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§ 212.5 Parole of aliens into the United DEPARTMENT OF JUSTICE transit through the U.S. during removal States. by the Canadian government and who * * * * * 8 CFR Parts 1003, 1208, 1212, 1235, express a fear of persecution or torture. and 1240 Subject to several specific exceptions, (e) * * * [EOIR No. 142F; AG Order No. 2740–2004] the Agreement provides for the United (2) * * * States to return such arriving aliens to (iii) Any alien granted parole into the RIN 1125–AA46 Canada, the country of last presence, to seek protection under Canadian law, United States so that he or she may Asylum Claims Made by Aliens transit through the United States in the rather than applying in the United Arriving From Canada at Land Border States for the protective claims of course of removal from Canada shall Ports-of-Entry have his or her parole status terminated asylum, withholding of removal, or upon notice, as specified in 8 CFR AGENCY: Executive Office for protection under the United Nations 212.5(e)(2)(i), if he or she makes known Immigration Review, Justice. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment to an immigration officer of the United ACTION: Final rule. or Punishment (‘‘Convention Against States a fear of persecution or an SUMMARY: This rule adopts without Torture’’ or ‘‘CAT’’). Therefore, aliens intention to apply for asylum. Upon substantial change the proposed rule to covered by the Agreement will be termination of parole, any such alien implement the December 5, 2002, allowed to seek asylum and related shall be regarded as an arriving alien, Agreement Between the Government of protections in one country or the other, and processed accordingly by the the United States and the Government but not in both. Department of Homeland Security. of Canada For Cooperation in the The Agreement specifically * * * * * Examination of Refugee Status Claims recognizes that Canada offers a generous from Nationals of Third Counties system of refugee protection, and has a PART 235—INSPECTION OF PERSONS (‘‘bilateral Agreement with Canada’’ or tradition of assisting refugees and APPLYING FOR ADMISSION ‘‘Agreement’’). The Agreement bars displaced persons abroad. The certain aliens who are arriving from Agreement also ensures that asylum ■ 6. The authority citation for part 235 Canada, or in transit during removal seekers returned to Canada will have continues to read as follows: from Canada, from applying for asylum access to a full and fair procedure for and related protections in the United determining their protection claims Authority: 8 U.S.C. 1101 and note, 1103, States. In the context of expedited before they can be removed to a third 1183, 1185 (pursuant to E.O. 13323, removal proceedings, the Department of country. published January 2, 2004), 1201, 1224, 1225, As implemented in the United States, 1226, 1228, 1365a note, 1379, 1731–32.7. Homeland Security (‘‘DHS’’) will conduct a threshold screening interview the Agreement will operate as follows. ■ 7. Section 235.3 is amended by to determine whether the Agreement First, a United States Citizenship and revising the first sentence of paragraph applies to an alien. The DHS final rule Immigration Services (‘‘USCIS’’) asylum (b)(4) to read as follows: is published elsewhere in this Federal officer will conduct a threshold Register. The role of the Executive screening interview in the context of § 235.3 Inadmissible aliens and expedited Office of Immigration Review (‘‘EOIR’’) expedited removal proceedings. The removal. is limited to an evaluation of how the DHS final rule, published elsewhere in * * * * * Agreement applies to aliens whom DHS this edition of the Federal Register, and the DHS proposed rule, published at 69 (b) * * * has chosen to place in removal proceedings. FR 10620 (March 8, 2004), address this (4) * * * If an alien subject to the process in more detail. To summarize, expedited removal provisions indicates DATES: This rule is effective December the asylum officer will conduct a an intention to apply for asylum, or 29, 2004. threshold screening interview to expresses a fear of persecution or FOR FURTHER INFORMATION CONTACT: determine whether an arriving alien torture, or a fear of return to his or her Mary Beth Keller, General Counsel, who is subject to the Agreement meets country, the inspecting officer shall not Executive Office for Immigration any of its exceptions, or whether the proceed further with removal of the Review, 5107 Leesburg Pike, Suite 2600, alien should be returned to Canada for alien until the alien has been referred Falls Church, Virginia 22041, telephone consideration of his or her protection for an interview by an asylum officer in (703) 305–0470. claims in that country. If the asylum officer determines that accordance with 8 CFR 208.30. * * * SUPPLEMENTARY INFORMATION: the alien qualifies for an exception to * * * * * Introduction the Agreement, the asylum officer will Dated: November 19, 2004. On March 8, 2004, the Department of then proceed immediately to a Tom Ridge, Justice (‘‘Department’’) and DHS consideration of whether the alien has promulgated proposed rules a credible fear of persecution or torture Secretary of Homeland Security. implementing the Agreement. See 69 FR if returned to his or her country. The [FR Doc. 04–26239 Filed 11–26–04; 8:45 am] 10627 (March 8, 2004). This final rule existing credible fear process of section BILLING CODE 4410–10–P adopts the Department’s proposed rule 235(b) of the Act will apply to those without significant change. The aliens, including the potential for proposed rule described procedures review by an immigration judge. implementing the Agreement in removal On the other hand, if the asylum proceedings under section 240 of the officer determines that an arriving alien Immigration and Nationality Act does not meet an exception to the (‘‘Act’’). Agreement and should be returned to The Agreement covers certain aliens Canada for consideration of his or her who are arriving at U.S.-Canada land asylum or other protection claims under border ports-of-entry or arriving in Canadian law, the asylum officer’s

