[Federal Register Volume 69, Number 45 (Monday, March 8, 2004)]
[Proposed Rules]
[Pages 10620-10627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5077]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 69, No. 45 / Monday, March 8, 2004 / Proposed
Rules
[[Page 10620]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 212
[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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On March 1, 2003, the Immigration and Naturalization Service
transferred from the Department of Justice to the Department of
Homeland Security (DHS), pursuant to the Homeland Security Act of 2002
(Public Law 107-296). The responsibility for administering the asylum
program was transferred to U.S. Citizenship and Immigration Services
(``USCIS'') within DHS. The terms of a recently signed agreement
between the United States and Canada bar certain categories of aliens
arriving from Canada at land border ports-of-entry and in transit from
Canada from applying for protection in the United States. This proposed
rule would establish USCIS asylum officers' authority to make threshold
determinations concerning applicability of the Agreement in the
expedited removal context.
DATES: Written comments must be submitted on or before May 7, 2004.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Department of Homeland Security, 425 I
Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling
please reference CIS No. 2255-03 on your correspondence. You may also
submit comments electronically to USCIS at [email protected]. When
submitting comments electronically, you must include CIS No. 2255-03 in
the subject box. Comments are available for public inspection at the
above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Joanna Ruppel, Deputy Director, Asylum
Division, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Ave., NW., Third Floor, Washington,
DC 20536, telephone number (202) 305-2663.
SUPPLEMENTARY INFORMATION:
What Legal Authority Permits USCIS To Use a Safe Third Country
Agreement as a Bar To Applying for Asylum?
Section 208(a)(1) of the Immigration and Nationality Act (``Act'')
permits any alien who is physically present in or who arrives at the
United States to apply for asylum. However, section 208(a)(2)(A) of the
Act specifically states that paragraph (1) shall not apply where,
``pursuant to a bilateral or multilateral agreement, the alien may be
removed to a country where the alien's life or freedom would not be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion, and where the alien
would have access to a full and fair procedure for determining a claim
to asylum or equivalent temporary protection, unless the Attorney
General [now deemed to be the Secretary of Homeland Security under the
Homeland Security Act] finds that it is in the public interest for the
alien to receive asylum in the United States.''
On December 5th, 2002, the governments of the United States and
Canada signed 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 (``Safe Third
Country Agreement'' or ``Agreement''). The Agreement will take effect
when the United States has promulgated implementing regulations and
Canada has completed its own domestic procedures necessary to bring the
Agreement into force. This Agreement will be implemented by USCIS
asylum officer determinations.
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. This Safe Third Country Agreement
between the United States and Canada currently constitutes the only
agreement, for purposes of section 208(a)(2)(A) of the Act, that would
bar an individual in or arriving at the United States from applying for
asylum.
During the bilateral negotiations that have resulted in the Safe
Third Country Agreement, the delegations of both countries acknowledged
certain differences in their respective asylum systems. However,
harmonization of asylum laws and procedures is not a prerequisite to
entering into responsibility-sharing arrangements. The salient factor
is whether the countries sharing responsibility for refugee protection
have laws and mechanisms in place that adhere to their international
obligations to protect refugees. The Executive Committee for the Office
of the United Nations High Commissioner for Refugees (UNHCR) has
concluded, ``Overall it is UNHCR's position that, while in principle
each State Party to the 1951 Convention and 1967 Protocol has a
responsibility to examine refugee claims made to it, ``burden-sharing''
arrangements allowing for readmission and determination of status
elsewhere are reasonable, provided they always ensure protection of
refugees and solutions to their problems.'' Background Note on the Safe
Country Concept and Refugee Status (EC/SCP/68), July 26, 1991. While
the asylum systems in Canada and the U.S. are not identical, both
country's asylum systems meet and exceed international standards and
obligations under the 1951 Convention relating to the Status of
Refugees (1951 Refugee Convention) and the 1967 Protocol relating to
the Status of Refugees (1967 Protocol), and the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (Convention Against Torture).
[[Page 10621]]
What Are the Terms of the Safe Third Country Agreement Between the
United States and Canada?
