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[Federal Register: November 29, 2004 (Volume 69, Number 228)]
[Rules and Regulations]
[Page 69479-69490]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no04-13]
[[Page 69479]]
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Part III
Department of Homeland Security
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8 CFR Parts 208, 212, and 235
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum Claims
Made in Transit and at Land Border Ports-of-Entry; Final Rule
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Department of Justice
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8 CFR Part 1003 et seq.
Asylum Claims Made by Aliens Arriving From Canada at Land Border Ports-
of-Entry; Final Rule
[[Page 69480]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208, 212, and 235
[CIS No. 2255-03]
RIN 1615-AA91
Implementation of the Agreement Between the Government of the
United States of America and the Government of Canada Regarding Asylum
Claims Made in Transit and at Land Border Ports-of-Entry
AGENCY: Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: This rule codifies specific terms of an agreement between the
United States and Canada that permits the respective governments to
manage which government decides certain aliens' requests for protection
from persecution or torture pursuant to domestic implementation of
international treaty obligations. This rule establishes U.S.
Citizenship and Immigration Services (``USCIS'') asylum officers'
authority to make threshold determinations concerning applicability of
this agreement in the expedited removal context. In addition, this rule
codifies the existing definitions of ``credible fear of persecution''
and ``credible fear of torture'' without altering those definitions.
DATES: This final rule is effective December 29, 2004.
FOR FURTHER INFORMATION CONTACT: Joanna Ruppel, Deputy Director, Asylum
Division, Office of Refugee, Asylum, and International Operations, U.S.
Citizenship and Immigration Services, 20 Massachusetts Avenue, NW,
Washington, DC 20536; Telephone (202) 272-1663.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Validity of the Threshold Screening Process
III. Detention Issues
IV. Procedural Safeguards Under the Threshold Screening Interview
Process: Arrivals from Canada
Screening Process Guarantees
Post-Interview Process
V. Adjudicating Exceptions to the Agreement
Family-Based Exceptions
Unaccompanied Minor Exception
Public Interest Exception
Valid Visa Exception
Other Exceptions
VI. Procedures for Asylum Seekers Going to and Being Returned from
Canada
Process for Asylum Seekers Bound for Canada
Process for Asylum Seekers Returned from Canada
Cost of Processing Returned Asylum Seekers
VII. Monitoring Plans
VIII. Agreement Terms Unrelated to Processing Asylum Seekers Coming
to the United States from Canada
Resettlement under the Agreement
Terminating the Agreement
IX. Miscellaneous
Resolving U.S.-Canadian Differences in Interpreting the
Agreement
Defining ``land border port-of-entry'
Aliens ``directed back'' from Canada
Indirect refoulement
X. Conforming Amendment to Part 235 of Title 8 of the Code of
Federal Regulations
I. Background
On March 8, 2004, the Secretary of Homeland Security and the
Attorney General promulgated proposed rules to implement terms of the
``Agreement Between the Government of the United States of America and
the Government of Canada for Cooperation in the Examination of Refugee
Status Claims from Nationals of Third Countries' (``Safe Third Country
Agreement'' or ``Agreement''), which, consistent with section
208(a)(2)(A) of the Immigration and Nationality Act (``Act'') (8 U.S.C.
1158(a)(2)(A)), provide for the return of certain asylum seekers to the
``country of last presence.'' 69 FR 10620, 69 FR 10627. The Agreement
is available both on the USCIS Web site, http://www.uscis.gov, and the Web site for the U.S. Embassy in Canada, http://www.usembassycanada.gov/content/can_usa/safethirdfinal_agreement.pdf.
The proposed rules outlined how the Department of Homeland Security
(DHS) and the Department of Justice (DOJ) proposed to address the
asylum, withholding of removal, and Convention Against Torture claims
(``protection claims'') of aliens seeking to enter the U.S. at U.S.-
Canada land border ports-of-entry, or in transit through the U.S.
during removal by the Canadian government, in accordance with the Safe
Third Country Agreement. The Agreement allocates responsibility between
the United States and Canada whereby one country or the other (but not
both) will assume responsibility for processing the claims of certain
asylum seekers who are traveling from Canada into the United States or
from the United States into Canada. The Agreement provides for a
threshold determination to be made concerning which country will
consider the merits of an alien's protection claim, enhancing the two
nations' ability to manage, in an orderly fashion, asylum claims
brought by persons crossing our common border. As discussed in the
Supplementary Information section in the preamble to those proposed
rules, the Agreement allocates resources and provides for prescreening
of asylum and related claims in certain instances during the expedited
removal process, where the asylum officer would determine whether any
of the Agreement's exceptions apply or whether aliens should be
returned to Canada for consideration of their protection claims. The
limited number of aliens arriving from Canada at land border ports-of-
entry or in transit during removal by the Canadian government who are
placed in removal proceedings under section 240 of the Act (8 U.S.C.
1229a) (instead of being processed through expedited removal
procedures) would have the Agreement applied to them in the first
instance by immigration judges of the Executive Office for Immigration
Review (``EOIR''), as outlined in the DOJ proposed rule at 69 FR 10627
et seq. In response to the DHS proposed rule, DHS received 7 sets of
comments from non-governmental organizations (``NGOs'') and the Office
of the United Nations High Commissioner for Refugees (``UNHCR''). While
incorporating several of the comments, this final rule implements the
basic approach discussed in the March 8 rule proposed by DHS.
The following discussion of the comments received by DHS
corresponds generally to the variety of issues raised by commenters and
is arranged into the following categories: Validity of the threshold
screening process identified in the proposed rule; issues related to
detention of asylum seekers; procedural safeguards under the threshold
screening process; adjudication of the Agreement's several exceptions
to its general rule of returning certain asylum seekers to Canada;
procedures for asylum seekers bound for and returned from Canada;
monitoring of the Agreement's implementation and impact; and Agreement
terms unrelated to processing asylum seekers coming to the United
States from Canada. Within each category, the discussion summarizes the
relevant comments and offers the Department's responses, including an
explanation of any changes made to the rule. Following the discussion
of the comments is an explanation of one minor conforming regulatory
amendment included in the final rule to ensure that existing
regulations governing the expedited removal process are consistent with
the threshold screening interview mechanism adopted in DHS'' final
rule. Many commenters took issue with the Agreement itself, challenging
its wisdom on policy grounds. This
[[Page 69481]]
Supplementary Information to the final rule, while endeavoring to
address each comment as fully as possible, does not engage in a policy
debate about the Agreement itself.