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decision will not be reviewed by an Several commenters were concerned adequately address the issues that could immigration judge. These aliens are not about precluding aliens covered by the arise during the threshold screening eligible to apply for asylum via the Agreement from applying for interview, and that further review by an credible fear process, by operation of the withholding of removal and protection immigration judge is unnecessary, Agreement and section 208(a)(2)(A) of under the Convention Against Torture. regardless of whether the ultimate the Act. The commenters also raised issues determination is positive or negative. Finally, this rule recognizes that DHS related to the administration of the Asylum officers are trained personnel may choose, in certain cases, to place an Agreement’s exceptions, procedures for who must regularly make factual and arriving alien into removal proceedings asylum seekers returned to the United legal determinations. Additionally, the under section 240 of the Act, rather than States under the Agreement, requests for DHS final rule has been amended to expedited removal under section 235 of reconsideration of decisions made by require that a supervisory asylum officer the Act. The immigration judges will the Canadian government to return must concur in any negative threshold apply the terms of the Agreement with asylum seekers to the United States, the determination by an asylum officer. respect to the alien. In that case, if the inadmissibility of aliens subsequent to These requirements ensure a immigration judge determines that the removal to Canada, and the possibility comprehensive review at the screening Agreement is applicable and orders the of accepting motions to reopen or level, and one which comports with due alien removed, the alien will be reconsider filed by asylum seekers after process. returned to Canada to seek protection they are returned to Canada. Relatedly, several commenters under Canadian law. This rule also These and other comments about the asserted that any determination under provides that aliens whom DHS places proposed rule are summarized by the Agreement should be part of the in removal proceedings and who are subject matter and responded to below. credible fear interview process, and that ineligible to apply for protection by After careful review and consideration the proposed screening process would operation of the Agreement may, of all comments, the Department will controvert the existing statutory and nevertheless, apply for any other form of retain the structure of the proposed rule regulatory scheme governing the relief from removal for which they may without modification except for a few credible fear process. The commenters be eligible. See 8 CFR 1240.11(g)(4). minor technical changes and argue that an assessment under the corrections. Agreement is really a question of Public Comments eligibility for asylum and related relief, A. The Threshold Screening Interview The public was provided a 60-day and, under current 8 CFR 208.30(e), comment period that ended on May 7, As outlined in the DHS proposed rule once credible fear is established, any 2004. The Department received and summarized above, the Agreement question of eligibility for relief must comments from the United Nations High will be implemented by DHS in occur in removal proceedings. Commissioner for Refugees, three non- expedited removal proceedings by The Department has concluded that governmental organizations, and an means of a ‘‘threshold screening the threshold screening interview is not interested individual. The comments interview.’’ During this interview, an inconsistent with the Immigration and covered a broad range of issues, and asylum officer will question aliens who Nationality Act. See 8 U.S.C. included arguments for both expanding are subject to the Agreement to 1158(d)(5)(B). The threshold factual the rule, and for making it more determine whether they meet one of the determinations under the Agreement— restrictive. The comments also included Agreement’s exceptions. See 8 CFR e.g., whether the alien is under the age some general opposition to the 208.30(e)(6). Aliens in expedited of 18 or has a qualifying relative in the Agreement itself.1 The DHS final rule removal proceedings who do not meet United States—relate only to the published elsewhere in this edition of one of the exceptions will be returned applicability of the terms of the the Federal Register addresses public to Canada without initiation of the Agreement, which is expressly comments received in response to the credible fear process or involvement of authorized by section 208(a)(2)(A) of the DHS proposed rule. the Department’s immigration judges. Act, not to a determination whether the Several commenters asserted that Several commenters asserted that the alien has suffered past persecution or there should be a provision permitting asylum officer’s decision in the faces future persecution or torture if independent review of an asylum threshold screening interview should be returned to his or her country. In short, officer’s negative threshold subject to independent review by an the purpose of the determinations under determination, or that the evaluation immigration judge. The Department the Agreement is not to evaluate the should be conducted as part of the declines to adopt this suggestion. merits of the alien’s claims for asylum credible fear determination, which In the supplementary information to or other protections, but instead relate would include review by an the Department’s proposed rule, the to which forum will consider the merits immigration judge. In contrast, one Department explained that, compared to of those claims. There is no requirement commenter took the position that the myriad of issues that can arise in a under the Agreement that an positive threshold determinations credible fear interview, the matters in a immigration judge review a decision should be automatically reviewed by an threshold screening interview are that an alien is ineligible to apply for immigration judge, but there should be narrow in scope. See 69 FR at 10630. asylum in the United States. An asylum no review of negative determinations. The commenters contest this officer’s determination that the alien Other comments related to the characterization, and assert that many should be returned to Canada under the procedures to be applied when the complicated issues could arise. Agreement means that the alien will Agreement is applied in removal Specifically, the commenters gave then pursue his or her protection claims proceeding under section 240 of the Act. examples of age determination of in Canada under Canadian law rather ‘‘unaccompanied minors,’’ and of than in the United States, pursuant to 1 The Department notes that the public was whether an asylum seeker has a section 208(a)(2)(A). Although the provided an opportunity to express their views qualifying relative under the relevant current version of the regulations about the proposed Agreement during a meeting at the former Immigration and Naturalization Service. Agreement exceptions. referenced by commenters does not See 67 FR 46212 (July 12, 2002). The Agreement is The Department remains confident permit asylum officers to apply the now final. that asylum officers will be able to asylum bars during the credible fear