The Agreement permits the United States to remove to Canada certain
asylum seekers attempting to enter the United States from Canada at a
land border port-of-entry and aliens who are being removed from Canada
in transit through the United States. Similarly, it 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 and
certain aliens being removed from the United States through Canada. In
either case, the Agreement provides (with certain exceptions) that the
alien be returned to the ``country of last presence'' for consideration
of his or her protection claims, including asylum, withholding of
removal, and protection under the Convention Against Torture, under the
laws of that country.
For aliens arriving at a land border port-of-entry, the Agreement
provides for a number of exceptions. These exceptions are based upon
the principles underlying the U.S. position while negotiating the
Agreement: (1) To the extent practicable, the Agreement should not act
to separate families; (2) the Agreement must guarantee that persons
subject to it would have their protection claims adjudicated in one of
the two countries; and (3) it would be applied only in circumstances
where it is indisputable that the alien arrived directly from the other
country. These principles have been achieved by including a robust
family unity exception that allows asylum seekers to join certain
family members residing in the United States or Canada while they
pursue their protection claims; by clearly stipulating that the alien
must have his or her claim adjudicated in either Canada or the United
States; and by limiting the application of the Agreement to situations
where it is clear that the alien arrived directly from the other
country; e.g., at land border ports-of-entry or in-transit while being
removed from Canada.
The Agreement's family unity exceptions are particularly generous.
The range of family members who may qualify as ``anchor'' relatives due
to their presence in the United States is far broader than those
recognized under other provisions of immigration law. The list of
eligible family members includes spouses, sons, daughters, parents,
legal guardians, siblings, grandparents, grandchildren, aunts, uncles,
nieces, and nephews. For purposes of the Agreement, a ``legal
guardian'' will be construed as someone who is currently vested with
legal custody of the asylum seeker or with the authority to act on
behalf of the asylum seeker, provided that the asylum seeker is both
unmarried and less than 18 years of age. USCIS will provide field
guidance to asylum officers to standardize the approach used in
construing other family member relationships relevant to the Agreement
but not defined in the Act. Finally, these family members may qualify
as anchor relatives even if they themselves do not possess permanent
immigration status in the U.S. Aliens in valid immigrant or
nonimmigrant status may qualify as anchor relatives, with the exception
of aliens who maintain only nonimmigrant visitor status under section
101(a)(15)(B) of the Act or based on admission under the Visa Waiver
Program, who are precluded from serving as anchor relatives by the
language of the Agreement.
More specifically, an alien who arrives at a land border port-of-
entry is exempt from return under the Agreement if the alien:
(1) Is a citizen of Canada or, not having a country of nationality,
is a habitual resident of Canada;
(2) 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, except visitor status;
(3) 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 in the United States;
(4) Is unmarried, under 18 years of age, and does not have a parent
or legal guardian in either Canada or the United States;
(5) Is applying for admission at a United States land border port-
of-entry with a validly issued visa or other valid admission document,
other than for transit, issued by the United States, or, being required
to hold a visa to enter Canada, was not required to obtain a visa to
enter the United States; or
(6) Has been permitted, as an unreviewable exercise of discretion
by DHS, to pursue a protection claim in the United States because it
was determined that it is in the public interest to do so.
The specific terms of the Safe Third Country Agreement are
available on the USCIS Web site at http://www.uscis.gov.
How Does This Rule Propose To Implement the Safe Third Country
Agreement?
The rule proposes to revise Sec. 208.4 and add a new Sec.
208.30(e)(6) to permit asylum officers to conduct a ``threshold
screening interview'' in order to determine whether an alien is
ineligible to apply for asylum under section 208(a)(2)(A) of the Act by
operation of the Safe Third Country Agreement. New Sec.
208.30(e)(6)(iii) would codify the exceptions to the Agreement. Under
this rule, in any case where an asylum officer determines that the
alien qualifies for an exception to the Agreement with Canada, the
asylum officer will proceed immediately to a determination as to
whether or not the alien has a credible fear of persecution or torture,
as provided under existing law.
In Sec. 208.30(e)(6)(i), this proposed rule also makes clear that,
when an asylum officer determines that an alien is ineligible to pursue
his or her protection claims in the United States based on the
applicability of the Safe Third Country Agreement, the alien will be
removed to Canada, the country of the alien's last presence, in order
to pursue his or her claims there.
