[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: 8CFR208.30]



[Page 163-166]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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 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.



[[Page 164]]



    (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) An alien will be found to have a credible fear of persecution if 

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 officer, the alien can establish 

eligibility for asylum under section 208 of the Act or for withholding 

of removal under section 241(b)(3) of the Act.

    (3) An alien will be found to have a credible fear of torture if the 

alien shows that there is a significant possibility that he or she is 

eligible for withholding of removal or deferral of removal under the 

Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.

    (4) 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 shall consider whether the 

alien's case presents novel or unique issues that merit consideration in 

a full hearing before an immigration judge.

    (5) Except as provided in paragraph (e)(6) of this section, 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 Department of Homeland Security 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 Department shall place the 

alien in proceedings for consideration of the alien's claim pursuant to 

8 CFR 208.2(c)(3).

    (6) Prior to any determination concerning whether an alien arriving 

in the United States at a U.S.-Canada land border port-of-entry or in 

transit through the U.S. during removal by Canada has a credible fear of 

persecution or torture, the asylum officer shall conduct a threshold 

screening interview to determine whether such an alien is ineligible to 

apply for asylum pursuant to section 208(a)(2)(A) of the Act and subject 

to removal to Canada by operation of the Agreement Between the 

Government of the United States and the Government of Canada For 

Cooperation in the Examination of Refugee Status Claims from Nationals 

of Third Countries (``Agreement''). In conducting this threshold 

screening interview, the asylum officer shall apply all relevant 

interview procedures outlined in paragraph (d) of this section, 

provided, however, that paragraph (d)(2) of this section shall not apply 

to aliens described in this paragraph. The asylum officer shall advise 

the alien of the Agreement's exceptions and question the alien as to 

applicability of any of these exceptions to the alien's case.

    (i) If the asylum officer, with concurrence from a supervisory 

asylum officer, determines that an alien does not qualify for an 

exception under the Agreement during this threshold screening interview, 

the alien is ineligible to apply for asylum in the United



[[Page 165]]



States. After the asylum officer's documented finding is reviewed by a 

supervisory asylum officer, the alien shall be advised that he or she 

will be removed to Canada in order to pursue his or her claims relating 

to a fear of persecution or torture under Canadian law. Aliens found 

ineligible to apply for asylum under this paragraph shall be removed to 

Canada.

    (ii) If the alien establishes by a preponderance of the evidence 

that he or she qualifies for an exception under the terms of the 

Agreement, the asylum officer shall make a written notation of the basis 

of the exception, and then proceed immediately to a determination 

concerning whether the alien has a credible fear of persecution or 

torture under paragraph (d) of this section.

    (iii) An alien qualifies for an exception to the Agreement if the 

alien is not being removed from Canada in transit through the United 

States and

    (A) Is a citizen of Canada or, not having a country of nationality, 

is a habitual resident of Canada;

    (B) Has in the United States a spouse, son, daughter, parent, legal 

guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 

nephew who has been granted asylum, refugee, or other lawful status in 

the United States, provided, however, that this exception shall not 

apply to an alien whose relative maintains only nonimmigrant visitor 

status, as defined in section 101(a)(15)(B) of the Act, or whose 

relative maintains only visitor status based on admission to the United 

States pursuant to the Visa Waiver Program;

    (C) Has in the United States a spouse, son, daughter, parent, legal 

guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 

nephew who is at least 18 years of age and has an asylum application 

pending before U.S. Citizenship and Immigration Services, the Executive 

Office for Immigration Review, or on appeal in federal court in the 

United States;

    (D) Is unmarried, under 18 years of age, and does not have a parent 

or legal guardian in either Canada or the United States;

    (E) Arrived in the United States with a validly issued visa or other 

valid admission document, other than for transit, issued by the United 

States to the alien, or, being required to hold a visa to enter Canada, 

was not required to obtain a visa to enter the United States; or

    (F) The Director of USCIS, or the Director's designee, determines, 

in the exercise of unreviewable discretion, that it is in the public 

interest to allow the alien to pursue a claim for asylum, withholding of 

removal, or protection under the Convention Against Torture, in the 

United States.

    (iv) As used in 8 CFR 208.30(e)(6)(iii)(B), (C) and (D) only, 

``legal guardian'' means a person currently vested with legal custody of 

such an alien or vested with legal authority to act on the alien's 

behalf, provided that such an alien is both unmarried and less than 18 

years of age, and provided further that any dispute with respect to 

whether an individual is a legal guardian will be resolved on the basis 

of U.S. law.

    (7) 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



[[Page 166]]



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) Immigration judges will review negative credible fear findings 

as provided in 8 CFR 1208.30(g)(2).

    (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.



[65 FR 76136, Dec. 6, 2000, as amended at 69 FR 69488, Nov. 29, 2004]