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process, the threshold screening process the merits of his or her protection Immigration Appeals (‘‘Board’’). The created in the DHS rules is separate and claims under Canadian law. Board has jurisdiction to review appeals distinct from the credible fear process. Finally, as the Department discussed from all decisions of immigration judges Further, with respect to this concern in the supplementary information to the in removal proceedings. See 8 CFR about the inconsistency between the proposed rule, permitting immigration 1003.1(b)(3) and 1240.15. This would ‘‘threshold screening interview’’ and judge review of an asylum officer’s include a decision of an immigration existing regulatory provisions, the determination to return the alien to judge concerning the applicability of the Department and DHS rules, after notice Canada under the Agreement would Agreement. to the public and opportunity for likely result in prolonging the detention of arriving aliens who otherwise could C. Withholding of Removal and comment, are amending these existing Convention Against Torture Claims regulations under authorized be returned promptly to Canada to rulemaking procedures. pursue their asylum claims there. See 69 Several commenters challenged the The Department also notes that, under FR at 10630. provision of the proposed rule that the DHS rule, once an alien satisfies any For the foregoing reasons, the states that aliens who are ineligible to of the exceptions under the Agreement, Department believes that the threshold apply for asylum in the United States an asylum officer will then make a screening interview to determine if an under the Agreement are also precluded credible fear determination relating to arriving alien should be returned to from applying for withholding of the alien’s protection claims. See 8 CFR Canada should remain separate from the removal or protection under the Convention Against Torture. The 208.30(e)(6) and 235.3(b)(4). As with credible fear process, which relates to commenters assert that section any other credible fear determination, the merits of an alien’s claims of past or 208(a)(2)(A) of the Act only provides for the alien will be able to seek a review future persecution. The Department acknowledges the legal sufficiency of safe third country agreements as a bar to of any adverse decision by an the threshold screening interview asylum, and does not extend to immigration judge. approach specified in the DHS rule and withholding of removal or protection The commenters also refer to section declines to adopt the commenters’ under CAT. 235(b)(1)(A)(ii) of the Act, which states suggested changes to this approach. As the Department pointed out in the that immigration officers shall refer an supplementary information to the arriving alien for a credible fear B. Consideration of the Agreement in proposed rule, there is nothing in interview before an asylum officer if Removal Proceedings section 241(b)(3)(A) of the Act, or in that alien indicates an intention to One commenter sought clarification Article 3 of CAT, and their respective apply for asylum or expresses a fear of as to whether certain provisions implementing regulations, which persecution. The Act generally requires normally applicable in removal prevents the United States from that an arriving alien be given a credible proceedings would apply to arriving removing an alien to a safe third country fear interview if the alien expresses aliens whom DHS has chosen to place so that the alien can pursue his or her either an intention to apply for asylum in removal proceedings. The protection claims in that country. See 69 under section 208 of the Act or a fear Department notes that individuals FR at 10631. In this discussion, we of persecution. In particular, section placed in removal proceedings pursuant explained that the specific terms of the 208(a)(1) of the Act recognizes the right to section 240 of the Act who are subject Agreement are consistent with the of an arriving alien to present a claim to the terms of the Agreement will be United States’ obligation not to return for asylum, specifically by means of the subject to the usual statutory and an individual to a country where the credible fear process under section regulatory provisions applicable in person would face persecution or 235(b) of the Act. However, section removal proceedings before an torture. See id. 208(a)(2)(A) of the Act provides that the immigration judge. The Department agrees that right to apply for asylum as stated in The commenter specifically requested withholding of removal under section section 208(a)(1) of the Act shall not the issuance of regulatory or field 241(b)(3)(A) of the Act, and withholding apply in the case of an alien who can guidance for the immigration judges to or deferral of removal under CAT, are be removed to a safe third country make clear that a reasonable request for mandatory forms of relief for aliens who pursuant to a bilateral or multilateral a continuance to obtain evidence for establish that they are entitled to such agreement. That is, aliens who can be Agreement-related issues should be relief. However, it is essential to keep in removed to a safe third country under granted. The Department declines to mind that, in order to be entitled to such this process do not have a right to apply take this action. The regulations relief, an alien must demonstrate that it for asylum in the United States. Since, governing removal proceedings provide is more likely than not that he or she as noted in section 208(a)(1) of the Act, that the immigration judge has the would be persecuted, or tortured, in the the credible fear process is the means by discretion to deny a request for a particular removal country. That is, which arriving aliens present their continuance, or to grant one when withholding or deferral of removal claim for asylum, this necessarily means ‘‘good cause’’ is shown. See 8 CFR relates only to the country as to which that aliens who can be removed to a safe 1003.29. This rule would apply to any the alien has established a likelihood of third country do not have a statutory removal proceeding where the persecution or torture—the alien may right to a credible fear review. applicability of the Agreement is at nonetheless be returned, consistent with Accordingly, an arriving alien who is issue. The parties therefore have an CAT and section 241(b)(1) and (b)(2) of subject to the bilateral Agreement with established procedure by which to make the Act, to other countries where he or Canada, and does not qualify for an a request for a continuance, and the she would not face a likelihood of exception to that Agreement, would not immigration judge will adjudicate such persecution or torture. have the right to present a claim for requests on a case-by-case basis. In the context of aliens covered by the asylum through the credible fear One commenter questioned whether Agreement, the United States and process, including immigration judge individuals placed in removal Canada have acknowledged that Canada review. Rather, in accord with the Act, proceedings will be permitted to appeal is a safe third country where aliens will the alien would be returned to Canada the findings of an immigration judge have resort to its asylum system, and so that Canadian officials can consider under the Agreement to the Board of where they will have access to a full and

