(3) In the case of a crewman, stowaway, or alien temporarily
excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), the asylum
officer may grant or deny asylum in accordance with the procedures set
forth in Sec. 253.1(f) of this chapter. In addition, where an
application filed by such a person is not granted, the asylum officer
shall issue a Notice of Intent to Deny to the applicant stating the
reasons why the application would be denied. The applicant shall be
given a period not less than 10 days to rebut the Notice of Intent to
Deny.
(4) In the case of a person other than described in paragraphs (b)
(2) and (3) of this section, the asylum officer may grant or deny
asylum.
(5) No application for asylum or withholding of deportation shall
be subject to denial under the authority contained in Sec. 103.2(b) of
this chapter.
* * * * *
(d) * * *
(4) The alien has been convicted of an aggravated felony, as
defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).
(e) Discretionary denials. An application from an alien may be
denied in the discretion of the Attorney General if the alien can and
will be deported or returned to a country through which the alien
traveled en route to the United States and in which the alien would not
face harm or persecution and would have access to a full and fair
procedure for determining his or her asylum claim in accordance with a
bilateral or multilateral arrangement with the United States governing
such matter.
14. Sec. 208.16 is amended by:
a. Revising paragraph (a);
b. Removing in paragraph (b)(4) the phrase ``Asylum Officer'' and
adding in its place the phrase ``asylum officer'';
c. Removing in paragraph (b)(4) the phrase ``Immigration Judge''
and adding in its place the phrase ``immigration judge''; and
d. Revising paragraph (c)(2)(ii), to read as follows:
Sec. 208.16 Entitlement to withholding of deportation.
(a) Consideration of application for withholding of deportation.
With the exception of cases that are within the jurisdiction of an
asylum officer pursuant to Sec. 253.1(f) of this chapter, an asylum
officer shall not decide whether an alien is entitled to withholding of
deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). If the
application for asylum is granted, no decision on withholding of
deportation will be made unless and until the grant of asylum is later
revoked or terminated, and exclusion or deportation proceedings at
which a new request for withholding of deportation is made are
commenced. In such proceedings, an immigration judge may adjudicate
both a renewed asylum claim and a request for withholding of
deportation simultaneously whether or not asylum is granted.
* * * * *
(c) * * *
(2) * * *
(ii) The alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of
the United States. An alien who has been convicted of an aggravated
felony shall be considered to have committed a particularly serious
crime and to constitute a danger to the community of the United States;
* * * * *
15. Section 208.17 is revised to read as follows:
Sec. 208.17 Decision.
The decision of an asylum officer to grant or to deny asylum or
withholding of deportation, or to refer an application in accordance
with Sec. 208.14(b), shall be communicated in writing to the applicant,
to the Assistant Commissioner, Refugees, Asylum, and Parole, and to the
district director having jurisdiction over the place of the applicant's
residence or over the port of entry from which the applicant sought
admission to the United States. A letter communicating denial of the
application shall state why asylum or withholding of deportation was
denied. The letter also shall contain an assessment of the applicant's
credibility, unless the application was denied pursuant to
Sec. 208.14(d)(4) or Sec. 208.16(c)(2)(ii).
Pursuant to Sec. 208.9(d), an applicant must appear in person to
receive and to acknowledge receipt of the decision.
16. In Sec. 208.18, paragraphs (a) and (b) are revised to read as
follows:
Sec. 208.18 Review of decisions and appeal.
(a) The Assistant Commissioner, Office of Refugees, Asylum, and
Parole, may review decisions by asylum officers. Parties shall have no
right of appeal to or right to appear before the Assistant Commissioner
in the course of such review.
(b) Except as provided in Sec. 253.1(f) of this chapter, there
shall be no appeal from a decision of an asylum officer. In a case
referred to an immigration judge in accordance with Sec. 208.14(b), the
supervisory asylum officer, pursuant to the authority set forth in
Secs. 235.6(a) and 242.1(a) of this chapter, shall issue respectively a
Notice to Applicant for Admission Detained for Hearing Before
Immigration Judge (Form I-122) or an Order to Show Cause (Form I-221).
* * * * *
17. Section 208.20 is revised to read as follows:
Sec. 208.20 Approval and employment authorization.
An alien granted asylum and eligible derivative family members are
authorized to be employed in the United States pursuant to
Sec. 274a.12(a)(5) of this chapter and if intending to be employed,
must apply to the INS for a document evidencing such authorization. The
INS shall issue such document within 30 days of the receipt of the
application therefor.
18. Section 208.21 is amended by:
a. Revising the introductory text in paragraph (a);
b. Redesignating paragraph (a)(3) as paragraph (a)(4);
c. Removing at the end of paragraph (a)(2) the word ``or''; and
d. Adding a new paragraph (a)(3), to read as follows:
Sec. 208.21 Admission of asylee's spouse and children.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, 8 U.S.C. 1101(a)(35), or child, as defined in section
101(b)(1)(A), (B), (C), (D), (E), or (F) of the Act, 8 U.S.C.
