[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2007]
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
 
                 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,

[[Page 164]]

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.
    (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).

[[Page 165]]

    (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 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

[[Page 166]]

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 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]