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fair procedure for determining their ‘‘indirect’’ refoulement in violation the On the other hand, one commenter claims for protection against United States’ international obligation stated that the family unity exceptions persecution or torture if returned to any to protect refugees. The commenter in the Agreement are too broad, and that country in which they fear such harm. argues that returning the asylum seeker they should include a provision Canada is a safe third country, and in to Canada may indirectly constitute requiring family members to assume full the absence of a showing that an alien refoulement if Canadian authorities financial responsibility for any alien would face the likelihood of persecution subsequently send the alien back to the falling under an exception. The or torture in Canada, the United States place of feared persecution. This rule, commenter also expressed other clearly would not be in violation of its however, only deals with returning an objections to the exceptions, arguing for international obligations (as those individual to Canada pursuant to the example that minors should not be obligations are codified in the Act and terms of the Agreement, where the alien treated any differently than adults. The its implementing regulations) by will have a full opportunity to pursue Department declines to narrow or limit returning such an alien to Canada.2 their claims for protection. As any exceptions to the Agreement, just as Thus this rule is fully consistent with previously stated, returning an alien to the Department has declined to expand the legal requirements under section a safe third country is fully consistent upon them. 241(b)(3) of the Act and CAT. with the United States’ obligations not 2. Valid Visa Exception The commenters also assert that to return an individual to a country Canada’s mere accession to CAT is an where the person would face One commenter expressed concern insufficient basis to exclude aliens from persecution or torture. about the exception for asylum seekers seeking CAT relief, arguing that the who arrive in the United States Department and DHS rules somehow set D. Exceptions to the Agreement pursuant to a validly issued United a precedent for a ‘‘safe country of One commenter expressed several States visa or other valid admission origin’’ list that is a step beyond the safe specific concerns about the exceptions document. The commenter effectively third country concept. They argue that provided for by the Agreement, and noted that DHS may consider such adjudication of refugee claims should these suggestions will be addressed in documents, even if genuine, to support not be precluded based upon a blanket turn. The Department initially points a charge of fraud in violation of section determination that a country is ‘‘safe.’’ out that the exceptions to the Agreement 212(a)(6)(C) of the Act if they were In support of their argument, the are found in the DHS final rule at 8 CFR procured by applicants whose true commenters state that aliens presently 208.30(e)(6)(iii), and are incorporated by intentions were to enter the United seek CAT protection from countries that reference into this final rule at 8 CFR States to apply for asylum. The are signatories to CAT, mentioning 1240.11(g)(3). The DHS rule provides a commenter sought clarification as to those countries by name. detailed discussion of the exceptions. whether such United States visas would The Department is not persuaded by be considered ‘‘validly issued’’ under 1. Family Unity Provisions this line of argument, because the the exception to the Agreement. The provisions of this rule only apply with The commenter recommended that DHS has not amended its rule in this respect to a safe third country agreement under the family unity provisions, the area; however, the supplementary that satisfies all of the requirements of term ‘‘spouse’’ should be interpreted to information to the DHS final rule states section 208(a)(2)(A) of the Act. At include a common-law spouse. DHS has that for the limited purposes of applying present the only such Agreement is not expanded the definition of spouse; the exception to the Agreement, USCIS between the United States and Canada. similarly, the Department will not will issue and apply operational The Agreement was created in undertake this action. The Department guidance interpreting the term ‘‘validly recognition of that country’s does point out that the Act and case law issued’’ without regard to the asylum relationship with the United States, and have addressed the definition of seeker’s subjective intent. If an alien is other specific factors. These include ‘‘spouse’’ under the immigration law. placed into removal proceedings under Canada’s generous refugee system, See, e.g., section 101(a)(35) of the Act; section 240 of the Act, the parties may tradition of assisting refugees and Matter of H-, 9 I&N Dec. 640 (BIA 1962) raise any issues concerning the displaced persons, and agreement to (recognizing the general rule that the interpretation of this exception before provide each refugee status claimant validity of a marriage is determined by the immigration judge in the course of access to a full and fair refugee status the law of the place where it is removal proceedings. The Department determination procedure as a means to contracted or celebrated). The parties notes that the factual basis for a possible guarantee the protections of the 1951 are free to present any proper arguments finding of inadmissibility under section Convention Relating to the Status of regarding the interpretation of the term 212(a)(6)(C) of the Act will be Refugees, the 1967 Protocol Relating to ‘‘spouse’’ before the immigration judge scrutinized, because such a finding may the Status of Refugees, and the in the course of removal proceedings. permanently bar an alien from Convention Against Torture. The commenter also recommended admission. See Matter of Y-G-, 20 I&N Additionally, one commenter argued that ‘‘de facto’’ relatives be considered Dec. 794 (BIA 1994). eligible ‘‘anchor’’ relatives if the that returning an alien to Canada under 3. Public Interest Exception the Agreement would constitute individual serves or has served as the alien’s primary source of emotional or One commenter raised several issues 2 The commenters do not appear to be challenging material support, regardless of their concerning the application of the public the designation of Canada as a safe third country. relationship to the alien. As explained interest exception for aliens in removal We note that Article 2 of the Agreement provides in the supplementary information to the proceedings. For example, the that the Agreement does not apply to refugee claimants who are citizens of Canada or the United DHS final rule, the definition of ‘‘family commenter recommended that minors States or to aliens who, not having a country of member’’ was the subject of much who have a parent or legal guardian in nationality, are habitual residents of Canada or the negotiation in the context of the the United States and do not meet any United States. If an alien has any additional Agreement, and DHS has declined to of the specific exceptions to the arguments about why return to Canada is not appropriate under the Agreement, they could be further expand the definition in its final Agreement should be considered under raised with DHS in the context of the public interest rule. The Department accordingly the public interest exception. The DHS exception. declines to make this change. rule provides that an asylum officer may

