[Federal Register Volume 59, Number 61 (Wednesday, March 30, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7500]
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[Federal Register: March 30, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 208, 236, 242, and 274a
[INS No. 1651-93; AG Order No. 1862-94]
RIN 1115-AD64
Rules and Procedures for Adjudication of Applications for Asylum
or Withholding of Deportation and for Employment Authorization
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule would amend existing regulations to streamline the
adjudication of asylum applications submitted to Asylum Officers within
the Immigration and Naturalization Service (INS). The rule would allow
the INS to grant asylum to deserving applicants more promptly and to
resolve expeditiously the great number of meritless and abusive
applications being filed each year. Under the rule, Asylum Officers
would no longer prepare detailed denials in cases where they do not
grant asylum to applicants who have no legal immigration status, but
instead would automatically issue mandatory referrals of these
applications to Immigration Judges for completion of the adjudication
as part of exclusion or deportation proceedings. In addition, the rule
makes interviews discretionary, authorizing the Asylum Officers to
refer claims immediately to Immigration Judges. The rule also would
restrict employment authorization to applicants for asylum or
withholding of deportation whose claims have been pending for more than
150 days, a period which would not run until the alien has filed a
complete application and would not include delays sought or caused by
the applicant. This rule also would conform existing regulations to the
current practice of receiving applications for asylum and withholding
of deportation at the four INS Service Centers. To provide necessary
funding for the asylum adjudications process, the rule would provide
for imposition of a filing fee for asylum applications and for
employment authorization applications based on a pending asylum
application.
DATES: Written comments must be submitted on or before May 31, 1994.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, room 5307, 425 I Street NW., Washington, DC
20536. To ensure proper handling please reference INS No. 1651-93 on
your correspondence.
FOR FURTHER INFORMATION CONTACT: Christine Davidson, Senior Policy
Analyst, Asylum Division, Immigration and Naturalization Service, 425 I
Street NW., ULLICO 3rd Floor, Washington, DC 20536, (202) 633-4389, or
Gerald S. Hurwitz, Counsel to the Director, Executive Office for
Immigration Review, 2400 Skyline Tower, 5107 Leesburg Pike, Falls
Church, VA 22041, (703) 305-0470.
SUPPLEMENTARY INFORMATION:
Background
The Refugee Act of 1980, Public Law 96-212, amended the Immigration
and Nationality Act (``Act'') by adding a new section 208 to require
the Attorney General to establish a procedure for any alien who is
physically present in the United States or at a land border or port of
entry, regardless of such alien's status, to apply for asylum. 8 U.S.C.
1158. Under 8 CFR part 208, effective October 1, 1990, applications for
asylum or withholding of deportation filed by aliens who are not
subject to exclusion or deportation proceedings, as well as the
applications of alien crewmen, stowaways, and aliens temporarily
excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), are
adjudicated in the first instance by a corps of professional Asylum
Officers in the Office of Refugees, Asylum, and Parole. 8 CFR 208.1,
208.2, 208.4, and 253.1(f). An Asylum Officer conducts a nonadversarial
interview with an applicant to elicit all relevant and useful
information bearing on the applicant's eligibility for asylum, and has
authority to receive other evidence bearing on the claim. 8 CFR 208.9.
When an Asylum Officer intends to deny an application in reliance upon
any materials identified in 8 CFR 208.12, that material must be
identified, and unless the material is classified, the applicant must
be provided with an opportunity to inspect, explain, and rebut the
material. The Asylum Officer must decide whether to grant or deny the
application after review of the properly submitted rebuttal. If the
Officer denies the application, he or she must prepare and serve upon
the applicant an opinion stating why the application was denied. A
decision to grant asylum also requires a written decision. 8 CFR 208.14
and 208.17.
If an Asylum Officer denies an application for asylum or
withholding of deportation, the applicant may renew that application
before an Immigration Judge after the applicant has been served a
Notice to Alien Detained for Hearing by an Immigration Judge (Form I-
122) under 8 CFR 235.6, or after the applicant has been served with an
Order to Show Cause under 8 CFR 242.1. Immigration Judges have
exclusive jurisdiction over these applications once the charging
document has been filed with the Office of the Immigration Judge. 8 CFR
208.2(b). The Immigration Judge shall decide such claims de novo. 8 CFR
208.2(b). If denied, the alien, by filing a Notice of Appeal (Form
EOIR-26), may obtain review of his or her claim by the Board of
Immigration Appeals. The alien may pursue further appeals in the
Federal courts.