II. Validity of the Threshold Screening Process
One commenter indicated that creating a special process to assess
the applicability of the Agreement and its exceptions would result in
increased inefficiency and bureaucracy. The Department disagrees and,
to the contrary, believes that the threshold screening process is the
most efficient mechanism for implementing the Agreement. It will not
create additional bureaucracy. The threshold screening process adopts
existing processes from the credible fear process, will be a
streamlined determination, and can be transitioned seamlessly to the
credible fear process if an exception to the Agreement is found.
Other commenters argued that the new threshold screening process is
legally insufficient, if not contrary to existing laws, because it does
not occur as part of the credible fear determination and does not
provide for independent administrative review of negative decisions by
immigration judges. These commenters have concluded that the proposed
process does not, therefore, comport with statutory expedited removal
provisions. Specifically, the commenters identify sections
235(b)(1)(A)(ii) and 235(b)(1)(B) of the Act (8 U.S.C.
1225(b)(1)(A)(ii), 1225(b)(1)(B)), which provide that asylum officers
shall interview arriving aliens who are inadmissible under section
212(a)(6)(C) or 212(a)(7) of the Act (8 U.S.C. 1182(a)(6)(C),
1182(a)(7)) and who indicate either an intention to apply for asylum or
a fear of persecution in order to determine whether such aliens have a
``credible fear of persecution,'' and further provide that negative
credible fear determinations may be reviewed by immigration judges.
Similarly, arriving aliens who express a fear of torture are subject to
these same procedures as a matter of regulation. 8 CFR 208.30(e).
While the Department agrees that these provisions generally do call
for the administration of credible fear interviews to those aliens in
expedited removal processing who express an intent to apply for asylum
or a fear of persecution or torture, a careful reading of the Act makes
clear that credible fear interviews are not required for aliens subject
to the Safe Third Country Agreement. Under section 208(a)(1) of the Act
(8 U.S.C. 1158(a)(1)), any alien physically present in or arriving in
the United States may apply for asylum in accordance with that section,
or where applicable, section 235(b) of the Act (8 U.S.C. 1225(b)). The
following paragraph, section 208(a)(2)(A) of the Act (8 U.S.C.
1158(a)(2)(A)), however, creates an exception to this generally
permissive asylum filing standard, revealing Congress' intent that an
alien may not apply for asylum in accordance with section 235(b) (8
U.S.C. 1225(b)) if the alien ``may be removed, pursuant to a bilateral
or multilateral agreement, to a country * * * in which the alien's life
or freedom would not be threatened. * * * Section 235(b)(1)(B)(ii) of
the Act (8 U.S.C. 1225(b)(1)(B)(ii)) states that, when an alien
successfully completes the credible fear interview process, ``the alien
shall be detained for further consideration of the application for
asylum.'' (emphasis added). Clearly, then, the credible fear interview
process constitutes the initiation of the asylum application process
described in section 208(a)(1) or the Act (8 U.S.C. 1158(a)(1)). For
this reason, and in light of section 208(d)(5)(B)'s (8 U.S.C.
1158(d)(5)(B)) authorization to promulgate regulations that impose
``conditions or limitations on the consideration of an application for
asylum,'' as long as they are ``not inconsistent with this Act,'' the
Department finds the threshold screening interview process described in
the proposed rule to be in accord with the Act.
A closely related comment raised by some commenters is the request
that the rule include an independent review or appeals process for
asylum officer findings that an alien does not meet one of the
Agreement's exceptions and is, accordingly, ineligible to pursue an
asylum application via the credible fear interview process. The
Department believes that, given the narrow legal and factual issues
present in the threshold screening process, review of an asylum
officer's threshold determination by a supervisory asylum officer will
adequately serve to ensure that proper decisions are made on this
limited issue. In light of the comments received, the requirement that
a supervisory asylum officer must concur in the asylum officer's
finding that the alien is subject to return to Canada under the
Agreement has been expressly added to the final rule at 8 CFR
208.30(e)(6)(i).
III. Detention Issues
Several commenters addressed the issue of detention. For instance,
some commenters suggested adding to the rule the statement that asylum
seekers subject to the Agreement generally should not be detained.
Another commenter advocated a mechanism for the Department to refer
individuals entering the United States or being returned by Canada
under the Agreement to NGOs in the United States, to facilitate
alternatives to detention. Commenters also expressed concern about the
detention of returnees from Canada. One commenter would have the rule
prohibit detention of this group under any circumstances, while another
suggested that the Department only detain returnees under exceptional
circumstances, and, if detention is necessary, to avoid detention in
local and county jails. The Agreement does not amend the detention
authority under sections 236, 236A and 241 of the Act (8 U.S.C. 1226,
1226a, 1231) or require that DHS alter its current detention policies
or practices. No amendments to the detention regulations were proposed
in the proposed rule, and any changes in these regulations would
require a new proposed rule. After reviewing the comments, DHS is not
convinced that there is any reason to amend the detention provisions of
the regulations because of the implementation of the Agreement or this
rule. The comments do not articulate any legitimate basis for treating
aliens without lawful immigration status in the United States who are
returned under the Agreement differently from other asylum seekers in
the United States without lawful immigration status.
IV. Procedural Safeguards Under the Threshold Screening Interview
Process: Arrivals From Canada
Screening Process Guarantees
Several commenters were concerned that the rule does not specify
that individuals arriving from Canada would receive the same procedural
safeguards in the threshold screening interview process that are
provided to arriving aliens who receive credible fear interviews. In
particular, the Department was urged to incorporate, in the final rule,
the following such safeguards: Option to consult with a person of the
alien's choosing; sufficient time to contact a consultant, relative, or
relevant advocates, at no expense to the U.S. government; sufficient
time to prepare for the eligibility interview; an assurance that the
interview would not occur sooner than 48 hours after the asylum
seeker's arrival at a detention facility, unless the individual waives
this preparation period; the ability to request that the threshold
screening interview be postponed, which the Department should grant if
there are good reasons to do so; use of an
[[Page 69482]]
interpreter; explanation of and guidance on the interview procedure;
and the issuance of a reasoned written decision.
The Department has clarified, in the final rule, that the same
safeguards accorded to aliens who are eligible for a credible fear
determination will be accorded to aliens who receive threshold
screening interviews. However, the suggestion that the threshold
screening interview be postponed upon an alien's request has no
parallel in the sections of 8 CFR 208.30 outlining the credible fear
process. Also, this suggestion would compromise the principle
underlying the Agreement that aliens be returned promptly to the
country of last presence; therefore, it will not be incorporated into
the final rule. In appropriate cases, the Department may exercise its
discretion to delay the threshold screening process where the delay is
justified.