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decide in the public interest to allow an province of DHS. See, e.g., Matter of while they pursue their refugee claims alien covered by the Agreement to Bahta, 22 I&N Dec. 1381, 1391 (BIA in Canada. pursue a claim for asylum or other 2000) (addressing the former The Department declines to accept the protection even though the alien does Immigration and Naturalization commenter’s recommendations. Because not meet a specific exception to the Service’s fundamental authority to the Agreement does not contemplate Agreement. If the alien is in removal exercise procedural discretion on that special consideration be given to proceedings, DHS may file a written whether to commence removal such aliens, DHS will in the first notice of its decision before the proceedings). The supplementary instance decide how to deal with these immigration judge. See 8 CFR information to the DHS final rule individuals in the exercise of its 240.11(g)(3). The Attorney General has provides a discussion of how these enforcement discretion. If the aliens are decided that the decision to invoke this asylum seekers will be received and placed into removal proceedings before authority will be left solely within the processed. an immigration judge, they will have discretion of DHS and will not be The commenter recommended that, if recourse to existing procedures, within the discretion of the immigration DHS decides to detain an asylum seeker including procedures for custody and judges to review or adjudicate in the returned under the Agreement, bond redeterminations, and requests for first instance. The Department therefore immigration judges should either order administrative closure. For a more declines to expand or amend the public the release of the individual or set a low complete discussion of how these aliens interest definition as has been suggested bond if the person does not pose a may be processed should this situation by the commenter. We note that the danger to the community and his or her arise, see the SUPPLEMENTARY supplementary information to the DHS identity has been established. INFORMATION section in the DHS final rule concluded that the public interest The Department declines to adopt rule published elsewhere in this Federal exception is best administered through special rules in this situation. In Register. general, an alien whom DHS has chosen operational guidance and on a case-by- F. Reconsideration by Canada for case basis. In addition, DHS has stated to place in removal proceedings before an immigration judge will be subject to Asylum Seekers Returned to the United in the preamble to its rule that it will States be sensitive to the unique issues facing the established procedures governing minors and will proceed carefully in custody and bond determinations. See 8 One commenter has encouraged those cases. CFR 236.1, 1003.19, and 1236.1(d). Canada to establish a mechanism to The commenter also recommended Those procedures do not apply, reconsider cases, based on new that the proposed rule establish a however, with respect to arriving aliens evidence or changed circumstances, procedure between the Department and whom DHS has placed in expedited after a person has been returned to the DHS to ensure that DHS fully considers removal under section 235 of the Act. United States under the Agreement. The the application of the public interest See also 8 CFR 235.3(c) (arriving aliens commenter seeks an explanation as to exception in those cases being remain subject to detention as arriving how the Department would assist adjudicated before an immigration aliens even if they are placed into Canadian authorities if such a judge. The Department declines to removal proceedings under section 240 reconsideration was sought. The accept the commenter’s of the Act, but may be paroled by DHS). commenter specifically recommends recommendation. This rule provides An arriving alien’s custody status is not that, in the event Canadian authorities that an immigration judge may consider subject to review by an immigration seek the alien’s presence at the United asylum issues regarding an alien who judge. See 8 CFR 1003.19(h)(2)(i)(B); States-Canadian border to reconsider a otherwise would be barred by the Matter of Oseiwusu, 22 I&N Dec. 19 (BIA claim, the immigration judge should Agreement if DHS notifies the 1998). order the release or appropriately lower immigration judge that it has invoked The commenter further expressed the bond of that alien, and the public interest exception. If an issue concern about a possible surge of administratively close the alien’s case if arises in removal proceedings related to asylum seekers to the United States- he or she is admitted into Canada to the public interest exception, and it is Canadian ports-of-entry before the pursue a refugee claim. within the jurisdiction of the implementation of the Agreement, The Agreement does not address the immigration judge to address, the which would result in the Canadian issue of reconsideration of claims after parties may raise the matter during the authorities being overwhelmed with they are adjudicated by either country. proceedings under the existing rules. requests and having to ‘‘direct back’’ The Department will not speculate aliens to the United States with re- about what future developments in this E. Procedures for Asylum Seekers scheduled Canadian interviews. This area might occur. If Canadian officials Returned to the United States has reportedly happened in the past, do seek to reconsider the case of an One commenter sought an and one consequence was that asylum alien who is in removal proceedings, the explanation as to how asylum seekers seekers were detained in the United initial determination on how to respond returned to the United States from States and unable to return to Canada would be made by DHS, not by the Canada under the Agreement will be for their interviews. The commenter immigration judge. The parties to the received and processed. The commenter recommended that, with respect to proceedings may present their positions understood that these returnees, without asylum seekers placed in removal concerning the alien’s detention in the lawful status in the United States, will proceedings ‘‘as a result of a Canadian course of any custody review properly be processed as if apprehended in the direct-back, and absent any serious before the immigration judge. Further, interior of the United States and thus security concerns,’’ immigration judges any request for administrative closure of will be placed in removal proceedings, either release these individuals on their a removal proceeding should be rather than being treated as arriving own recognizance or set a low bond so addressed on a case-by-case basis. See aliens subject to expedited removal. that they can return to Canada to attend generally Matter of Gutierrez, 21 I&N The manner in which asylum seekers their scheduled hearings. The Dec. 479, 480 (BIA 1996) (administrative returned to the United States from commenter also recommended that the closure is used to temporarily remove a Canada under the Agreement will be removal proceedings of such case from the docket, and is not received and processed is within the individuals be administratively closed permitted if opposed by either party).

