[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Rules and Regulations]
[Pages 15367-15369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7051]
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 208
[CIS No. 2440-08; DHS Docket No. USCIS 2008-0022]
RIN 1615-AB59
Forwarding of Affirmative Asylum Applications to the Department
of State
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to alter the process by which it forwards Form I-589,
Application for Asylum and Withholding of Removal, for asylum
applications filed affirmatively with U.S. Citizenship and Immigration
Services (USCIS) to the Department of State (DOS). The affirmative
asylum process allows individuals, who are physically present in the
United States, regardless of their manner of arrival and regardless of
their current immigration status, to apply for asylum. The current
regulation requires USCIS (formerly Immigration and Naturalization
Service (INS)) to forward to DOS a copy of each completed asylum
application it receives. This rule provides that USCIS will no longer
forward all affirmative asylum applications to DOS. Instead, USCIS will
send affirmative asylum applications to DOS only when USCIS believes
DOS may have country conditions information relevant to the case. This
change will increase the efficiency of DOS' review of asylum
applications. Additionally, in accordance with the Homeland Security
Act, this rule revises references to legacy INS in 8 CFR 208.11.
DATES: Effective date: This final rule is effective April 6, 2009.
Comment date: Written comments must be submitted on or before June
5, 2009 in order to be assured of consideration.
ADDRESSES: The public may submit comments, identified by DHS Docket No.
USCIS-2008-0022, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111
[[Page 15368]]
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure
proper handling, please reference DHS Docket No. USCIS-2008-0022 on the
correspondence. This mailing address may be used for paper, disk, or
CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202)
272-8377.
FOR FURTHER INFORMATION CONTACT: Jedidah M. Hussey, Deputy Chief,
Asylum Division, Refugee, Asylum, and International Operations
Directorate, U.S. Citizenship and Immigration Services, 20
Massachusetts Avenue, NW., Third Floor, Washington, DC 20529; Telephone
(202) 272-1614.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
final rule. USCIS also invites comments that relate to the economic,
environmental, or federalism effects that might result from this final
rule. Comments that will provide the most assistance to USCIS in
developing these procedures will reference a specific portion of the
final rule, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Instructions: All submissions received should include the
agency name and DHS Docket No. USCIS-2008-0022 for this rulemaking. All
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background
documents or comments received, go to http://www.regulations.gov.
Submitted comments may also be inspected at the Regulatory Management
Division, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008,
Washington, DC 20529.
II. Background
DHS regulations, at 8 CFR 208.11(a), currently state, ``[T]he
Service shall forward to the Department of State a copy of each
completed application it receives. At its option, the Department of
State may provide detailed country conditions information relevant to
eligibility for asylum or withholding of removal.'' Under the
affirmative asylum application process, USCIS receives asylum
applications filed by applicants who are not in removal proceedings at
its service centers. Upon receipt of an asylum application, service
center personnel review the asylum application to confirm that the
application is properly filed and complete, after which the service
center forwards the application to one of the Asylum Division's eight
field asylum offices for adjudication by an asylum officer.
Simultaneously, the service center forwards a copy of the asylum
application to DOS's Bureau of Democracy, Human Rights and Labor (DRL).
However, when an asylum applicant is permitted to file an asylum
application directly with an Asylum Office, the Asylum Office is
responsible for forwarding a copy of the application to DRL.
In fiscal year 2007, USCIS received 25,680 affirmative asylum
applications and forwarded a copy of each to DOS. DOS and USCIS have
determined that the current forwarding process is not an efficient
method for the agencies to identify and review cases for which DOS
review would yield the most value. To address this problem, this rule
permits USCIS, in its discretion, to send affirmative asylum
applications to DOS in those cases where USCIS believes DOS would be
likely to have information relevant to the applicant's eligibility for
asylum and withholding of removal. Generally, this would be information
that is not otherwise available or confirmation of publicly available
information, where such validation would be helpful to the
adjudication.
Additionally, USCIS and DOS have already implemented an arrangement
in which USCIS's Asylum Division headquarters (HQASM) forwards certain
applications to DRL for review and comment. USCIS requires all Asylum
Offices to send specific categories of cases to HQASM for further
review after the Asylum Office completes its initial interview and
preliminary assessment of eligibility. HQASM reviews these cases for
quality assurance purposes to ensure that eligibility standards are
properly applied. In conducting the quality assurance review, an asylum
officer at HQASM seeks DRL comments if the asylum officer believes that
DRL could provide information specific to the applicant or the
applicant's situation. This process has proven to be a productive
system by which USCIS obtains country conditions information on
specific cases. USCIS and DOS intend to maintain this system, which has
been in place for several years.
