[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: 8CFR208.31]



[Page 166-167]

 

                     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. 208.31  Reasonable fear of persecution or torture determinations 

involving aliens ordered removed under section 238(b) of the Act and 

aliens whose removal is reinstated under section 241(a)(5) of the Act.



    (a) Jurisdiction. This section shall apply to any alien ordered 

removed under section 238(b) of the Act or whose deportation, exclusion, 

or removal order is reinstated under section 241(a)(5) of the Act who, 

in the course of the administrative removal or reinstatement process, 

expresses a fear of returning to the country of removal. The Service has 

exclusive jurisdiction to make reasonable fear determinations, and EOIR 

has exclusive jurisdiction to review such determinations.

    (b) Initiation of reasonable fear determination process. Upon 

issuance of a Final Administrative Removal Order under Sec. 238.1 of 

this chapter, or notice under Sec. 241.8(b) of this chapter that an 

alien is subject to removal, an alien described in paragraph (a) of this 

section shall be referred to an asylum officer for a reasonable fear 

determination. In the absence of exceptional circumstances, this 

determination will be conducted within 10 days of the referral.

    (c) Interview and procedure. The asylum officer shall conduct the 

interview in a non-adversarial manner, separate and apart from the 

general public. At the time of the interview, the asylum officer shall 

determine that the alien has an understanding of the reasonable fear 

determination process. The alien may be represented by counsel or an 

accredited representative at the interview, at no expense to the 

Government, and may present evidence, if available, relevant to the 

possibility of persecution or torture. The alien's representative may 

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 the length of the 

statement. 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 may not 

be a representative or employee of the applicant's country or 

nationality, or if the applicant is stateless, the applicant's country 

of last habitual residence. 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 errors therein. The 

asylum officer shall create a written record of his or her 

determination,



[[Page 167]]



including a summary of the material facts as stated by the applicant, 

any additional facts relied on by the officers, and the officer's 

determination of whether, in light of such facts, the alien has 

established a reasonable fear of persecution or torture. The alien shall 

be determined to have a reasonable fear of persecution or torture if the 

alien establishes a reasonable possibility that he or she would be 

persecuted on account of his or her race, religion, nationality, 

membership in a particular social group or political opinion, or a 

reasonable possibility that he or she would be tortured in the country 

of removal. For purposes of the screening determination, the bars to 

eligibility for withholding of removal under section 241(b)(3)(B) of the 

Act shall not be considered.

    (d) Authority. Asylum officers conducting screening determinations 

under this section shall have the authority described in Sec. 208.9(c).

    (e) Referral to Immigration Judge. If an asylum officer determines 

that an alien described in this section has a reasonable fear of 

persecution or torture, the officer shall so inform the alien and issue 

a Form I-863, Notice of Referral to the Immigration Judge, for full 

consideration of the request for withholding of removal only. Such cases 

shall be adjudicated by the immigration judge in accordance with the 

provisions of Sec. 208.16. Appeal of the immigration judge's decision 

shall lie to the Board of Immigration Appeals.

    (f) Removal of aliens with no reasonable fear of persecution or 

torture. If the asylum officer determines that the alien has not 

established a reasonable fear of persecution or torture, the asylum 

officer shall inform the alien in writing of the decision and shall 

inquire whether the alien wishes to have an immigration judge review the 

negative decision, using Form I-898, Record of Negative Reasonable Fear 

Finding and Request for Review by Immigration Judge, on which the alien 

shall indicate whether he or she desires such review.

    (g) Review by immigration judge. The asylum officer's negative 

decision regarding reasonable fear shall be subject to review by an 

immigration judge upon the alien's request. If the alien requests such 

review, the asylum officer shall serve him or her with a Form I-863. The 

record of 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. In the absence of 

exceptional circumstances, such review shall be conducted by the 

immigration judge within 10 days of the filing of the Form I-863 with 

the immigration court. Upon review of the asylum officer's negative 

reasonable fear determination:

    (1) If the immigration judge concurs with the asylum officer's 

determination that the alien does not have a reasonable fear of 

persecution or torture, the case shall be returned to the Service for 

removal of the alien. No appeal shall lie from the immigration judge's 

decision.

    (2) If the immigration judge finds that the alien has a reasonable 

fear of persecution or torture, the alien may submit Form I-589, 

Application for Asylum and Withholding of Removal.

    (i) The immigration judge shall consider only the alien's 

application for withholding of removal under Sec. 208.16 and shall 

determine whether the alien's removal to the country of removal must be 

withheld or deferred.

    (ii) Appeal of the immigration judge's decision whether removal must 

be withheld or deferred lies to the Board of Immigration Appeals. If the 

alien or the Service appeals the immigration judge's decision, the Board 

shall review only the immigration judge's decision regarding the alien's 

eligibility for withholding or deferral of removal under Sec. 208.16.



[64 FR 8493, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]