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The Department therefore declines to The commenter requested that, at a cross-reference the provisions of the accept the commenter’s minimum, individuals returned to DHS rule rather than restating them. recommendation. Canada be permitted to resubmit asylum The Department is also correcting a claims at the border, assuming they are typographical error to the part heading G. Inadmissibility of Aliens Removed to not detained. With respect to an alien of 8 CFR 1235. Canada Under the Agreement who already has been returned to Regulatory Flexibility Act One commenter recommended that an Canada under the Agreement in order to alien who is returned to Canada under seek protection under Canadian law, The Attorney General, in accordance the Agreement should not subsequently allowing such an alien to return once with the Regulatory Flexibility Act (5 be found inadmissible to the United again to the United States and resubmit U.S.C. 605(b)), has reviewed this States under section 212(a)(9)(A)(i) of his or her asylum claims after being regulation and, by approving it, certifies the Act (providing that any alien who denied relief in Canada would that this rule will not have a significant has been ordered removed under section undermine a general premise of the economic impact on a substantial 235(b)(1) of the Act, or at the end of Agreement, which is that a covered number of small entities. This rule removal proceedings under section 240 alien is able to seek protection in one affects individual aliens, as it relates to of the Act initiated upon the alien’s country or the other, but not both. If claims of asylum. It does not affect arrival, is inadmissible for 5 years after such an alien later returns to a U.S.- small entities, as that term is defined in the date of such removal). Canada land border port-of-entry 5 U.S.C. 601(6). seeking protection, he or she would The Department notes that the Unfunded Mandates Reform Act of remain subject to the Agreement and be applicability of the Agreement does not 1995 change the fact that an alien has been removed to Canada again unless he or This rule will not result in the ordered removed in the context of she was able to establish an exception expenditure by State, local, and tribal expedited removal proceedings or to the Agreement. governments, in the aggregate, or by the removal proceedings under section 240 I. Miscellaneous Issues private sector, of $100 million or more of the Act. The Department finds no The Department also received several in any one year, and it will not reason why section 212(a)(9)(A) of the miscellaneous comments from one significantly or uniquely affect small Act, or any related provisions commenter who asserted that the United governments. Therefore, no actions were concerning aliens removed from the States has too many illegal immigrants deemed necessary under the provisions United States, would not apply in the (which drives up various costs), that of the Unfunded Mandates Reform Act case of an alien subject to the battered women should stay in their of 1995. Agreement who is subject to expedited own countries and work to change laws removal or is ordered removed to there, and that this rule is a ‘‘major Small Business Regulatory Enforcement Canada by an immigration judge. As for rule’’ that will costs taxpayers millions Fairness Act of 1996 other arriving aliens who have been of dollars. This rule is not a major rule as ordered removed, the alien may seek In response, it is the Department’s defined by section 251 of the Small DHS’ consent to reapply for admission, long-standing position that America is a Business Regulatory Enforcement Act of pursuant to section 212(a)(9)(A)(iii) of welcoming country to persons who 1996 (5 U.S.C. 804). This rule will not the Act. come here lawfully—whether they come result in an annual effect on the H. Requests for Reconsideration for here as immigrants or non-immigrants economy of $100 million or more; a Asylum Seekers Returned to Canada (including as refugees from human major increase in costs or prices; or rights abuses)—and that lawful significant adverse effects on One commenter recommended that immigration benefits this country. competition, employment, investment, the immigration judge and the Board However, the Department and other productivity, innovation, or on the permit requests by the individual agencies of the United States ability of United States-based asylum seeker, or the Canadian government vigorously enforce companies to compete with foreign- government, to reconsider a decision American immigration laws against based companies in domestic and that an alien did not qualify for an illegal immigration. The Department export markets. exception to the Agreement, even after disagrees that this rule is a ‘‘major rule’’ an alien has been removed to Canada. under the Small Business Regulatory Executive Order 12866 The Department declines to accept the Enforcement Fairness Act or that it is The Attorney General has determined commenter’s recommendation. The ‘‘economically significant’’ within the that this rule is a ‘‘significant regulatory rules governing motions for reopening meaning of Executive Order 12866. This action’’ under Executive Order 12866, and reconsideration do not provide rule simply implements a statutorily- section 3(f), Regulatory Planning and authority for third parties, such as the authorized agreement between the Review, and, accordingly, this rule has Canadian government, to file motions in United States and Canada that allocates been submitted to the Office of proceedings before the immigration responsibility between the United States Management and Budget for review. In judge or the Board. See 8 CFR 1003.2(a) and Canada for processing claims of particular, the Department has assessed and 1003.23(b). In addition, the certain asylum seekers. both the costs and benefits of this rule regulations provide that a motion to Finally, the Department has added as required by Executive Order 12866, reopen or reconsider shall not be made one minor conforming amendment at 8 section 1(b)(6), and has made a reasoned by or on behalf of a person who is the CFR 1235.3(b)(4) to accommodate DHS’ determination that the benefits of this subject of removal, deportation, or use of the threshold screening process regulation justify its costs. exclusion proceedings subsequent to his in applying the Agreement. For more The rule would implement a bilateral or her departure from the United States. details concerning the DHS amendment Agreement that allocates responsibility See 8 CFR 1003.2(d) and 1003.23(b). to 8 CFR 235.3(b)(4), see the DHS final between the United States and Canada The Department declines to make any rule also appearing in this Federal for processing claims of certain asylum- amendments to these existing Register. This rule makes a conforming seekers, enhancing the two nations’ regulations. amendment to 8 CFR 1235.3(b)(4) to ability to manage, in an orderly fashion,