One commenter recommended that the final rule include a statement
requiring the Department to accommodate reasonable requests for
assistance in securing evidence in support of an asylum seeker's claim
arising from the asylum seeker's detention. For example, an asylum
seeker may need access to a telephone or fax machine to secure evidence
establishing relationships, a family member's legal status, or the
asylum seeker's age. The Department currently provides access to
telephones to detained asylum seekers who are subject to expedited
removal. If additional assistance is needed, such as access to a fax
machine, an asylum officer may be able to facilitate such access.
However, the Department does not believe it is necessary to incorporate
this suggestion into the final rule, because it is operational in
nature and instead will be incorporated into field guidance upon
implementation of the rule.
Post-Interview Process
One commenter suggested that the rule should clarify that return to
Canada under the Agreement would not render a person inadmissible to
the United States on that basis. While the Agreement does not address
matters of inadmissibility, the Department may only remove aliens from
the United States using a mechanism provided by Congress. Generally,
for aliens arriving in the United States without valid documents
required for admission, expedited removal under section 235(b) of the
Act (8 U.S.C. 1225(b)) is the removal mechanism provided by Congress. A
removal order under section 235(b) of the Act would, as a matter of
law, constitute a temporary inadmissibility ground under section
212(a)(9)(A)(i) of the Act (8 U.S.C. 1182(a)(9)(A)(i)). Waivers and
exceptions to this inadmissibility ground do exist and will be
considered by the Department on a case-by-case basis, consistent with
existing regulations and operational directives. Similarly, discretion
exists on the part of Customs and Border Protection (``CBP'') officers
to allow aliens to withdraw their applications for admission (so that
they would face no admissibility bar to a subsequent admission to the
United States) and this discretion will continue to be used on a case-
by-case basis.
Another commenter recommended that either the final rule or
operating procedures should include a mechanism for reconsideration by
the Department of its decision to remove an asylum seeker to Canada
following a decision that he or she does not qualify for one of the
Agreement's exceptions if new evidence subsequently becomes available.
The Department plans to continue working with its Canadian counterparts
to establish common procedures to resolve matters like these at the
local level through operational guidance.
V. Adjudicating Exceptions to the Agreement
A substantial number of the comments to the proposed rule concerned
the interpretation and adjudication of Agreement exceptions for asylum
seekers arriving at land border ports-of-entry. These comments
corresponded roughly to the specific exceptions themselves, and can be
addressed with reference to the following categories: family unity;
unaccompanied minors; public interest; validly issued visas; and other
exceptions. Many of the concerns evident from these comments were
raised initially at meetings with NGOs, including a public meeting in
August 2002, before the Agreement was signed. The Department carefully
considered several of the issues outlined in these comments at that
time and incorporated many suggestions into the text of the Agreement.
Family-Based Exceptions
Many commenters believe that the rule should define ``family
member'' broadly and in a more culturally sensitive manner that
reflects the reality of the refugee experience. For example, one
commenter recommended considering ``de facto'' family members as
eligible anchor relatives within this exception, or, in the
alternative, as part of the public interest exception. The definition
of ``family member'' was the subject of prolonged discussion while
negotiating the Agreement. The United States delegation advocated and
succeeded in achieving a definition much broader than the class of
family members recognized for other purposes under United States and
Canadian immigration law. During negotiations, both Canada and the
United States took into account the reality that different cultures
define ``family member'' differently. Given the specificity of the
Agreement's enumerated relationships in its ``family member''
definition, the Department will not now, in effect, unilaterally amend
the Agreement's definition by means of this rule to include additional
individuals. The Department's position is that using the regulatory
process to create new definitions at this stage would serve to
undermine the compromise represented by this carefully negotiated,
bilateral agreement.
Other commenters suggested including ``cousins'' as part of the
``family member'' definition in the rule. As explained above, the
Agreement's list of who may qualify as an anchor ``family member'' is
not subject to amendment by the rule. For the same reason, the
Department will not include, as suggested in a separate comment,
``other close relatives'' to the list of family members.
Several commenters recommended that the rule specifically include a
``common-law partners'' exception, as it is included in the Canadian
regulations' definition of ``family member.'' Canada has included
common-law partners in the definition of ``family member'' in the
Canadian regulations implementing the Agreement because this
relationship has often been recognized as a matter of Canadian law.
Article 1 of the Agreement provides that each Party will apply the
Agreement's family member exceptions in a manner that is consistent
with its national law. While valid foreign marriages, including common
law marriages, are generally given effect under U.S. immigration law,
see Matter of H-, 9 I&N Dec. 640, 641 (BIA 1962); but see section
101(a)(35) of the Act (8 U.S.C. 1101(a)(35)), U.S. federal law
precludes use of the terms ``marriage'' or ``spouse'' to refer to same-
sex partnerships. See Defense of Marriage Act, Public Law 104-199,
section 3, 110 Stat. 2419 (1996) (providing that, for purposes of
federal law, ``'marriage'' means only a legal union between one man and
one woman as husband and wife, and * * * `spouse' refers only to a
person of the opposite sex who is a husband or a wife.''). Because the
Department cannot promulgate regulations that are contrary
[[Page 69483]]
to law, the Department did not adopt the commenters' suggestion to add
a ``common-law partner'' interpretation of the term ``spouse,'' as used
in the Agreement's family member exceptions.
A few commenters believe that the rule should eliminate the
Agreement's age and immigration status limits on anchor relatives,
reasoning that the limits result in separating families when children
cannot serve as anchors for their parents. Both countries have
expressed their concern for reuniting separated families. To that end,
both intend to work with the UNHCR and NGOs to monitor the Agreement's
effect, addressing this potential problem operationally rather than by
regulation. A key reason that age limits were included in the
Agreement's family unity exceptions was that neither government wanted
to trigger an increase in the smuggling and trafficking of minors, sent
ahead by family members for the purpose of serving as anchors in either
country. Further, the requirement that anchor relatives hold lawful,
non-visitor immigration status derives from the negotiated Agreement
terms, see art. 4, para. 2(a), which will not be modified through the
rule-making process.
Unaccompanied Minor Exception
Some commenters felt that the rule should expand the Agreement's
definition of ``unaccompanied minor'' to include a minor who is
``separated from both parents and is not being cared for by an adult
who by law has the responsibility to do so.'' The Department declines
to incorporate this change to the Agreement's definition into the final
rule. The Agreement's definition of ``unaccompanied minor,'' as
explained in the Supplementary Information accompanying the proposed
rule, differs from the definition customarily used for purposes of U.S.
immigration processing. As previously explained, the definitions in the
Agreement were carefully negotiated with the Canadian government and
the Department will not use the rule-making process to alter
unilaterally the clear definitions in the Agreement. However, by
applying DHS'' customary operational definition to unaccompanied minors
seeking asylum so that they are generally referred for a hearing by an
immigration judge in proceedings under section 240 of the Act (8 U.S.C.
