[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR208.2]

[Page 180-183]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents
 
              Subpart A--Asylum and Withholding of Removal
 
Sec. 208.2  Jurisdiction.

    (a) Office of International Affairs. Except as provided in paragraph 
(b) of this section, the Office of International Affairs shall have 
initial jurisdiction over an asylum application filed by, or a credible 
fear determination pertaining to, an alien physically present in the 
United States or seeking admission at a port-of-entry. The Office of 
International Affairs shall also have initial jurisdiction to consider 
applications for withholding of removal under Sec. 208.31. An 
application that is complete within the meaning of Sec. 208.3(c)(3) 
shall either be adjudicated or referred by

[[Page 181]]

asylum officers under this part in accordance with Sec. 208.14. An 
application that is incomplete within the meaning of Sec. 208.3(c)(3) 
shall be returned to the applicant.
    (b) Immigration Court--(1) Certain aliens not entitled to 
proceedings under section 240 of the Act. After Form I-863, Notice of 
Referral to Immigration Judge, has been filed with the Immigration 
Court, an immigration judge shall have exclusive jurisdiction over any 
asylum application filed on or after April 1, 1997, by:
    (i) An alien crewmember who:
    (A) Is an applicant for a landing permit;
    (B) Has been refused permission to land under section 252 of the 
Act; or
    (C) On or after April 1, 1997, was granted permission to land under 
section 252 of the Act, regardless of whether the alien has remained in 
the United States longer than authorized;
    (ii) An alien stowaway who has been found to have a credible fear of 
persecution or torture pursuant to the procedures set forth in subpart B 
of this part;
    (iii) An alien who is an applicant for admission pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act and has remained 
longer than authorized or has otherwise violated his or her immigration 
status;
    (v) An alien who has been ordered removed under section 235(c) of 
the Act; or
    (vi) An alien who is an applicant for admission, or has been 
admitted, as an alien classified under section 101(a)(15)(S) of the Act.
    (2) Rules of procedure--(i) General. Except as provided in this 
section, proceedings falling under the jurisdiction of the immigration 
judge pursuant to paragraph (b)(1) of this section shall be conducted in 
accordance with the same rules of procedure as proceedings conducted 
under 8 CFR part 240, except the scope of review shall be limited to a 
determination of whether the alien is eligible for asylum or withholding 
of removal and whether asylum shall be granted in the exercise of 
discretion. During such proceedings all parties are prohibited from 
raising or considering any other issues, including but not limited to 
issues of admissibility, removability, eligibility for waivers, and 
eligibility for any form of relief other than asylum or withholding of 
removal.
    (ii) Notice of hearing procedures and in-absentia decisions. The 
alien will be provided with notice of the time and place of the 
proceeding. The request for asylum and withholding of removal submitted 
by an alien who fails to appear for the hearing shall be denied. The 
denial of asylum and withholding of removal for failure to appear may be 
reopened only upon a motion filed with the immigration judge with 
jurisdiction over the case. Only one motion to reopen may be filed, and 
it must be filed within 90 days, unless the alien establishes that he or 
she did not receive notice of the hearing date or was in Federal or 
State custody on the date directed to appear. The motion must include 
documentary evidence which demonstrates that:
    (A) The alien did not receive the notice;
    (B) The alien was in Federal or State custody and the failure to 
appear was through no fault of the alien; or
    (C) ``Exceptional circumstances,'' as defined in section 240(e)(1) 
of the Act, caused the failure to appear.
    (iii) Relief. The filing of a motion to reopen shall not stay 
removal of the alien unless the immigration judge grants a written 
request for a stay pending disposition of the motion. An alien who fails 
to appear for a proceeding under this section shall not be eligible for 
relief under section 208, 212(h), 212(i), 240A, 240B, 245, 248, or 249 
for a period of 10 years after the date of the denial.
    (3) Other aliens. Immigration judges shall have exclusive 
jurisdiction over asylum applications filed by an alien who has been 
served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant 
for Admission Detained for a Hearing before an Immigration Judge; or 
Form I-862, Notice to Appear, after a copy of the charging document has 
been filed with the Immigration Court.

[[Page 182]]

Immigration judges shall also have jurisdiction over any asylum 
applications filed prior to April 1, 1997, by alien crewmembers who have 
remained in the United States longer than authorized, by applicants for 
admission under the Visa Waiver Pilot Program, and by aliens who have 
been admitted to the United States under the Visa Waiver Pilot Program. 
Immigration judges shall also have the authority to review reasonable 
fear determinations referred to the Executive Office for Immigration 
Review under Sec. 208.31.