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asylum claims brought by persons recordkeeping or reporting 8 CFR Part 1235 crossing our common border. The rule requirements. applies to certain individuals in Administrative practice and Family Assessment Statement removal proceedings who apply for procedure, Aliens, Immigration, and asylum. This rule simply adds another The Attorney General has reviewed Reporting and recordkeeping factor for immigration judges to this regulation and assessed this action requirements. consider in removal proceedings. in accordance with the criteria specified 8 CFR Part 1240 Therefore, the ‘‘tangible’’ costs of this by section 654(c)(1) of the Treasury rulemaking to the U.S. Government are General Appropriations Act, 1999, Administrative practice and minimal. Applicants who are found to Public Law 105–277, Div. A. The procedure and Aliens. be subject to the bilateral Agreement Attorney General has determined that it ■ Accordingly, chapter V of title 8 of the with Canada will be returned to Canada will not affect family well-being as that Code of Federal Regulations is amended to seek asylum, saving the U.S. term is defined in section 654. as follows: Government the cost of adjudicating The separate final rule published by their asylum claims. the Department of Homeland Security PART 1003—EXECUTIVE OFFICE FOR The cost to asylum-seekers who, explains that an alien arriving at U.S.- IMMIGRATION REVIEW under the rule, will be returned to Canada land border port-of-entry may Canada are the costs of pursuing an qualify for an exception to the bilateral ■ 1. The authority citation for part 1003 asylum claim in Canada, as opposed to Agreement with Canada, which continues to read as follows: the United States. There is no fee to otherwise requires individuals to seek Authority: 5 U.S.C. 301; 8 U.S.C. 1101 apply for asylum in Canada and, under protection in the country of last Canadian law, asylum-seekers are note, 1103, 1252 note, 1252b, 1324b, 1362; 28 presence (Canada), by establishing a U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. provided social benefits for which they relationship to a family member in the are not eligible in the United States. 2 of 1950, 3 CFR, 1949–1953 Comp., p. 1002; United States who has lawful status in section 203 of Pub. L. 105–100, 111 Stat. Therefore, the tangible costs of seeking the United States, other than a visitor, 2196–200; sections 1506 and 1510 of Pub. L. asylum in Canada are no greater than or is 18 years of age or older and has an 106–386; 114 Stat. 1527–29, 1531–32; section they are in the United States. The asylum application pending. The DHS 1505 of Pub. L. 106–554, 114 Stat. 2763A– ‘‘intangible’’ costs to asylum-seekers proposed rule addresses issues relating 326 to –328. who would be returned to Canada under to family well-being in connection with the rule are the costs of potential that rule. ■ 2. Section 1003.42 is amended by separation from support networks they This rule provides that the adding new paragraph (h) to read as may be seeking to join in the United immigration judges will apply the follows: States. However, the Agreement definition of ‘‘family member’’ used in contains broad exceptions based on the Agreement and DHS rule, in those § 1003.42 Review of credible fear determinations. principles of family unity that would cases where DHS has chosen to place an allow many of those with family alien who is subject to the Agreement * * * * * connections in the United States to seek into removal proceedings under section (h) Safe third country agreement. (1) asylum in the United States under 240 of the Act. However, that is Arriving alien. An immigration judge existing regulations. expected to occur only very rarely. In has no jurisdiction to review a Executive Order 13132 any other case, where DHS does not determination by an asylum officer that choose to place an arriving alien into an arriving alien is not eligible to apply This rule will not have substantial removal proceedings under section 240 for asylum pursuant to a bilateral or direct effects on the States, on the of the Act, this rule has no effect on multilateral agreement (the Agreement) relationship between the National family well-being, because the under section 208(a)(2)(A) of the Act Government and the States, or on the immigration judges will not be and should be returned to a safe third distribution of power and involved. DHS determinations made country to pursue his or her claims for responsibilities among the various under the Agreement will not be asylum or other protection under the levels of government. Therefore, in reviewed by the Department of Justice. laws of that country. See 8 CFR accordance with section 6 of Executive 208.30(e)(6). However, in any case Order 13132, it is determined that this List of Subjects where an asylum officer has found that rule does not have sufficient federalism 8 CFR Part 1003 an arriving alien qualifies for an implications to warrant the preparation exception to the Agreement, an of a federalism summary impact Administrative practice and immigration judge does have statement. procedure, Aliens, Immigration, Legal Services, Organization and function jurisdiction to review a negative Executive Order 12988 Civil Justice (Government agencies). credible fear finding made thereafter by Reform the asylum officer as provided in this 8 CFR Part 1208 section. This rule meets the applicable standards set forth in sections 3(a) and Administrative practice and (2) Aliens in transit. An immigration 3(b)(2) of Executive Order 12988. procedure, Aliens, Immigration, and judge has no jurisdiction to review any Reporting and recordkeeping determination by DHS that an alien Paperwork Reduction Act requirements. being removed from Canada in transit through the United States should be The provisions of the Paperwork 8 CFR Part 1212 Reduction Act of 1995, Public Law 104– returned to Canada to pursue asylum 13, 44 U.S.C. chapter 35, and its Administrative practice and claims under Canadian law, under the implementing regulations, 5 CFR part procedure, Aliens, Immigration, terms of a safe third country agreement 1320, do not apply to this final rule Passports and visas, and Reporting and with Canada. because there are no new or revised recordkeeping requirements. * * * * *