1229a), the Department is providing them ample process to explain
whether they meet one of the Agreement's exceptions and to present
their protection claims.
The same commenters also recommended that the rule should shift the
burden of proof concerning the location of an unaccompanied minor's
parents from the unaccompanied minor to the government, requiring the
government to demonstrate that the unaccompanied minor is in the care
of his or her parents or is following to join them. While the
Department understands the need to proceed with heightened restraint
and sensitivity in the cases of unaccompanied minors, there is concern
that this recommendation could adversely affect the unaccompanied minor
by resulting in fact-finding delays before a final determination. The
child likely will have more information than DHS as to the location of
his or her parents and therefore it is more appropriate for the child
to bear the burden of proof in establishing the parents' locations.
Moreover, aliens in removal proceedings--regardless of age--generally
bear the burden of proving their admissibility to the United States, 8
U.S.C. 1129a(c)(2), and, similarly, applicants for asylum, withholding
of removal, and protection under the Convention Against Torture, bear
the burden of proof to establish eligibility, even in cases where the
applicant is a child. The commenters did not provide sound rationales
for shifting the burden of proof for purposes of establishing that an
exception to the Agreement applies.
These commenters also suggested that the rule include a mechanism
for determining a child's relationship to an accompanying adult or to
individuals present in the United States or Canada, including an
interview with a child welfare specialist, if the child arrives at the
border with an individual who is not his or her legal guardian. The
mechanism, they suggest, should include procedures to identify
potential family members and determine their suitability to serve as
the child's guardian. The Department agrees that this is an area
requiring further consideration; however, the issues surrounding
identification of individuals accompanying alien children and
verification of relationships between adults and children are broader
than the scope of this rule and are not unique to those children
subject to this rule. These issues may be raised at all borders, and
all ports-of-entry, even in the case of aliens with lawful status here.
Therefore, these issues would be more appropriately addressed
systemically, as a coordinated effort among the Department's various
agencies to create a uniform approach, rather than within this rule.
Consequently, the Department declines to incorporate the process
proposed by commenters within the rule.
Many commenters, as previously stated, urged the Department to
consider ``separated children,'' who are not with either parent or with
an adult responsible for their care, as part of the discretionary
public interest exception under Article 6 of the Agreement. The
Department is sensitive to the unique issues facing unaccompanied
minors and will proceed carefully in cases where an unaccompanied minor
arriving in the United States appears to be a ``separated child.'' The
Department will consider, on a case-by-case basis, whether such a child
might meet the Agreement's public interest exception.
Public Interest Exception
Many of the commenters recommended that the rule should state that
``humanitarian concern is a public interest.'' The Department believes
that the Agreement's public interest exception is best administered
through operational guidance and on an individualized, case-by-case
basis, but does acknowledge that ``humanitarian concern'' is certainly
an important consideration to factor in to a public interest
assessment.
Some commenters suggested that the rule include a non-exhaustive
list of categories that would merit consideration under the public
interest exception. Three of the suggested categories--common-law
spouses, de facto family members, and separated children with parents
or legal guardians in the U.S. who are ineligible to serve as anchors--
were addressed above in the discussion replying to comments about the
proposed rule's sections concerning the ``family member'' and
``unaccompanied minor'' exceptions.
Other categories suggested by commenters for consideration under
the public interest exception include:
a. Cases where effective protection cannot be guaranteed in Canada
because of that country's asylum laws; and, similarly, cases where U.S.
law and practice are not consistent with Canadian law and practice;
b. Cases in which the anchor relatives are under age 18 and have
pending asylum applications;
c. Cases of survivors of torture; and
d. Cases of individuals with physical and psychological health
needs.
Issues of minor anchor relatives, past torture, and health needs
are some of the factors that may be considered under the Agreement's
public interest exception, along with all other relevant circumstances,
on a case-by-case basis. The intent behind this provision of the
Agreement was to allow each
[[Page 69484]]
government to make case-by-case determinations with broad discretion.
Had the parties' intent been to include the broad categories of
individuals listed above, the categories would have been spelled out in
the Agreement in the same manner as the other exceptions.
For reasons stated in the Supplementary Information to the proposed
rule, the Department does not consider differences in Canadian and U.S.
protection laws germane to decisions made under the Agreement. The
commenters urged, with respect to this suggestion, that the rule
include a mechanism for the UNHCR and NGOs to help the Department
analyze Canadian law and practice, including approval rates by
nationality and basis for approval, to ensure that the Department
exercises discretion in cases where there are discrepancies with U.S.
law. The Department will not apply the public interest exception in a
manner that would undermine the Agreement's allocation of
responsibility for adjudication of protection claims. Also, as
explained in the Supplementary Information to the proposed rule,
differences in our protection systems were contemplated by the United
States and Canada during negotiations. In either country, asylum
seekers will have their protection claims fully and fairly considered.
Other commenters suggested specific procedures in the rule
concerning the exercise of discretion, in the public interest, to allow
an individual to pursue a protection claim in the United States. One
recommended explaining who specifically may exercise this discretion,
and the other called for a clear procedure between EOIR and DHS to
ensure that the Department properly considers cases pending before EOIR
for the public interest exception. In response to these suggestions,
the final rule has been amended at 8 CFR 208.30(e)(6)(iii)(F) to
specify that the Director of USCIS, or the Director's designee, will be
responsible for DHS determinations made under the Agreement's public
interest exception. Any party wishing to present a case for
consideration under this exception should provide relevant case
information to the Director's office or that of his or her designee.
Valid Visa Exception
One commenter noted that the rule should define ``validly issued
visa'' so as not to link the validity of its issue to the asylum
seeker's presumed subjective intentions. For example, U.S. immigration
authorities have determined in some instances that valid tourist or
business visas were obtained by ``fraud'' because of the visa holder's
true intent to seek asylum. For the limited purposes of applying this
exception to the Agreement, USCIS will construe the term ``validly
issued'' to refer to visas that are genuine (i.e., not counterfeit) and
were issued to the alien by the U.S. government.