The rule also proposes to incorporate the existing definitions of
``credible fear of persecution'' and ``credible fear of torture'' in
the new Sec. Sec. 208.30(e)(2) and (e)(3). The definition of credible
fear of persecution, derived from section 235(b)(1)(B)(v) of the Act
and existing policy that incorporates consideration of eligibility for
withholding of removal, 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.''
The proposed rule incorporates the existing definition of credible fear
of torture provided in the supplementary information to the interim
rule implementing the United States' obligations under the Convention
Against Torture published in the Federal Register at 64 FR 8484 on
February 19, 1999. Under current procedures, as provided in the
supplementary information to the interim rule, an alien is 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.
The rule does not propose to
[[Page 10622]]
alter current procedures related to these existing definitions.
Finally, this rule proposes to remove the provisions of 8 CFR
208.30(g)(2) relating to the conduct of credible fear review by
immigration judges. In view of the transfer of the responsibilities of
the former INS to DHS on March 1, 2003, the Attorney General published
a rule creating a new chapter V in 8 CFR, beginning with part 1001 and
containing the regulations pertaining to the functions of the Executive
Office for Immigration Review (EOIR), which remains under the authority
of Attorney General. The Attorney General's rule was published in the
Federal Register at 68 FR 9824 on February 28, 2003. Accordingly, this
rule revises Sec. 208.30(g)(2) to remove the previous provisions and
to substitute a new cross-reference to the current EOIR regulations
which are now codified at 8 CFR 1208.30(g)(2).
Why Is USCIS Proposing To Amend the Regulations Governing Credible Fear
Determinations?
The Safe Third Country Agreement between the United States and
Canada bars certain aliens from pursuing protection claims in the
United States if they are either arriving from Canada at land border
ports-of-entry or are being removed from Canada in transit through the
United States. Instead, those aliens will be returned to Canada to have
their protection claims adjudicated by Canada. In general, the
Agreement will be applied to such aliens who are subject to expedited
removal provisions under section 235(b) of the Act, which provides a
specific removal mechanism for aliens who are inadmissible under
sections 212(a)(6)(C) (fraud or willful misrepresentation) or 212(a)(7)
(failure to have proper documents) of the Act. However, in light of the
Safe Third Country Agreement's purpose in allowing asylum seekers
access to only one of the signatory countries' protection systems, this
rule proposes a modified approach to the expedited removal process in
the form of a threshold asylum officer screening as to which country
(Canada or the United States) will consider an alien's protection
claims. Only after this threshold issue has been resolved in favor of
allowing the alien to pursue an asylum claim in the United States will
an asylum officer make a determination as to whether or not the alien
has a credible fear of persecution or torture.
Under section 235(b), aliens subject to expedited removal who seek
asylum in the United States or otherwise express a fear of persecution
or torture are referred to an asylum officer. During a ``credible fear
interview,'' the asylum officer inquires as to the nature and basis of
the alien's claims relating to past persecution and fear of future
persecution or torture. The asylum officer then determines whether or
not there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of the
alien's claims and other facts known to the officer, that the alien
could establish eligibility for protection under U.S. law. In the event
that the asylum officer determines that the alien has not established a
credible fear of persecution or torture, the alien may request review
of that determination by an immigration judge.
For aliens who are subject to the Agreement, however, the threshold
question is whether the alien should be returned to Canada for Canadian
authorities to consider the merits of the alien's claims, or whether
the alien will instead be allowed to pursue his or her protection
claims in the United States. Accordingly, this rule provides for a
threshold screening interview by an asylum officer to determine whether
an alien subject to the Agreement will be permitted to remain in the
U.S. to pursue his or her protection claims, based on the alien's
qualification for one of the Agreement's exceptions. It is only after
this threshold screening interview (i.e., only after the asylum officer
has decided that the alien is not going to be removed to Canada for an
adjudication of the alien's claims) that the asylum officer would
proceed to promptly consider the alien's claims for protection under
United States law through the credible fear determination process. The
asylum officer's notes regarding the threshold issues raised by the
Agreement would then be included in the asylum officer's written record
of the credible fear determination. In those instances where an asylum
officer determines, after review by a supervisory asylum officer, that
the alien has not provided reason to believe, by a preponderance of the
evidence, that he or she qualifies for any of the Agreement's
exceptions, then the asylum officer will advise the alien that he or
she is being returned to Canada based on the terms of the Agreement so
that the alien will be able to pursue his or her claims for asylum or
protection under Canadian law.
