[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR208.2]



[Page 139-140]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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) 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;



[[Page 140]]



    (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 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.



[65 FR 76130, Dec. 6, 2000]