Other Exceptions
One commenter forwarded comments made in response to a review of an
earlier draft of the Agreement in 2002, in which it recommended that,
to avoid the separation of families and minimize social and economic
costs for states, the Agreement add a transit exception. Additionally,
the commenter suggested a ``community support contact'' exception,
which could include friends or colleagues willing to submit statements
about their willingness to support the asylum seeker during the
process. A transit exception would effectively invalidate the
Agreement, as the Agreement's stated purpose is quite clearly to return
asylum seekers to the ``country of last presence.'' With respect to the
``community support contact'' exception, the Department reiterates that
the exceptions to the Agreement were determined through careful
negotiations with the Canadian government, and that to create
additional exceptions through rule-making would serve to undermine the
process. Therefore, the Department declines to adopt this
recommendation.
VI. Procedures for Asylum Seekers Going to and Being Returned From
Canada
Process for Asylum Seekers Bound for Canada
Several commenters recommended that the rule include a mechanism
whereby the Department could refer Canada-bound asylum seekers to NGOs
in the United States for assistance in locating relatives and providing
advice regarding eligibility before arriving at a land border port-of-
entry. The commenters do not explain how the Department would identify
these asylum seekers and implement this recommendation. While the
Department appreciates the participation of NGOs in the process to date
and will continue to seek their assistance to educate populations
likely to be affected by the Agreement, it will not adopt this
recommendation, because it would be administratively impracticable to
implement and could unnecessarily delay travel for thousands of
individuals crossing from the United States to Canada. U.S. officials
generally do not stop and address individuals leaving the United States
to go to Canada. Even if immigration officials were to stop individuals
traveling from the United States into Canada, it is unclear how they
would identify those who intend to seek asylum in Canada--certainly a
minimal portion of individuals crossing the border each day--in order
to refer them to an NGO.
Process for Asylum Seekers Returned From Canada
Several commenters expressed a desire to have the rule clarify the
process affecting those asylum seekers who are determined to be
ineligible by Canada and returned to the United States--the group
anticipated to constitute the majority of asylum seekers affected by
the Agreement. One non-governmental organization recommended that the
rule guarantee that these individuals be exempt from the expedited
removal process.
The Department declines to codify the process affecting those
returned to the United States under the Agreement, because existing
regulations already govern how they will be treated by DHS. For
purposes of U.S. immigration law, these returnees will be in the same
position they would be in had they not left the United States. As the
Department stated in the Supplementary Information to the proposed
rule, individuals returned from Canada to the United States, with the
rare exception noted below, will not be subject to expedited removal
because they will not meet the definition of ``arriving alien.''
Depending on the individual's immigration status in the United States,
he or she may be subject to removal proceedings under section 240 of
the Act (8 U.S.C. 1229a). However, it is not possible, practical or
advisable for the Department to codify such a guarantee in this rule.
There may be a rare circumstance in which the expedited removal
provisions of the Act would apply. For example, someone initially
paroled into the United States may attempt to enter Canada and then be
returned to the United States after his or her parole period here
expired. Such a person, as an individual whose parole period has
expired, may be subject to expedited removal. 8 U.S.C. 1182(d)(5)(A),
1225(a)(1)-(b)(1)(A)(i); 8 CFR 1.1(q).
Many commenters suggested that the rule include a mechanism to
enable Canada, in the event that it decides that the Agreement
exceptions are inapplicable to an individual alien, to address any
possible errors in its decision or consider new information offered by
the alien that he or she
[[Page 69485]]
qualifies for an exception and is eligible to present a protection
claim in Canada. DHS regulations do not govern Canadian authorities. It
would be inappropriate for DHS regulations to outline a mechanism for
the Canadian authorities to correct errors or address new information.
Nonetheless, the Canadian and United States governments have agreed to
consult with each other on these matters and to address them
operationally.
One commenter also stressed that, in this context, the Department
should release detainees or provide transport to the nearest land
border port-of-entry if Canada agrees to reconsider a claim and
requires the asylum seeker's presence at the border. Release of
detainees will be determined on a case-by-case basis, depending on the
facts of the case and applicability of immigration laws. Should an
individual be released, the logistics for how that person will get to
the border is best determined on a case-by-case basis and through
operational, as opposed to regulatory, guidance.
Cost of Processing Returned Asylum Seekers
The majority of the commenters disagreed with the proposed rule's
assessment of the costs that will result from the rule's
implementation, as outlined in the proposed rule's determination made
under Executive Order 12866. They allege that certain tangible costs--
including increases in adjudications, detention, Border Patrol
deployment, and criminality--were not adequately addressed. They argue
that, among the intangible costs of this Agreement that were ignored by
the proposed rule, are the increased risks to life and safety of those
seeking to enter either country outside land border ports-of-entry, and
the potential for the Agreement to attract more smugglers and
traffickers, which would make this land border more dangerous.
The costs identified in discussing Executive Order 12866 were the
costs associated with implementation of the provisions proposed in the
rule, not the costs associated with the Agreement itself. The proposed
and final rules are focused solely on asylum seekers seeking to enter
the United States who may be returned to Canada pursuant to the
Agreement, not those who are returned from Canada pursuant to the
Agreement or who seek to cross the border illegally. As such, those
costs were properly not considered in addressing Executive Order 12866.
However, the United States Government carefully considered all of the
potential costs identified by the commenters before it entered into the
Agreement and determined that the benefits of the Agreement outweigh
its costs.
VII. Monitoring Plans
Nearly all of the commenters recommended that the rule explicitly
refer to the UNHCR's monitoring role, as specified in Article 8 of the
Agreement. They added that the rule should specify exactly what type of
information the UNHCR will receive, such as numbers of applicants,
their ages, their countries of origin, and the disposition of their
eligibility and credibility determinations. They also recommended that
the rule establish a timetable for the reports, preferably quarterly or
whenever a special situation warrants one. In addition, the commenters
recommended that the rule authorize the UNHCR to monitor eligibility
and credibility determinations and to intercede in cases in which it
believes erroneous decisions were made. The same commenters also felt
that the rule should allow NGOs to operate as the UNHCR's implementing
partners to monitor the Agreement.
The Department has not incorporated these recommendations into this
rule, but plans to take them into consideration when finalizing its
arrangements with Canada and the UNHCR concerning monitoring of the
Agreement. The Department also would welcome the assistance and input
of NGOs. It is fully the intent of the Department to abide by the
Agreement, which, at Article 8, provides that ``The Parties shall
cooperate with UNHCR in the monitoring of this Agreement and seek input
from non-governmental organizations.'' The Department values the
longstanding consultative, cooperative relationship the UNHCR has had
with the U.S. government, which includes monitoring the United States'
application of the Convention Relating to the Status of Refugees, Jul.