Given the narrowness of the factual issues relevant to the
threshold screening determination that the Agreement and/or its
exceptions are applicable to an alien, which can readily be considered
and adjudicated by asylum officers, this rule does not provide for
referral to immigration judges for further review of these threshold
screening determinations. The narrow factual issues concerning the
Agreement's applicability and exceptions (such as the presence of
family members in the U.S. or the possession of validly issued visas)
do not relate to whether an alien has a fear of persecution or torture,
and can adequately be resolved by asylum officers. Thus, under this
proposed rule, when an asylum officer makes and a supervisor reviews
this threshold determination, there would be no further administrative
review of that decision. Elsewhere in the Federal Register, the
Department of Justice is publishing a proposed rule to specify the
authority of the immigration judges with respect to issues arising
under the Agreement.
This method for implementing the Safe Third Country Agreement,
which bars certain aliens from applying for asylum in the United
States, is within the authority of the Secretary of DHS, under section
208(a)(2)(A) of the Act and under section 208(d)(5)(B) of the Act,
which provides authority to impose regulatory conditions or limitations
on the consideration of an application for asylum not inconsistent with
the Act. Section 208(a)(2)(A) of the Act makes an alien ineligible to
apply for asylum in the United States if, pursuant to a bilateral
agreement, the Secretary concludes that the alien ``would have access
to a full and fair procedure for determining a claim to asylum or
equivalent temporary protection'' in a safe third country. An alien who
is covered by section 208(a)(2)(A) is thus not eligible to apply for
asylum regardless of the statutory means by which he is ordered removed
from the United States. By this rule, the Secretary is proposing, in a
manner consistent with the Act, to delegate to asylum officers the
authority to make the threshold determination whether an alien is
ineligible to apply for asylum by operation of the Agreement with
Canada.
USCIS thus proposes to amend the regulations governing the credible
fear determination in order to implement the threshold screening
process described above for aliens subject to the Safe Third Country
Agreement, prior to a credible fear determination. However, this rule
preserves unchanged the existing credible fear process itself,
including the availability of a credible fear review by an immigration
judge, in every case where the asylum officer determines that an alien
subject to the Agreement does satisfy any of the threshold
jurisdictional exceptions, including a discretionary decision by
[[Page 10623]]
DHS to allow the alien to pursue an asylum claim as a matter in the
public interest. If the asylum officer determines the alien is not
barred by the Agreement from pursuing his or her protection claims in
the U.S., the asylum officer will then proceed immediately to a
credible fear determination on the merits of the alien's claims, and,
if necessary, an immigration judge will conduct a review of this
determination on the merits, as provided under existing law and
regulations.
How Does This Rule or the Safe Third Country Agreement Affect
Unaccompanied Minors?
In order to understand how this rule affects unaccompanied minors,
it is important to understand that the definition of an ``unaccompanied
minor'' customarily used in determining appropriate immigration
processes is different than the definition used in the Agreement for
determining whether an exception to the Agreement applies. While
``unaccompanied minor'' has not been formally defined in the Act or in
regulations, for immigration processing purposes, an individual who is
under age 18 and is not accompanied by an adult relative or guardian is
considered an ``unaccompanied minor.'' This definition differs from the
Agreement's language. Article 1(f) of the Agreement defines
``unaccompanied minor'' as ``an unmarried refugee status claimant who
has not yet reached his or her eighteenth birthday and does not have a
parent or legal guardian in either Canada or the United States.'' This
rule does not propose replacing the customary definition of
``unaccompanied minor'' with the Agreement's definition for purposes of
determining immigration issues unrelated to the Agreement. However, in
applying the Agreement, this difference in definitions will result in
finding that some individuals under age 18 who are not accompanied by
an adult relative or legal guardian when they arrive at a land border
port-of-entry will not qualify for the unaccompanied minor exception in
the Agreement, because they have a parent or legal guardian in the
United States or Canada.