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PART 1208—PROCEDURES FOR PART 1212—DOCUMENTARY may be removed to a safe third country ASYLUM AND WITHHOLDING OF REQUIREMENTS; NONIMMIGRANTS; pursuant to a bilateral or multilateral REMOVAL WAIVERS; ADMISSION OF CERTAIN agreement (Agreement), in the case of an INADMISSIBLE ALIENS; PAROLE alien who is subject to the terms of the ■ 3. The authority citation for part 1208 Agreement and is placed in proceedings ■ is revised to read as follows: 6. The authority citation for part 1212 pursuant to section 240 of the Act. In an is revised to read as follows: appropriate case, the immigration judge Authority: 8 U.S.C. 1103, 1158, 1226, 1252, Authority: 8 U.S.C. 1101 and note, 1103. shall determine whether under the 1282. Agreement the alien should be returned ■ 7. Section 1212.5 is revised to read as ■ to the safe third country, or whether the 4. Section 1208.4 is amended by follows: alien should be permitted to pursue adding new paragraph (a)(6) to read as asylum or other protection claims in the follows: § 1212.5 Parole of aliens into the United States. United States. § 1208.4 Filing the application. Procedures and standards for the (2) An alien described in paragraph (g)(1) of this section is ineligible to * * * * * granting of parole by the Department of Homeland Security can be found at 8 apply for asylum, pursuant to section (a) * * * CFR 212.5. 208(a)(2)(A) of the Act, unless the (6) Safe third country agreement. immigration judge determines, by Immigration judges have authority to PART 1235—INSPECTION OF preponderance of the evidence, that: consider issues under section PERSONS APPLYING FOR ADMISSION (i) The Agreement does not apply to 208(a)(2)(A) of the Act, relating to the the alien or does not preclude the alien ■ determination of whether an alien is 8. The authority citation for part 1235 from applying for asylum in the United ineligible to apply for asylum and is revised to read as follows: States; or should be removed to a safe third Authority: 8 U.S.C. 1101 and note; 1103; (ii) The alien qualifies for an country pursuant to a bilateral or 1183; 1201; 1224; 1225; 1226; 1228. exception to the Agreement as set forth in paragraph (g)(3) of this section. multilateral agreement, only with ■ 9. The heading for part 1235 is revised respect to aliens whom DHS has chosen to read as above. (3) The immigration judge shall apply the applicable regulations in deciding to place in removal proceedings under ■ 10. Section 1235.3 is amended by whether the alien qualifies for any section 240 of the Act, as provided in revising paragraph (b)(4) introductory 8 CFR 1240.11(g). For DHS regulations exception under the Agreement that text and paragraph (b)(4)(i) to read as would permit the United States to relating to determinations by asylum follows: officers on this subject, see 8 CFR exercise authority over the alien’s 208.30(e)(6). § 1235.3 Inadmissible aliens and expedited asylum claim. The exceptions under the removal. Agreement are codified at 8 CFR * * * * * * * * * * 208.30(e)(6)(iii). The immigration judge ■ 5. Section 1208.30 is amended by: (b) * * * shall not review, consider, or decide any ■ a. Revising paragraphs (a) and (e); and (4) Claim of asylum or fear of issues pertaining to any discretionary by persecution or torture. (i) The DHS determination on whether the alien regulations at 8 CFR 235.3(b)(4) provide should be permitted to pursue an ■ b. Removing and reserving paragraphs for referring an alien to an asylum asylum claim in the United States (c), (d), (f), and (g)(1). officer if the alien indicates an intention notwithstanding the general terms of the The revisions read as follows: to apply for asylum or expresses a fear Agreement, as such discretionary public of persecution or torture or a fear of interest determinations are reserved to § 1208.30 Credible fear determinations return to his or her country. DHS. However, an alien in removal involving stowaways and applicants for * * * * * proceedings who is otherwise ineligible admission found inadmissible pursuant to to apply for asylum under the section 212(a)(6)(C) or 212(a)(7) of the Act. PART 1240—PROCEEDINGS TO Agreement may apply for asylum if DHS (a) Jurisdiction. The provisions of this DETERMINE REMOVABILITY OF files a written notice in the proceedings subpart apply to aliens subject to ALIENS IN THE UNITED STATES before the immigration judge that it has sections 235(a)(2) and 235(b)(1) of the decided in the public interest to allow Act. Pursuant to section 235(b)(1)(B), ■ 11. The authority citation for part 1240 the alien to pursue claims for asylum or asylum officers have exclusive is revised to read as follows: withholding of removal in the United jurisdiction to make credible fear Authority: 8 U.S.C. 1103, 1182, 1186a, States. determinations, and the immigration 1224, 1225, 1226, 1227, 1251, 1252 note, (4) An alien who is found to be judges have exclusive jurisdiction to 1252a, 1252b, 1362; secs. 202 and 203, Pub. ineligible to apply for asylum under review such determinations. L. 105–100, 111 Stat. 2160, 2193; sec. 902, section 208(a)(2)(A) of the Act is Pub. L. 105–277, 112 Stat. 2681; sec. 1101, * * * * * ineligible to apply for withholding of Pub. L. 107–269, 116 Stat. 2135. removal pursuant to section 241(b)(3) of (e) Determination. For the standards ■ 12. Section 1240.11 is amended by the Act and the Convention against and procedures for asylum officers in Torture. However, the alien may apply conducting credible fear interviews and adding a new paragraph (g), to read as follows: for any other relief from removal for in making positive and negative credible which the alien may be eligible. If an fear determinations, see 8 CFR 208.30. § 1240.11 Ancillary matters, applications. alien who is subject to section The immigration judges will review * * * * * 208(a)(2)(A) of the Act is ordered such determinations as provided in (g) Safe third country agreement. (1) removed, the alien shall be ordered paragraph (g)(2) of this section and 8 The immigration judge has authority to removed to the safe third country in CFR 1003.42. apply section 208(a)(2)(A) of the Act, which the alien will be able to pursue * * * * * relating to a determination that an alien his or her claims for asylum or

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protection against persecution or torture Dated: November 22, 2004. under the laws of that country. John Ashcroft, Attorney General. [FR Doc. 04–26238 Filed 11–26–04; 8:45 am] BILLING CODE 4410–30–P

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