28, 1951, 189 U.N.T.S. 150 (``Refugee Convention''). For example, the
UNHCR recently monitored and analyzed the expedited removal process and
made several useful recommendations for the Department. However, the
Department considers it inappropriate to codify the nature of this
relationship, or the relationship between the Department and the NGO
community, in these rules. Details of monitoring plans often change and
develop over time, as unforeseen events arise, and those involved in
the monitoring plan identify methods, consistent with evolving events,
to better gather and analyze data. As such, it is more appropriate to
include details of such plans in formal action plans and memoranda. One
comment suggested that the rule include a monitoring plan concerning
smuggling and trafficking developments. As stated earlier, the
Department is aware of the potential for increased smuggling and
trafficking after the Agreement is implemented and intends to monitor
these developments. The Department does not believe, however, that it
is appropriate to codify such a monitoring plan in regulations for the
same reasons noted above.
VIII. Agreement Terms Unrelated to Processing Asylum Seekers Coming to
the United States From Canada
Resettlement Under the Agreement
Most commenters wanted the rule to include details concerning the
implementation of the resettlement side agreement addressed in Article
9 of the Agreement. Another commenter recommended that the Department
of State introduce its own proposed rule to implement the resettlement
agreement.
This comment concerns an issue separate and distinct from that of
returning asylum seekers to the country of last presence. The scope of
this rule will remain limited to implementing the Agreement's terms as
they concern two limited categories of asylum seekers: Those seeking
entry to the United States at a land border port-of-entry on the
Canadian border and those who seek protection while being removed from
Canada and transiting through the United States.
Terminating the Agreement
One commenter suggested that the rule include criteria to determine
whether the Agreement should be cancelled because of negative impacts,
particularly any increase in smuggling or trafficking. Another made a
similar, though less specific suggestion, that the rule should include
procedures for revising or terminating the Agreement, should that prove
necessary. One commenter added that the Department of State should
propose its own separate rule concerning the procedures for suspending
or terminating the Agreement, including adequate or appropriate
termination grounds.
With respect to termination procedures, Article 10 of the Agreement
between the United States and Canada specifically provides that
termination may occur with six months' written notice from either
party, and that three months' written notice would result in
suspension. It would be inappropriate for the U.S. Government to
negotiate an Agreement with Canada and then unilaterally adopt specific
criteria that would result in the Agreement's termination. The efficacy
and ongoing commitment to an international
[[Page 69486]]
agreement is a matter of foreign policy of the United States, the
proper subject of diplomacy, and inappropriate for regulation under the
Administrative Procedure Act (5 U.S.C. 551-59, 701-06, 1305, 3105,
3344, 5372, 7521).
IX. Miscellaneous
Resolving U.S.-Canadian Differences in Interpreting the Agreement
Most commenters agreed that the rule should provide a detailed
mechanism to resolve differences between Canada and the United States
regarding the interpretation and implementation of the Agreement. In
accordance with the second paragraph of Article 8 of the Agreement,
which provides that standard operating procedures ``shall include
mechanisms for resolving differences respecting the interpretation and
implementation of the terms of this Agreement,'' the Department intends
to cooperate with its Canadian colleagues to address and resolve
differences in the same spirit in which the Agreement was negotiated.
As reflected in the Agreement itself, resolution of such differences is
more appropriately addressed through operating procedures than through
the promulgation of regulations.
Defining ``Land Border Port-of-Entry''
Over half of the commenters suggested that this rule provide a
definition of ``land border port-of-entry,'' as that term is used in
the Agreement. Prior regulatory attempts to define ``port-of-entry''
have done so in reference to geographical locations where federal
officers have authority to perform their official functions. For
example, in the customs regulations at 19 CFR 101.1, this term simply
``refer[s] to any place designated by Executive Order of the President,
by order of the Secretary of Treasury, or by Act of Congress, at which
a Customs officer is authorized to * * * enforce the various provisions
of the Customs and navigation laws.'' Pursuant to this approach of
port-of-entry designation, these regulations enumerate specific ports-
of-entry that have been designated as ``Customs port of entry.'' 19 CFR
101.3(b)(1). Existing immigration regulations take a similar approach,
defining ``ports-of-entry'' with an exhaustive list of locations,
broken down into three ``classes.'' 8 CFR 100.4(c)(2). These
definitional approaches reveal the difficulty of providing one uniform
definition of ``port-of-entry.'' Indeed, beyond the fact of CBP
officers' presence, ``ports-of-entry'' can vary in nearly every way
imaginable. For instance, some ports-of-entry may sit on federally
owned property, while others may be located on private or municipally
owned property. Similarly, some land ports-of-entry border waterways or
bridges, while others are located on busy highways or railroad tracks,
while still others are situated in remote, rural areas. Given the
impracticability of a one-size-fits-all definitional approach to ``land
border ports-of-entry,'' the Department will rely on the current
definitions of 8 CFR 100.4(c)(2) and 19 CFR 101.3(b)(1) in implementing
the Agreement. Thus, where an alien arrives at a ``port-of-entry,'' as
designated in one of these regulatory provisions, which is located at
the shared U.S.-Canada border, the alien will be subject to the
Agreement. Aliens apprehended in the immediate vicinity of such ports-
of-entry attempting to avoid inspection will, where reasonable, be
regarded as having ``arrive[d] at a land border port of entry'' and,
consequently, be subject to the Agreement. Finally, the Department
intends to work closely with the Canadian government to provide
operational guidance concerning the Agreement's applicability in
marginal cases.
Aliens ``Directed Back'' From Canada
Two commenters raised the issue of aliens ``directed back'' by the
Canadian government pending an interview by Canadian immigration
officials. These commenters explained that, while Canadian authorities
generally interview an alien who requests protection at the time he or
she seeks to enter Canada from the United States, Canadian authorities
have had occasion to direct such aliens back to the U.S. for future
interview appointments in Canada during periods of increased attempted
migration that outstrip Canadian processing resources. According to
these commenters, such an increase is possible during the period
immediately preceding Agreement implementation. The commenters have
therefore requested that the Department work to accommodate such
aliens' attempts to enter Canada for a consideration of their
protection claims. The Department will not adopt this suggestion. As
discussed in the Supplementary Information to the proposed rule and,
again, earlier in the Supplementary Information to this final rule,
aliens who unsuccessfully attempt to enter Canada do not alter their
immigration status by the attempted entry. Thus, if an alien who is
present in the U.S. without having been inspected and admitted (or
paroled) by an immigration officer unsuccessfully attempts to enter
Canada, then he or she remains an unlawfully present alien subject to
removal from the United States under sections 212(a)(6)(A)(i) and
240(a) of the Act (8 U.S.C. 1182(a)(6)(A)(i), 1229a(a)), just as if an
immigration officer had apprehended the alien before he or she sought
to enter Canada. An alien's appointment with Canadian immigration
officials, while relevant to the Department's prosecutorial discretion
concerning any decision to place the alien in removal proceedings, does
not confer legal status upon an unlawfully present alien.