Since August of 1997, the Immigration and Naturalization Service's
policy, now DHS's policy, has been to place unaccompanied minors into
expedited removal proceedings only under limited circumstances. Under
existing policy, an unaccompanied minor would be placed into expedited
removal proceedings only if he or she (1) in the presence of a DHS
immigration officer, engaged in a crime that would qualify as an
aggravated felony if committed by an adult; (2) has been convicted or
adjudicated delinquent of an aggravated felony in the United States or
any other country, and a U.S. Customs and Border Protection (CBP)
officer has confirmation of that order; or (3) has been formally
removed, excluded, or deported previously from the United States.
Existing guidelines permit granting a waiver, deferring the inspection,
permitting a withdrawal of the application for admission, or using
other discretionary means to process unaccompanied minors who seek
admission to the United States, where appropriate. This rule does not
propose to change that existing policy. The Safe Third Country
Agreement will be applied in the expedited removal proceedings of
unaccompanied minors only when such other processing of an
unaccompanied minor seeking admission at a land border port-of-entry is
not appropriate. When an unaccompanied minor arrives from Canada at a
land border port-of-entry and seeks protection, he or she still will be
processed according to existing guidelines, which often results in
placing the minor into removal proceedings under section 240 of the
Act. Where the minor is placed into removal proceedings under section
240 of the Act, the Agreement, including its definition of
``unaccompanied minor,'' will be applied by the immigration judge, as
provided in the Department of Justice proposed rule published in the
Federal Register.
What Type of Evidence Will Satisfy USCIS When Determining Whether an
Individual Meets One of the Exceptions in the Agreement?
As specified in the proposed rule at Sec. 208.30(e)(6)(ii) and
pursuant to a Statement of Principles concerning the implementation of
the Agreement, the alien bears the burden of proof to establish by a
preponderance of the evidence that an exception applies, such that the
alien falls outside the scope of the Agreement. Asylum officers will
use all available evidence, including the individual's testimony,
affidavits and other documentation, as well as available records and
databases, to determine whether an exception to the Agreement applies
in each individual's case. Credible testimony alone may be sufficient
to establish that an exception applies, if there is a satisfactory
explanation of why corroborative documentation is not reasonably
available. DHS recognizes that computer systems and DHS records will
not be sufficient to verify family relationships in all circumstances
and that asylum seekers fleeing persecution often will not have
documents establishing family relationships with them at the time they
seek to enter the United States. Asylum officers receive extensive
training in evaluating credibility of testimony when there is little or
no documentation in support of that testimony. Asylum officers will
document their findings that the Agreement or its exceptions are
applicable to an alien, and in the case of any alien who qualifies for
one of the Agreement's exceptions, will immediately proceed to make a
credible fear determination, as described in sections 235(b)(1)(B)(ii)
and (iii) of the Act.
How Does the Safe Third Country Agreement Address the Possibility That
Individuals Will Be Removed Without Having Their Protection Claims
Heard?
An individual referred by either Canada or the United States to the
other country under the terms of Article 4 cannot be removed to a third
country until an adjudication of the individual's protection claims has
been made. The Agreement also provides, in Article 3, that an
individual returned to the country of last presence shall not be
removed to another country pursuant to any other Safe Third Country
Agreement or regulation.
How Does the Safe Third Country Agreement Affect People Who Are Being
Removed From Canada or the United States and Then Seek Protection While
Transiting Through the Other Country?
Pursuant to Article 5(a) of the Agreement, if an alien is being
removed from Canada through the United States and expresses a fear of
persecution or torture, the alien will be returned to Canada for Canada
to adjudicate his or her protection claims, in accordance with Canada's
protection system. Generally, individuals being removed by Canada
through the United States are pre-inspected in Canada and escorted by
Canadian immigration officials to their onward destination. Individuals
who make a protection claim during pre-inspection will not be allowed
to transit through the United States. Individuals being removed by
Canada in transit through the United States are considered arriving
aliens in parole status, as described in section 212(d)(5) of the Act.
If such an individual asserts a fear of persecution or torture to a
U.S. immigration officer, while in transit through the United States,
the individual's parole status will be terminated pursuant to Sec.
