[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: 8CFR240.33]

[Page 498-499]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES--Table of Contents
 
Subpart D--Exclusion of Aliens (for Proceedings Commenced Prior to April 
                                1, 1997)
 
Sec. 240.33  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 this subpart, 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:
    (1) Advise the alien that he or she may apply for asylum in the 
United States or withholding of deportation to that other country; and
    (2) Make available the appropriate application forms.
    (b) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court 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. The reply, if any, from the Department 
of State, unless classified under the applicable Executive Order, shall 
be given to both the applicant and to the Service counsel representing 
the government.
    (c) Applications for asylum or withholding of deportation so filed 
will be decided by the immigration judge pursuant to the requirements 
and standards established in 8 CFR part 208 after an evidentiary hearing 
that is necessary to resolve material factual issues in dispute. An 
evidentiary hearing extending beyond issues related to the basis for a 
mandatory denial of the application pursuant to Sec. 208.13(c) of this 
chapter is not necessary once the immigration judge has determined that 
such denial is required.

[[Page 499]]

    (1) Evidentiary hearings on applications for asylum or withholding 
of deportation will be closed to the public unless the applicant 
expressly requests that it be open pursuant to Sec. 236.3 of this 
chapter.
    (2) Nothing in this section is intended to limit the authority of 
the immigration judge properly to control the scope of any evidentiary 
hearing.
    (3) During the exclusion hearing, the applicant shall be examined 
under oath on his or her application and may present evidence and 
witnesses on his or her own behalf. The applicant has the burden of 
establishing that he or she is a refugee as defined in section 
101(a)(42) of the Act pursuant to the standard set forth in Sec. 208.13 
of this chapter.
    (4) The Service counsel for the government may call witnesses and 
present evidence for the record, including information classified under 
the applicable Executive Order, provided the immigration judge or the 
Board has determined that such information is relevant to the hearing. 
The applicant shall be informed when the immigration judge receives such 
classified information. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state that such information is material to 
the decision.
    (d) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the Service counsel for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.