[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR1208.30]

[Page 868-869]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER V--EXECUTIVE OFFICE OF IMMIGRATION REVIEW, DEPARTMENT OF JUSTICE
 
PART 1208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of 
Contents
 
                 Subpart B_Credible Fear of Persecution
 
Sec. 1208.30  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), asylum officers have exclusive jurisdiction to 
make credible fear determinations, and the immigration judges have 
exclusive jurisdiction to review such determinations.
    (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)--(d) [Reserved]
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and in making positive 
and negative credible fear determinations, see 8 CFR 208.30. The 
immigration judges will review such determinations as provided in 
paragraph (g)(2) of this section and 8 CFR 1003.42.
    (f) [Reserved]
    (g) Procedures for a negative credible fear finding.
    (1) [Reserved]
    (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

[[Page 869]]

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. 1003.27.
    (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 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. 1208.4(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. 1208.4(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, as amended at 69 FR 69497, Nov. 29, 2004]