212.5(e)(2)(i), and he or she generally will be placed in expedited
removal proceedings, though there may be some rare instances
[[Page 10624]]
in which the individual will be placed in removal proceedings under
section 240 of the Act. Transit aliens placed in expedited removal
proceedings under this provision will be subject to the same asylum
officer threshold screening process as aliens arriving at U.S.-Canada
land border ports-of-entry. For those rare instances in which such a
transit alien is placed in removal proceedings pursuant to section 240
of the Act, the Agreement will be applied by the immigration judge as
provided in the Department of Justice proposed rule, published in the
Federal Register.
The effect of the Agreement on an asylum seeker being removed from
the United States through Canada depends on whether the United States
already has considered any asylum, withholding, or Torture Convention
claim(s). If the United States has considered but denied the alien's
protection claims, the person will be permitted onward movement, in
accordance with Article 5(c) of the Agreement. If the United States has
not already adjudicated the alien's protection claims, the person will
be returned to the United States for such an adjudication.
How Does the Agreement Affect Individuals Who Seek Withholding of
Removal or Protection Under the Convention Against Torture?
Article 33 of the 1951 Refugee Convention, as supplemented by the
1967 Refugee Protocol, requires that signatory states not return
persons to any country where their lives or freedom would be threatened
on account of their race, religion, nationality, political opinion, or
membership in a particular social group. The U.S. is a signatory to the
1967 Protocol, and Canada is a signatory to both the 1951 Refugee
Convention and the 1967 Protocol. The U.S. implements its obligations
under the 1967 Protocol in section 241(b)(3) of the Act, which, as
implemented, prohibits DHS from removing aliens to any country where it
is more likely than not that their lives or freedom would be threatened
on account of the grounds enumerated above. Nevertheless, DHS is not
prevented from removing aliens to countries where their lives or
freedom would not be threatened.
Article 3 of the Convention Against Torture prohibits the return of
persons to any country where there are substantial grounds for
believing that they would be subject to torture. Like the United
States, Canada is a signatory to the Convention Against Torture. The
United States implements this obligation by granting withholding of
removal or deferral of removal to a country where it is more likely
than not that the applicant would be subject to torture.
Article 3 of the Agreement provides that ``the Parties shall not
return or remove a refugee status claimant referred by either Party
under the terms of [the Agreement] to another country until an
adjudication of the person's refugee status claim has been made.'' In
Article 1, the Agreement defines a refugee status claim to include a
request for protection under the 1951 Refugee Convention, 1967
Protocol, or Convention Against Torture. Returning any alien to Canada
pursuant to the terms of the Agreement for a consideration of the
alien's protection claims, in the absence of any grounds for believing
that the alien would be persecuted or tortured in Canada, is consistent
with the United States' international protection obligations.
Does CBP Plan To Place Aliens Returned to the United States From Canada
Under the Safe Third Country Agreement Into Expedited Removal
Proceedings?
No. For an alien to be subject to the expedited removal provisions,
the alien must first meet the definition of arriving alien. The Board
of Immigration Appeals has held that an alien who goes abroad but is
returned to the United States after having been formally denied
admission by the foreign country is not an applicant for admission,
since, in contemplation of law, the alien did not leave the United
States. Matter of T, 6 I&N Dec. 638 (1955). Those who entered the
United States legally or illegally and are later denied admission by
Canada are not arriving aliens and therefore not subject to expedited
removal. Depending on their status, they may or may not be subject to
removal proceedings before an immigration judge, pursuant to section
240 of the Act, or removal pursuant to sections 241(a)(5)
(reinstatement of a prior order) or 238(b) (administrative removal
based on aggravated felony conviction) of the Act. For example, this
return to the United States would not qualify as an ``arrival'' for
purposes of determining whether an applicant has filed for asylum
within one year of the date of his or her last arrival in the United
States, as required under section 208(a)(2)(B) of the Act.
How Does This Proposed Rule Affect Individuals Who Enter the United
States Through Canada and Who Then Apply for Asylum?