Indirect Refoulment
One commenter argued that returning aliens to Canada under the
Agreement would constitute ``indirect'' refoulment, and would therefore
violate U.S. obligations under the Refugee Convention and the Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.S. 6223
(``Refugee Protocol''). The Department disagrees. Article 33 of the
Refugee Convention obligates the U.S., through its accession to the
Refugee Protocol, not to ``expel or return (`refouler') a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.'' (emphasis supplied). Absent some claim that an alien's life
or freedom would be threatened in Canada, which the commenter did not
suggest, the return of the alien to Canada for a full and fair
consideration of his or her protection claims is consistent with U.S.
obligations.
X. Conforming Amendment to 8 CFR Part 235
In preparing this final rule, the Department determined that 8 CFR
235.3(b)(4) must also be amended to reflect the proposed rule's use of
a threshold screening interview mechanism preceding the initiation of
credible fear interviews for those aliens in expedited removal
proceedings who are subject to the Safe Third Country Agreement. This
existing regulatory provision explicitly makes reference to a CBP
officer's referral of protection claims for a ``credible fear''
determination under 8 CFR 208.30. As aliens subject to expedited
removal who are covered by the Agreement must first pass a threshold
screening interview to determine whether their protection claims may be
considered in the U.S., 8 CFR 235.3(b)(4) has been revised to refer
more generally to 8 CFR 208.30 without reference to the credible fear
process. This amendment ensures that the expedited removal regulations
conform
[[Page 69487]]
to the threshold screening interview process explained in the proposed
rule.
Regulatory Flexibility Act
DHS has reviewed this rule in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)) and by approving it, DHS certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. This rule, which relates to
asylum claims, applies to individual aliens only. As such, a
substantial number of small entities, as that term is defined in 5
U.S.C. 601(6), will not be affected by the rule.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one-year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
The Department of Homeland Security has determined that this rule
is a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review, and, accordingly, this
rule has been submitted to the Office of Management and Budget for
review. In particular, the Department has assessed both the costs and
benefits of this rule as required by Executive Order 12866, section
1(b)(6) and has made a reasoned determination that the benefits of this
rule justify its costs.
The rule implements a bilateral agreement that allocates
responsibility between the United States and Canada for processing
claims of certain asylum seekers by codifying the process by which
individuals seeking entry into the United States, or being removed by
Canada in transit through the United States, may be returned to Canada
pursuant to the Agreement. The rule applies to individuals who are
subject to expedited removal and, under existing regulations, would
receive a credible fear interview by an asylum officer. This rule
simply provides a preliminary screening by asylum officers to determine
whether the alien is even eligible to seek protection in the United
States, in which case the asylum officer will then proceed to make the
credible fear determination under existing rules. Based on statistical
evidence, it is anticipated that approximately 200 aliens may seek to
enter the United States from Canada at a land border port-of-entry and
be placed into expedited removal proceedings. A significant number of
these aliens will be found exempt from the Agreement and eligible to
seek protection in the United States after the threshold screening
interview proposed in this rule. It is difficult to predict how many
aliens will be returned to Canada under the Agreement, but the costs
incurred in detaining and transporting them are not likely to be
substantial. Therefore, the ``tangible'' costs of this rulemaking to
the U.S. Government are minimal. Applicants who are found to be subject
to the Agreement will be returned to Canada to seek protection, saving
the U.S. Government the cost of adjudicating their asylum claims and,
in some cases, the cost of detention throughout the asylum process.
The cost to asylum seekers who, under the rule, will be returned to
Canada are the costs of pursuing an asylum claim in Canada, as opposed
to the United States. There is no fee to apply for asylum in Canada
and, under Canadian law, asylum seekers are provided social benefits
that they are not eligible for in the United States, including access
to medical coverage, adult public education, and public benefits.
Therefore, the tangible costs of seeking asylum in Canada are no
greater than they are in the United States. The ``intangible'' costs to
asylum seekers who would be returned to Canada under the proposed rule
are the costs of potential separation from support networks they may be
seeking to join in the United States. However, the Agreement contains
broad exceptions based on principles of family unity that would
generally allow those with family connections in the United States to
seek asylum in the United States under existing regulations governing
the credible fear process.
The Executive Order 12866 cost analysis captures the costs which
apply to those instances where an alien requests protection from the
United States government under one of two scenarios: when arriving at a
port-of-entry on the United States-Canada land border; or, when
transiting through the United States as part of the Canadian
government's effort to remove the alien to a third country. In either
scenario, the rule provides asylum officers with authority to make
basic, threshold screening determinations about how the Agreement
applies to the alien. Although additional costs may be incurred as part
of the Safe Third Country Agreement between the United States and
Canada, the costs discussed in the Executive Order 12866 are limited to
those costs arising under the two scenarios outlined in the rule and
not the cost impact of the overall Agreement between the two countries.
The Agreement provides for a threshold determination to be made
concerning which country will assume responsibility for processing
claims of asylum seekers. This rule only clarifies the threshold
screening determination for a United States asylum officer when
determining whether an alien should be returned to Canada. It is
unclear how many individuals will seek asylum in the United States from
Canada. Similarly, the Agreement permits Canada to return to the United
States certain asylum seekers attempting to enter Canada from the
United States at a land border port-of-entry. The Department does not
know how many asylum seekers Canada will return to the United States.
As discussed in the proposed rule and above, individuals returned from
Canada to the United States will be in the same position as they would
be in had they not sought entry in Canada. This analysis is beyond the
purview of the rule. However, the Department will continue to monitor
the costs associated with handling asylum seekers at land border ports-
of-entry.
The Department recognizes that there have been pre-existing
periodic costs associated with the departure of aliens from the United
States to Canada for purposes of seeking asylum, particularly during
the period in which the National Security Entry-Exit Registration
System (NSEERS) was operating. These costs arose when, during a period
of increased attempted migration to Canada from the United States, the
Government of Canada decided not to admit asylum seekers until they
could be scheduled for interview appointments. The Department
recognizes that many of these costs were directly borne by aliens,
State and local agencies, and nonprofit organizations. While costs
similar to those incurred in the past may be borne by aliens attempting
to enter Canada before the
[[Page 69488]]
Agreement becomes effective, they are not affected by the terms of this
rule. However, the Department will continue to monitor the costs
associated with handling asylum seekers at land border ports-of-entry.