DRL applies its country conditions expertise to asylum matters in a
variety of ways, which as a whole are referred to as DRL's asylum
function. Consistent with the regulation currently at 8 CFR 208.11(c),
and as will be retained in the amended regulation, DRL responds to
requests for comments on cases specifically brought to its attention by
USCIS's Asylum Division and by the Department of Justice (DOJ),
Executive Office for Immigration Review (EOIR) immigration judges. DRL
also produces updated issue papers or ``country profiles'' for use in
asylum adjudications, and it responds to certain DHS, U.S. Immigration
and Customs Enforcement's requests for document verification in asylum
cases before EOIR. Additionally, DRL is required to provide to Congress
annually Country Reports on Human Rights Practices and International
Religious Freedom Reports which provide country conditions information
that will continue to be useful to the adjudication of asylum
applications. This rule will not alter these DRL functions. This rule
also does not affect how USCIS reviews and considers these DRL
published reports in asylum adjudications. USCIS will continue to
review the aforementioned reports, which provide country conditions
information useful to the adjudication of asylum applications.
Finally, this rule is limited to 8 CFR 208.11. This rule only
addresses submissions of affirmative asylum applications from USCIS to
DOS. It does not make any amendments to 8 CFR 1208.11, which governs
the defensive application procedure for asylum applications filed by
individuals in removal proceedings before EOIR.
II. Regulatory Requirements
A. Administrative Procedures Act
This rule addresses requirements that are procedural in nature and
does not alter the substantive rights of applicants or petitioners for
immigration benefits. Accordingly, this rule is exempt from the notice
and comment requirements under the Administrative Procedures Act (APA)
at 5 U.S.C. 553(b)(A). This rule does not change the eligibility rules
governing any immigration benefit and it will not confer rights or
obligations upon any party. Accordingly, USCIS is implementing these
amendments effective immediately upon publication in the Federal
Register. Nonetheless, DHS believes that public comments may be
valuable and is providing the public the opportunity to make comments
on this change as a matter of discretion. Comments are welcome about
the relationship between the USCIS and
[[Page 15369]]
DOS, DHS and DOS, and the role of foreign policy considerations in
asylum adjudications.
B. Regulatory Flexibility Act
Because USCIS is not required by the APA to publish a notice of
proposed rulemaking to make the changes promulgated in this rule, the
Regulatory Flexibility Act (RFA) is not applicable.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of the United States-based
companies to compete with foreign-based companies in domestic and
export markets.
E. Executive Order 12866
This rule has been designated as not significant under Executive
Order 12866, section 3(f), Regulatory Planning and Review. Thus it has
not been reviewed by the Office of Management and Budget.
F. Executive Order 13132: Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
The information collection requirement (Form I-589) contained in
this rule has been previously approved by the Office of Management and
Budget under the provisions of the Paperwork Reduction Act. The OMB
control numbers for these collections are contained in 8 CFR 299.5,
Display of control numbers. This rule does not contain a new or revised
information collection.
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
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Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
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1. The authority citation for part 208 continues to read:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
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2. Section 208.11 is revised to read as follows:
Sec. 208.11 Comments from the Department of State.
(a) U.S. Citizenship and Immigration Services (USCIS) may request,
at its discretion, specific comments from the Department of State
regarding individual cases or types of claims under consideration, or
such other information as USCIS deems appropriate.
(b) With respect to any asylum application, the Department of State
may provide, at its discretion, to USCIS:
(1) Detailed country conditions information relevant to eligibility
for asylum or withholding of removal;
(2) 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;
(3) Information about whether persons who are similarly situated to
the applicant are persecuted or tortured in the applicant's country of
nationality or habitual residence and the frequency of such persecution
or torture; or
(4) Such other information as it deems relevant.
(c) Any comments received pursuant to paragraph (b) of this section
shall be made part of the record. Unless the comments are classified
under the applicable Executive Order, the applicant shall be provided
an opportunity to review and respond to such comments prior to the
issuance of any decision to deny the application.
Janet Napolitano,
Secretary.
[FR Doc. E9-7051 Filed 4-3-09; 8:45 am]
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