1101(b)(1)(A), (B), (C), (D), (E), or (F), also may be granted asylum
if accompanying or following to join the principal alien who was
granted asylum, unless it is determined that:
* * * * *
(3) The spouse or child has been convicted of an aggravated felony,
as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43); or
* * * * *
19. Section 208.24 is amended by:
a. Revising the heading and introductory text in paragraph (a);
b. Revising the introductory text in paragraph (b);
c. Revising paragraph (c);
d. Removing in paragraph (a)(3) the citation ``208.14(c)'' and
adding in its place the citation ``208.14(d)'';
e. Removing paragraph (f); and
f. Redesignating paragraph (g) as paragraph (f), to read as
follows:
Sec. 208.24 Revocation of asylum or withholding of deportation.
(a) Revocation of asylum by the Assistant Commissioner, Office of
Refugees, Asylum, and Parole. Upon motion by the Assistant Commissioner
and following an interview by an asylum officer, the grant to an alien
of asylum made under the jurisdiction of an asylum officer or a
district director may be revoked if, by a preponderance of the
evidence, the INS establishes that: * * *
(b) Revocation of withholding of deportation by the Assistant
Commissioner, Office of Refugees, Asylum, and Parole. Upon motion by
the Assistant Commissioner and following an interview by an asylum
officer, the grant to an alien of withholding of deportation made under
the jurisdiction of an asylum officer or a district director may be
revoked if, by a preponderance of the evidence, the INS establishes
that:
* * * * *
(c) Notice to applicant. Upon motion by the Assistant Commissioner
to revoke asylum status or withholding of deportation, the alien shall
be given notice of intent to revoke, with the reason therefore, at
least thirty days before the interview by the asylum officer. The alien
shall be provided the opportunity to present evidence tending to show
that he or she is still eligible for asylum or withholding of
deportation. If the asylum officer determines that the alien is no
longer eligible for asylum or withholding of deportation, the alien
shall be given written notice that asylum status or withholding of
deportation along with employment authorization are revoked.
Notwithstanding any provision of this section, an alien granted asylum
or withholding of deportation who is subject to revocation because he
or she has been convicted of an aggravated felony is not entitled to an
interview before an asylum officer.
* * * * *
PART 236--EXCLUSION OF ALIENS
20. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
21. Section 236.3 is amended by:
a. Revising the introductory text in paragraph (a);
b. Removing from the first sentence in paragraph (b) the citation
``Sec. 208.4(b)'' and adding in its place the citation
``Sec. 208.4(c)'';
c. Revising the second sentence in paragraph (b);
d. Removing, wherever it appears in paragraph (c), the phrase
``Immigration Judge'' and adding in its place the phrase ``immigration
judge'';
e. Removing, wherever it appears in paragraph (c)(4), the phrase
``Trial Attorney'' and adding in its place the phrase ``trial
attorney'';
f. Removing in paragraph (d) the phrase ``Immigration Judge'' and
adding in its place the phrase ``immigration judge''; and
g. Removing in paragraph (d) the phrase ``Trial Attorney'' and
adding in its place the phrase ``trial attorney'', to read as follows:
Sec. 236.3 Applications for asylum or withholding of deportation.
(a) If the alien expresses fear of persecution or harm upon return
to his or her country of origin or to a country to which the alien may
be deported after a determination of excludability from the United
States pursuant to part 237 of this chapter, and the alien has not been
referred to the immigration judge by an asylum officer in accordance
with Sec. 208.14(b) of this chapter, the immigration judge shall: * * *
(b) * * * Upon receipt of an application that has not been referred
by an asylum officer, the Office of the Immigration Judge shall forward
a copy to the Department of State pursuant to Sec. 208.11 of this
chapter and shall calendar the case for a hearing. * * *
* * * * *
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
22. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252b, 1254, 1362; 8 CFR part 2.
23. 242.17 is amended by:
a. Removing, wherever it appears in paragraph (c)(1), the phrase
``Immigration Judge'' and adding in its place the phrase ``immigration
judge'';
b. Revising the introductory text in paragraph (c)(2);
c. Removing from the first sentence in paragraph (c)(3) the
citation ``Sec. 208.4(b)'' and adding in its place the citation
``Sec. 208.4(c)'';
d. Revising the second sentence in paragraph (c)(3);
e. Removing from the third sentence in paragraph (c)(3) the phrase
``Trial Attorney'' and adding in its place the phrase ``trial
attorney'';
f. Removing, wherever it appears in paragraph (c)(4), the phrase
``Immigration Judge'' and adding in its place the phrase ``immigration
judge'';
g. Removing in paragraph (c)(4)(iv) the phrase ``Trial Attorney''
and adding in its place the phrase ``trial attorney'';
h. Removing in paragraph (c)(5) the phrase ``Immigration Judge''
and adding in its place the phrase ``immigration judge'';
i. Removing in paragraph (c)(5) the phrase ``Trial Attorney'' and
adding in its place the phrase ``trial attorney''; and
j. Adding in paragraph (e) a new sentence immediately after the
first sentence, to read as follows:
Sec. 242.17 Ancillary matters, applications.