The rule benefits the United States because it enhances the ability
of the United States and Canada to manage, in an orderly fashion,
asylum claims brought by persons crossing our common border. By
implementing the Agreement, the rule furthers U.S. and Canadian goals,
as outlined in the 30-Point Action Plan under the Smart Border
Declaration signed by Secretary Ridge and former Canadian Deputy
Foreign Minister John Manley, to ensure a secure flow of people between
the two countries while preserving asylum seekers' access to a full and
fair asylum process in a manner consistent with U.S. law and
international obligations.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The regulations at 8 CFR 208.30 require that an asylum officer
conduct a threshold screening interview to determine whether an alien
is ineligible to apply for asylum pursuant to section 208(a)(2)(A) of
the Act (8 U.S.C. 1158(a)(2)(A)). The threshold screening interview is
considered an information collection under the Paperwork Reduction Act
(PRA) of 1995. On March 8, 2004, the Department of Homeland Security,
published a proposed rule in the Federal Register to provide USCIS
asylum officers' with authority to make threshold determinations
concerning applicability of the Agreement Between the Government of the
United States of America and the Government of Canada regarding asylum
claims made in transit and at land border ports-of-entry. In the
Supplementary Information in the proposed rule under the heading
``Paperwork Reduction Act'' the USCIS published a 60 day notice
encouraging the public to submit comments specifically to the
information collection requirements contained in 8 CFR 208.30. The
USCIS did not receive any comments on the information collection
requirements. Accordingly, the USCIS has submitted an information
collection package to OMB in accordance with the PRA and OMB has
approved this information collection.
Family Assessment Statement
The Department has reviewed this rule and determined that it may
affect family well-being as that term is defined in section 654 of the
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A.
Accordingly, the Department has assessed this action in accordance with
the criteria specified by section 654(c)(1). In this rule, an alien
arriving at a land border port-of-entry with Canada may qualify for an
exception to the Safe Third Country Agreement, which otherwise requires
individuals to seek protection in the country of last presence
(Canada), by establishing a relationship to a family member in the
United States (``anchor relative'') who has lawful status in the United
States, other than a visitor, or is 18 years of age or older and has an
asylum application pending. This rule incorporates the Agreement's
definition of ``family member,'' which may be a spouse, son, daughter,
parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle,
niece, or nephew. The ``family member'' definition was intended to be
broad in scope to promote family unity. This rule thereby strengthens
the stability of the family by providing a mechanism to reunite
separated family members in the United States.
In some cases, the rule will have a negative effect resulting in
the separation of family members. The Agreement's exceptions, as
expressed in the rule, require an anchor relative to have either lawful
status in the United States, other than visitor, or else to be 18 years
of age or older and have a pending asylum application. Family members
who do not meet one of these conditions, therefore, would be separated
under the rule. However, this rule's definition of ``family member,''
which derives from the exceptions to the Agreement, is more generous
than other family-based immigration laws, which require the anchor
relative to have more permanent status in the United States (such as
that of citizen, lawful permanent resident, asylee or refugee) and
which have a more restricted list of the type of family relationships
that can be used to sponsor someone for immigration to the United
States (although, unlike those laws, this Agreement provides only an
opportunity to apply for protection and does not directly confer an
affirmative immigration benefit). Under this rule, family members will
be able to reunite even if the anchor relative's status is less than
permanent in the United States. Further, on a case-by-case basis, the
Agreement's ``public interest'' exception can be used to minimize this
cost.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Amendments to the Regulations
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
0
2. Section 208.4 is amended by adding a new paragraph (a)(6) to read as
follows:
Sec. 208.4 Filing the application.
* * * * *
(a) * * *
(6) Safe Third Country Agreement. Asylum officers have authority to
apply section 208(a)(2)(A) of the Act, relating to the determination
that the alien may be removed to a safe country pursuant to a bilateral
or multilateral agreement, only as provided in 8 CFR 208.30(e). For
provisions relating to the authority of immigration judges with respect
to section 208(a)(2)(A), see 8 CFR 1240.11(g).
* * * * *
0
3. Section 208.30 is amended by:
a. Redesignating paragraph (e)(4) as (e)(7);
[[Page 69489]]
b. Redesignating paragraph (e)(2) as paragraph (e)(4), and by
revising newly redesignated paragraph (e)(4);
c. Redesignating paragraph (e)(3) as parargaph(e)(5) and by
revising newly redesignated paragraph (e)(5);
d. Adding new paragraphs (e)(2), (e)(3), and (e)(6);
e. Revising paragraph (g)(2)(i), and by
f. Removing paragraphs (g)(2)(iii) and (g)(2))(iv).
The additions and revisions read as follows:
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.
* * * * *
(e) * * *
(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
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.
* * * * *
(g) * * *
(2) * * *
(i) Immigration judges will review negative credible fear findings
as provided in 8 CFR 1208.30(g)(2).
* * * * *
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSILE ALIENS; PAROLE
0
4. The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227.
0
5. Section 212.5 is amended by adding a new paragraph (e)(2)(iii) to
read as follows:
[[Page 69490]]
Sec. 212.5 Parole of aliens into the United States.
* * * * *
(e) * * *
(2) * * *
(iii) Any alien granted parole into the United States so that he or
she may transit through the United States in the course of removal from
Canada shall have his or her parole status terminated upon notice, as
specified in 8 CFR 212.5(e)(2)(i), if he or she makes known to an
immigration officer of the United States a fear of persecution or an
intention to apply for asylum. Upon termination of parole, any such
alien shall be regarded as an arriving alien, and processed accordingly
by the Department of Homeland Security.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
6. The authority citation for part 235 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32.7.
0
7. Section 235.3 is amended by revising the first sentence of paragraph
(b)(4) to read as follows:
Sec. 235.3 Inadmissible aliens and expedited removal.
* * * * *
(b) * * *
(4) * * * If an alien subject to the expedited removal provisions
indicates an intention to apply for asylum, or expresses a fear of
persecution or torture, or a fear of return to his or her country, the
inspecting officer shall not proceed further with removal of the alien
until the alien has been referred for an interview by an asylum officer
in accordance with 8 CFR 208.30. * * *
* * * * *
Dated: November 19, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-26239 Filed 11-26-04; 8:45 am]
BILLING CODE 4410-10-P
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