The proposed rule does not affect any individuals who apply for
asylum after entering the United States from Canada. The proposed rule
is limited only to those individuals who are placed in expedited
removal or removal proceedings upon arrival at U.S.-Canada land border
ports-of-entry and to those who are aliens in transit through the
United States subsequent to removal from Canada. Individuals who
previously entered the United States, having come from Canada, and
later apply for asylum affirmatively with USCIS or defensively in
removal proceedings before an immigration judge are not arriving aliens
and so will not be barred from applying for asylum by operation of the
Agreement.
Regulatory Flexibility Act
DHS has reviewed this regulation in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)) and by approving it, DHS
preliminarily certifies that this rule will not have a significant
economic impact on a substantial number of small entities. This rule
affects individual aliens, as it relates to claims of asylum. It does
not affect small entities, as that term is defined in 5 U.S.C. 601(6).
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
[[Page 10625]]
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 regulation justify its
costs.
The proposed rule would implement a bilateral agreement that
allocates responsibility between the United States and Canada for
processing claims of certain asylum seekers. 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 adds 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 the
U.S.-Canadian border 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
Safe Third Country 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 proposed 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. However, because there
may be other tangible costs to asylum seekers attempting to enter the
United States from Canada at a land border port-of-entry (e.g.,
transportation costs to the U.S. border), public comment is invited for
further consideration of what such additional costs may include. 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 process.
The proposed rule benefits the United States because it enhances
the ability of the U.S. and Canada to manage, in an orderly fashion,
asylum claims brought by persons crossing our common border. By
implementing the Agreement, the proposed 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. Further, the Agreement and proposed rule
save the U.S. the time and expense of adjudicating protection claims
brought by asylum seekers who have already had a full and fair
opportunity to present their claims in Canada.
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. The threshold screening interview is considered an information
collection requirement subject to review by OMB under the Paperwork
Reduction Act of 1995. Written comments are encouraged and will be
accepted until May 7, 2004. When submitting comments on the information
collection, your comments should address one or more of the following
four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of This Information Collection
(1) Type of information collection: New.
(2) Title of Form/Collection: Credible fear threshold screening
interview.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: No form
number, U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. The information collection is
necessary in order for the CIS to make a determination whether an alien
is eligible to apply for asylum pursuant to section 208(a)(2)(A) of the
Act.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: 200 respondents
at 30 minutes per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Approximately 100 burden hours.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Regulations and Forms
Services Division, 425 I Street, NW., Room 4034, Washington, DC 20536;
Attention: Richard A. Sloan, Director, 202-514-3291.
[[Page 10626]]
Family Assessment Statement
DHS has reviewed this regulation 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, DHS has assessed this action in accordance with the
criteria specified by section 654(c)(1). In this proposed 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 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 proposed 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 proposed 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 proposed rule will have a negative effect
resulting in the separation of family members. The Agreement's
exceptions, as expressed in the proposed rule, require the family
member 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 proposed rule.
However, this proposed rule's definition of ``family member'' and the
exceptions to the Agreement are more generous than other family-based
immigration laws, which require the anchor family member to have more
permanent status in the United States (such as 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.
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.
Proposed Amendments to the Regulations
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
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.
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 Sec. 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).
* * * * *
3. Section 208.30 is amended by:
a. Redesignating paragraph (e)(4) as (e)(7);
b. Redesignating paragraphs (e)(2) and (e)(3) as (e)(4) and (e)(5)
respectively;
c. Revising newly designated paragraphs (e)(4) and (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 Sec. Sec. 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 Sec. 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 under 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 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 determines that an alien does not qualify
for an
[[Page 10627]]
exception under the Agreement during this threshold screening
interview, the alien is ineligible to apply for asylum in the United
States. After review of this finding 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 an alien has a credible fear of persecution or
torture.
(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 U.S.
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. of 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, 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 Department of Homeland Security 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 Sec. 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 INADMISSIBLE ALIENS; PAROLE
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, 1225, 1226, 1227, 1228; 8 CFR part 2.
5. Section 212.5 is amended by adding new paragraph (e)(2)(iii) to
read as follows:
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 Sec. 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 applicant for admission, and processed
accordingly by the Department of Homeland Security.
* * * * *
Dated: January 26, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-5077 Filed 3-5-04; 8:45 am]
BILLING CODE 4410-10-P