* * * * *
(c) * * *
(2) If the alien expresses fear of persecution or harm upon return
to any of the countries to which the alien might be deported pursuant
to paragraph (c)(1) of this section, and the alien has not previously
filed an application for asylum or withholding of deportation that has
been referred to the immigration judge by an asylum officer in
accordance with Sec. 208.14(b) of this chapter, the immigration judge
shall: * * *
(3) * * * Upon receipt of an application that has not been referred
by an asylum officer, the Office of the Immigration Judge shall forward
a copy to the Department of State pursuant to Sec. 208.11 of this
chapter and shall calendar the case for a hearing. * * *
* * * * *
(e) * * * However, nothing in this section shall prohibit the INS
from using information supplied in an application for asylum or
withholding of deportation submitted to an asylum officer pursuant to
Sec. 208.2 of this chapter on or after January 4, 1995 as the basis for
issuance of an Order to Show Cause under Sec. 242.1 or to establish
alienage or deportability in a case referred to an immigration judge
under Sec. 208.14(b) of this chapter.
24. Sec. 242.18 is amended by:
a. Revising the section heading;
b. Removing, wherever it appears in paragraph (a), the phrase
``special inquiry officer'' and adding in its place the phrase
``immigration judge'';
c. Removing, wherever it appears in paragraph (b), the phrase
``special inquiry officer'' and adding in its place the phrase
``immigration judge'';
d. Revising the heading in paragraph (c); and
e. Removing, wherever it appears in paragraph (c), the phrase
``special inquiry officer'' and adding in its place the phrase
``immigration judge'', to read as follows:
Sec. 242.18 Decision of the immigration judge.
* * * * *
(c) Order of the immigration judge. * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
25. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
26. Section 274a.12 is amended by:
a. Revising paragraph (c)(8);
b. Revising the first sentence in paragraph (c)(10);
c. Removing in paragraph (c)(11) the word ``emergent'' and adding
in its place the word ``emergency''; and
d. Removing and reserving paragraph (c)(13), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(8) An alien who has filed a complete application for asylum or
withholding of deportation pursuant to part 208 of this chapter, whose
application has not been decided, and who is eligible to apply for
employment authorization under Sec. 208.7 of this chapter because the
150-day period set forth in that section has expired. Employment
authorization may be granted according to the provisions of Sec. 208.7
of this chapter in increments to be determined by the Commissioner and
shall expire on a specified date;
* * * * *
(10) An alien who has filed an application for suspension of
deportation pursuant to part 244 of this chapter, if the alien
establishes an economic need to work. * * *
* * * * *
(13) [Reserved].
* * * * *
27. Sec. 274a.13 is amended by revising paragraph (a), and the
first sentence in paragraph (d), to read as follows:
Sec. 274a.13 Application for employment authorization.
(a) General. Aliens authorized to be employed under
Sec. 274a.12(a)(3)-(8) and (10)-(13) must file an Application for
Employment Authorization (Form I-765) in order to obtain documentation
evidencing this fact.
(1) Aliens who may apply for employment authorization under
Sec. 274a.12(c) of this part, except for those who may apply under
Sec. 274a.12(c)(8), shall file a Form I-765 with the district director
having jurisdiction over the applicant's residence, or the district
director having jurisdiction over the port of entry at which the alien
applies, or with such other INS office as the Commissioner may
designate. The approval of applications filed under Sec. 274a.12(c) of
this part, except for Sec. 274a.12(c)(8), shall be within the
discretion of the district director. Where economic necessity has been
identified as a factor, the alien must provide information regarding
his or her assets, income, and expenses in accordance with instructions
on Form I-765.
(2) An initial application for employment authorization (Form I-
765) filed under Sec. 274a.12(c)(8) of this part shall be filed in
accordance with the instructions on or attached to Form I-765, with the
appropriate Service Center or with such other INS office as the
Commissioner may designate. The applicant also must submit a copy of
the underlying application for asylum or withholding of deportation,
together with evidence that the application has been filed in
accordance with Secs. 208.3 and 208.4 of this chapter. An application
for an initial employment authorization filed in relation to a pending
claim for asylum shall be adjudicated in accordance with Sec. 208.7 of
this chapter. An application for renewal or replacement of employment
authorization submitted in relation to a pending claim for asylum, as
provided for in Sec. 208.7 of this chapter, shall be filed, with fee or
with application for waiver of such fee, in accordance with the
instructions on or attached to Form I-765, with the appropriate Service
Center or with such other INS office as the Commissioner may designate.
The Service Center shall adjudicate the application within 30 days of
receipt.
* * * * *
(d) Interim employment authorization. The district director shall
adjudicate the application within 90 days from the date of receipt of
the application by the INS, except in the case of an initial
application for employment authorization under Sec. 274a.12(c)(8),
which is governed by paragraph (a)(2) of this section. * * *
PART 299--IMMIGRATION FORMS
28. The authority citation for Part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
29. The table in Sec. 299.5 is amended by revising the entry for
form I-589 to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form No. INS form title OMB
control
No.
------------------------------------------------------------------------
*****
I-589....... Application for Asylum and for Withholding of 115-0086
Deportation.
*****
------------------------------------------------------------------------
Dated: November 29, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-29724 Filed 12-2-94; 8:45 am]
BILLING CODE 4410-01-P
