[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: 8CFR3.42]

[Page 34-35]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.42  Review of credible fear determination.

    (a) Referral. Jurisdiction for an Immigration Judge to review an 
adverse credible fear finding by an asylum officer pursuant to section 
235(b)(1)(B) of the Act shall commence with the filing by the Service of 
Form I-863, Notice of Referral to Immigration Judge. The Service shall 
also file with the notice of referral a copy of the written record

[[Page 35]]

of determination as defined in section 235(b)(1)(B)(iii)(II) of the Act, 
including a copy of the alien's written request for review, if any.
    (b) Record of proceeding. The Immigration Court shall create a 
Record of Proceeding for a review of an adverse credible fear 
determination. This record shall not be merged with any later proceeding 
pursuant to section 240 of the Act involving the same alien.
    (c) Procedures and evidence. The Immigration Judge may receive into 
evidence any oral or written statement which is material and relevant to 
any issue in the review. The testimony of the alien shall be under oath 
or affirmation administered by the Immigration Judge. If an interpreter 
is necessary, one will be provided by the Immigration Court. The 
Immigration Judge shall determine whether the review shall be in person, 
or through telephonic or video connection (where available). The alien 
may consult with a person or persons of the alien's choosing prior to 
the review.
    (d) Standard of review. The immigration judge shall make a de novo 
determination as to whether there is a significant possibility, taking 
into account the credibility of the statements made by the alien in 
support of the alien's claim and such other facts as are known to the 
immigration judge, that the alien could establish eligibility for asylum 
under section 208 of the Act or withholding under section 241(b)(3) of 
the Act or withholding under the Convention Against Torture.
    (e) Timing. The Immigration Judge shall conclude the review to the 
maximum extent practicable within 24 hours, but in no case later than 7 
days after the date the supervisory asylum officer has approved the 
asylum officer's negative credible fear determination issued on Form I-
869, Record of Negative Credible Fear Finding and Request for Review.
    (f) Decision. If an immigration judge determines that an alien has a 
credible fear of persecution or torture, the immigration judge shall 
vacate the order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. Subsequent to the order being vacated, the Service shall issue and 
file Form I-862, Notice to Appear, with the Immigration Court to 
commence removal proceedings. The alien shall have the opportunity to 
apply for asylum and withholding of removal in the course of removal 
proceedings pursuant to section 240 of the Act. If an immigration judge 
determines that an alien does not have a credible fear of persecution or 
torture, the immigration judge shall affirm the asylum officer's 
determination and remand the case to the Service for execution of the 
removal order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. No appeal shall lie from a review of an adverse credible fear 
determination made by an immigration judge.
    (g) Custody. An Immigration Judge shall have no authority to review 
an alien's custody status in the course of a review of an adverse 
credible fear determination made by the Service.

[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999]