[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR208.30]

[Page 212-215]
 
                     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 B--Credible Fear of Persecution
 
Sec. 208.30  Credible fear determinations involving stowaways and applicants for admission found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of 
          the Act.


    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the

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Act, the Service has exclusive jurisdiction to make credible fear 
determinations, and the Executive Office for Immigration Review has 
exclusive jurisdiction to review such determinations. Except as 
otherwise provided in this subpart, paragraphs (b) through (g) of this 
section are the exclusive procedures applicable to credible fear 
interviews, determinations, and reviews under section 235(b)(1)(B) of 
the Act.
    (b) Treatment of dependents. A spouse or child of an alien may be 
included in that alien's credible fear evaluation and determination, if 
such spouse or child:
    (1) Arrived in the United States concurrently with the principal 
alien; and
    (2) Desires to be included in the principal alien's determination. 
However, any alien may have his or her credible fear evaluation and 
determination made separately, if he or she expresses such a desire.
    (c) Authority. Asylum officers conducting credible fear interviews 
shall have the authorities described in Sec. 208.9(c).
    (d) Interview. The asylum officer, as defined in section 
235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial 
manner, separate and apart from the general public. The purpose of the 
interview shall be to elicit all relevant and useful information bearing 
on whether the applicant has a credible fear of persecution or torture, 
and shall conduct the interview as follows:
    (1) If the officer conducting the credible fear interview determines 
that the alien is unable to participate effectively in the interview 
because of illness, fatigue, or other impediments, the officer may 
reschedule the interview.
    (2) At the time of the interview, the asylum officer shall verify 
that the alien has received Form M-444, Information about Credible Fear 
Interview in Expedited Removal Cases. The officer shall also determine 
that the alien has an understanding of the credible fear determination 
process.
    (3) The alien may be required to register his or her identity 
electronically or through any other means designated by the Attorney 
General.
    (4) The alien may consult with a person or persons of the alien's 
choosing prior to the interview or any review thereof, and may present 
other evidence, if available. Such consultation shall be at no expense 
to the Government and shall not unreasonably delay the process. Any 
person or persons with whom the alien chooses to consult may be present 
at the interview and may be permitted, in the discretion of the asylum 
officer, to present a statement at the end of the interview. The asylum 
officer, in his or her discretion, may place reasonable limits on the 
number of persons who may be present at the interview and on the length 
of the statement.
    (5) If the alien is unable to proceed effectively in English, and if 
the asylum officer is unable to proceed competently in a language chosen 
by the alien, the asylum officer shall arrange for the assistance of an 
interpreter in conducting the interview. The interpreter must be at 
least 18 years of age and may not be the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, a representative or employee of the applicant's country of 
nationality, or, if the applicant is stateless, the applicant's country 
of last habitual residence.
    (6) The asylum officer shall create a summary of the material facts 
as stated by the applicant. At the conclusion of the interview, the 
officer shall review the summary with the alien and provide the alien 
with an opportunity to correct any errors therein.
    (e) Determination. (1) The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officer, and the officer's determination of whether, in light of such 
facts, the alien has established a credible fear of persecution or 
torture.
    (2) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer or immigration judge shall 
consider whether the alien's case presents novel or unique issues that 
merit consideration in a full hearing before an immigration judge.

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    (3) If an alien is able to establish a credible fear of persecution 
or torture but appears to be subject to one or more of the mandatory 
bars to applying for, or being granted, asylum contained in section 
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal 
contained in section 241(b)(3)(B) of the Act, the Service shall 
nonetheless place the alien in proceedings under section 240 of the Act 
for full consideration of the alien's claim, if the alien is not a 
stowaway. If the alien is a stowaway, the Service shall place the alien 
in proceedings for consideration of the alien's claim pursuant to 
Sec. 208.2(c)(3).
    (4) An asylum officer's determination shall not become final until 
reviewed by a supervisory asylum officer.
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-862, Notice to Appear, for full consideration of the 
asylum and withholding of removal claim in proceedings under section 240 
of the Act. If an alien stowaway is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-863, Notice of Referral to Immigration Judge, for full 
consideration of the asylum claim, or the withholding of removal claim, 
in proceedings under Sec. 208.2(c). Parole of the alien may be 
considered only in accordance with section 212(d)(5) of the Act and 
Sec. 212.5 of this chapter.
    (g) Procedures for a negative credible fear finding. (1) If an alien 
is found not to have a credible fear of persecution or torture, the 
asylum officer shall provide the alien with a written notice of decision 
and inquire whether the alien wishes to have an immigration judge review 
the negative decision, using Form I-869, Record of Negative Credible 
Fear Finding and Request for Review by Immigration Judge. The alien 
shall indicate whether he or she desires such review on Form I-869. A 
refusal by the alien to make such indication shall be considered a 
request for review.
    (i) If the alien requests such review, or refuses to either request 
or decline such review, the asylum officer shall arrange for detention 
of the alien and serve him or her with a Form I-863, Notice of Referral 
to Immigration Judge, for review of the credible fear determination in 
accordance with paragraph (f)(2) of this section.
    (ii) If the alien is not a stowaway and does not request a review by 
an immigration judge, the officer shall order the alien removed and 
issue a Form I-860, Notice and Order of Expedited Removal, after review 
by a supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the alien 
to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2) Review by immigration judge of a negative credible fear finding.
    (i) The asylum officer's negative decision regarding credible fear 
shall be subject to review by an immigration judge upon the applicant's 
request, or upon the applicant's refusal either to request or to decline 
the review after being given such opportunity, in accordance with 
section 235(b)(1)(B)(iii)(III) of the Act.
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based shall be provided to the immigration judge with 
the negative determination.
    (iii) A credible fear hearing shall be closed to the public unless 
the alien states for the record or submits a written statement that the 
alien is waiving that requirement; in that event the hearing shall be 
open to the public, subject to the immigration judge's discretion as 
provided in Sec. 3.27.
    (iv) Upon review of the asylum officer's negative credible fear 
determination:
    (A) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. The immigration judge's decision is final and

[[Page 215]]

may not be appealed. The Service, however, may reconsider a negative 
credible fear finding that has been concurred upon by an immigration 
judge after providing notice of its reconsideration to the immigration 
judge.
    (B) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, the 
immigration judge shall vacate the order of the asylum officer issued on 
Form I-860 and the Service may commence removal proceedings under 
section 240 of the Act, during which time the alien may file an 
application for asylum and withholding of removal in accordance with 
Sec. 208.4(b)(3)(i).
    (C) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed to 
file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or the 
Service to the Board of Immigration Appeals. If a denial of the 
application for asylum and for withholding of removal becomes final, the 
alien shall be removed from the United States in accordance with section 
235(a)(2) of the Act. If an approval of the application for asylum or 
for withholding of removal becomes final, the Service shall terminate 
removal proceedings under section 235(a)(2) of the Act.

[65 FR 76136, Dec. 6, 2000]