[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: 8CFR208.5]



[Page 144-145]

 

                     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. 208.5  Special duties toward aliens in custody of the Service.



    (a) General. When an alien in the custody of the Service requests 

asylum or withholding of removal, or expresses a fear of persecution or 

harm upon return to his or her country of origin or to agents thereof, 

the Service shall make available the appropriate application forms and 

shall provide the applicant with the information required by section 

208(d)(4) of the Act, except in the case of an alien who is in custody 

pending a credible fear determination under Sec. 208.30 or a reasonable 

fear determination pursuant to Sec. 208.31. Although the Service does 

not have a duty in the case of an alien who is in custody pending a 

credible fear or reasonable fear determination under either Sec. 208.30 

or Sec. 208.31, the Service may provide the appropriate forms, upon 

request. Where possible, expedited consideration shall be given to 

applications of detained aliens. Except as provided in paragraph (c) of 

this section, such alien shall not be excluded, deported, or removed 

before a decision is rendered on his or her asylum application.

    (b) Certain aliens aboard vessels. (1) If an alien crewmember or 

alien stowaway on board a vessel or other conveyance alleges, claims, or 

otherwise makes known to an immigration inspector or other official 

making an examination on the conveyance that he or she is unable or 

unwilling to return to his or her country of nationality or last 

habitual residence (if not a national of any country) because of 

persecution or a fear of persecution in that country on account of race, 

religion, nationality, membership in a particular social group, or 

political opinion, or if the alien expresses a fear of torture upon 

return to that country, the alien shall be promptly removed from the 

conveyance. If the alien makes such fear known to an official while off 

such conveyance, the alien shall not be returned to the conveyance but 

shall be retained in or transferred to the custody of the Service.

    (i) An alien stowaway will be referred to an asylum officer for a 

credible fear determination under Sec. 208.30.

    (ii) An alien crewmember shall be provided the appropriate 

application forms and information required by section 208(d)(4) of the 

Act and may then have 10 days within which to submit an asylum 

application to the district director having jurisdiction over the port-

of-entry. The district director may extend the 10-day filing period for 

good cause. Once the application has been filed, the district director, 

pursuant to Sec. 208.4(b), shall serve Form I-863 on the alien and 

immediately forward any such application to the appropriate Immigration 

Court with a copy of the Form I-863 being filed with that court.

    (2) Pending adjudication of the application, and, in the case of a 

stowaway the credible fear determination and any review thereof, the 

alien may be detained by the Service or otherwise paroled in accordance 

with Sec. 212.5 of this chapter. However, pending the credible fear 

determination, parole of an alien stowaway may be permitted only when 

the Attorney General determines, in the exercise of discretion,



[[Page 145]]



that parole is required to meet a medical emergency or is necessary for 

a legitimate law enforcement objective.

    (c) Exception to prohibition on removal. A motion to reopen or an 

order to remand accompanied by an asylum application pursuant to Sec. 

208.4(b)(3)(iii) shall not stay execution of a final exclusion, 

deportation, or removal order unless such stay is specifically granted 

by the Board of Immigration Appeals or the immigration judge having 

jurisdiction over the motion.



[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 

FR 76132, Dec. 6, 2000]