[62 FR 10337, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997, as amended at 64 
FR 8487, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76130, Dec. 6, 2000, Sec. 208.2 was 
revised, effective Jan. 5, 2001. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 208.2  Jurisdiction

    (a) Office of International Affairs. Except as provided in paragraph 
(b) or (c) of this section, the Office of International Affairs shall 
have initial jurisdiction over an asylum application filed by an alien 
physically present in the United States or seeking admission at a port-
of-entry. The Office of International Affairs shall also have initial 
jurisdiction over credible fear determinations under Sec. 208.30 and 
reasonable fear determinations under Sec. 208.31.
    (b) Jurisdiction of Immigration Court in general. Immigration judges 
shall have exclusive jurisdiction over asylum applications filed by an 
alien who has been served a Form I-221, Order to Show Cause; Form I-122, 
Notice to Applicant for Admission Detained for a Hearing before an 
Immigration Judge; or Form I-862, Notice to Appear, after the charging 
document has been filed with the Immigration Court. Immigration judges 
shall also have jurisdiction over any asylum applications filed prior to 
April 1, 1997, by alien crewmembers who have remained in the United 
States longer than authorized, by applicants for admission under the 
Visa Waiver Pilot Program, and by aliens who have been admitted to the 
United States under the Visa Waiver Pilot Program. Immigration judges 
shall also have the authority to review reasonable fear determinations 
referred to the Immigration Court under Sec. 208.31, and credible fear 
determinations referred to the Immigration Court under Sec. 208.30.
    (c) Certain aliens not entitled to proceedings under section 240 of 
the Act.
    (1) Asylum applications and withholding of removal applications 
only. After Form I-863, Notice of Referral to Immigration Judge, has 
been filed with the Immigration Court, an immigration judge shall have 
exclusive jurisdiction over any asylum application filed on or after 
April 1, 1997, by:
    (i) An alien crewmember who:
    (A) Is an applicant for a landing permit;
    (B) Has been refused permission to land under section 252 of the 
Act; or
    (C) On or after April 1, 1997, was granted permission to land under 
section 252 of the Act, regardless of whether the alien has remained in 
the United States longer than authorized;
    (ii) An alien stowaway who has been found to have a credible fear of 
persecution or torture pursuant to the procedures set forth in subpart B 
of this part;
    (iii) An alien who is an applicant for admission pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act and has remained 
longer than authorized or has otherwise violated his or her immigration 
status;
    (v) An alien who has been ordered removed under Sec. 235(c) of the 
Act, as described in Sec. 235.8(a) of this chapter (applicable only in 
the event that the alien is referred for proceedings under this 
paragraph by the Regional Director pursuant to section 235.8(b)(2)(ii) 
of this chapter); or
    (vi) An alien who is an applicant for admission, or has been 
admitted, as an alien classified under section 101(a)(15)(S) of the Act 
(applicable only in the event that the alien is referred for proceedings 
under this paragraph by the district director).
    (2) Withholding of removal applications only. After Form I-863, 
Notice of Referral to Immigration Judge, has been filed with the 
Immigration Court, an immigration judge shall have exclusive 
jurisdiction over any application for withholding of removal filed by:
    (i) An alien who is the subject of a reinstated removal order 
pursuant to section 241(a)(5) of the Act; or
    (ii) An alien who has been issued an administrative removal order 
pursuant to section 238 of the Act as an alien convicted of committing 
an aggravated felony.
    (3) Rules of procedure.
    (i) General. Except as provided in this section, proceedings falling 
under the jurisdiction of the immigration judge pursuant to paragraph 
(c)(1) or (c)(2) of this section shall be conducted in accordance with 
the same rules of procedure as proceedings conducted under 8 CFR part 
240, subpart A. The scope of review in proceedings conducted pursuant to 
paragraph (c)(1) of this section shall be limited to a determination of 
whether the alien is eligible for asylum or withholding or deferral of 
removal, and whether asylum shall be granted in the exercise of 
discretion. The scope of review in proceedings conducted pursuant to 
paragraph (c)(2) of this section

[[Page 183]]

shall be limited to a determination of whether the alien is eligible for 
withholding or deferral of removal. During such proceedings, all parties 
are prohibited from raising or considering any other issues, including 
but not limited to issues of admissibility, deportability, eligibility 
for waivers, and eligibility for any other form of relief.
    (ii) Notice of hearing procedures and in-absentia decisions. The 
alien will be provided with notice of the time and place of the 
proceeding. The request for asylum and withholding of removal submitted 
by an alien who fails to appear for the hearing shall be denied. The 
denial of asylum and withholding of removal for failure to appear may be 
reopened only upon a motion filed with the immigration judge with 
jurisdiction over the case. Only one motion to reopen may be filed, and 
it must be filed within 90 days, unless the alien establishes that he or 
she did not receive notice of the hearing date or was in Federal or 
State custody on the date directed to appear. The motion must include 
documentary evidence, which demonstrates that:
    (A) The alien did not receive the notice;
    (B) The alien was in Federal or State custody and the failure to 
appear was through no fault of the alien; or
    (C) ``Exceptional circumstances,'' as defined in section 240(e)(1) 
of the Act, caused the failure to appear.
    (iii) Relief. The filing of a motion to reopen shall not stay 
removal of the alien unless the immigration judge issues an order 
granting a stay pending disposition of the motion. An alien who fails to 
appear for a proceeding under this section shall not be eligible for 
relief under section 240A, 240B, 245, 248, or 249 of the Act for a 
period of 10 years after the date of the denial, unless the applicant 
can show exceptional circumstances resulted in his or her failure to 
appear.