An applicant for asylum also is eligible to apply for employment
authorization. 8 CFR 208.7(a) and 274a.12(c)(8). Such applications,
submitted on Forms I-765, often accompany asylum applications. The INS
must adjudicate an employment authorization application within 90 days
of receipt, 8 CFR 274a.13(d), and must grant employment authorization
if the asylum application is not frivolous. ``Frivolous,'' as defined
in 8 CFR 208.7(a), means ``manifestly unfounded or abusive.''
The existing system for adjudicating asylum claims cannot keep pace
with incoming applications and does not permit the expeditious removal
from the United States of those persons who claims fail. While part of
this difficulty is attributable to limited resources, the problem also
stems in large part from the effort to meet procedural requirements
imposed by current regulations. On October 1, 1990, the INS had a
backlog of approximately 90,000 asylum claims. Since that date,
approximately 250,000 cases have been added to that backlog. Asylum
applications are received at a current rate approaching 150,000 per
year. A significant and growing percentage of current receipts are
claims that appear on their face to be nonmeritorious or abusive. As
currently constituted, INS regulations mandate the interview of all
applicants, adjudication of requests for work authorization, written
decisions by an Asylum Officer justifying all denials, de novo review
of denials by an Immigration Judge, at the availability of
administrative and judicial review if the Immigration Judge also denies
the claim. Taken together, these requirements unduly lengthen and
complicate the adjudication process without appreciable benefit to
deserving asylum applicants. Indeed, most asylum applicants wait a year
or more to receive even initial decisions on their cases.
Summary of the Proposed Rule
The proposed rule will streamline the asylum adjudications process
by making several principal reforms.
First, the role and functions of Asylum Officers will change to
allow the Officers to address a greater volume of applications and to
concentrate their efforts on approving meritorious claims. Officers
will no longer deny applications from aliens who are excludable or
deportable. Under this proposed rule, Officers will either grant the
application or refer the application to the Immigration Judge after
serving upon the applicant a charging document (Form I-122 or Order to
Show Cause) to initiate exclusion or deportation proceedings. The
Asylum Officer will no longer prepare and send a Notice of Intent to
Deny in those cases that the Officer does not intend to grant. Instead,
the Asylum Officer will issue an automatic mandatory referral letter
and, with supervisory approval, a charging document. Supervisory Asylum
Officers already have the authority to issue such charging documents
under 8 CFR 235.6(a) and 242.1(a)(21). In addition, Asylum Officers no
longer will be required to conduct personal interviews, but will have
discretion to conduct such an interview in any case they deem
appropriate.
Asylum Officers will continue to grant or deny applications in the
small number of cases involving aliens who have a current legal
immigration status not derived from their asylum application. In this
circumstance no charging document will be issued if the Officer denies
the claim. The applicant instead will receive a denial letter from the
Asylum Officer.
Second, in cases referred to an Immigration Judge, the Asylum
Officer shall refer and forward to the Office of the Immigration Judge
the asylum application originally received by the Asylum Officer. This
application shall form part of the record of proceedings. This reform
is intended to encourage the filing of complete and responsive
applications in the first instance and to discourage applicants from
filing claims before Immigration Judges that differ from the claims
they filed before Asylum Officers.
Third, an asylum applicant will not be eligible to apply for
employment authorization based on his or her asylum application until
150 days after the date on which the asylum application is fled. These
reforms are important for several reasons. They will encourage the INS
and the Office of the Immigration Judge to adjudicate claims promptly
within the 150-day period, since, by doing so, they would avoid the
necessity of separately adjudicating the work authorization
applications. These reforms also will authorize the INS to deny
employment authorization to those whose underlying asylum applications
have been denied. These reforms should reduce the incidence of asylum
applications filed primarily to obtain employment authorization.
Applicants with pending asylum claims will wait longer than
required at present to receive employment authorization. The Department
selected 150 days as the period beyond which it would not be
appropriate to deny work authorization to a person whose claim has not
been adjudicated. Ideally, however, few applicants would ever reach the
150-day point. Rather, the Department would aim to complete the process
in less time, serving to decide most cases within 120 days. Those whose
claims are not adjudicated by the Asylum Officer and the Immigration
Judge within the 150-day period will, subject to certain conditions, be
eligible to apply for and to receive work authorization. The INS will
adjudicate these applications for work authorization within 30 days of
receipt, regardless of the merits of the underlying asylum claim. Those
whose claims are denied by the Immigration Judge within the 150-day
period shall not be eligible to apply for work authorization. In
addition, those whose claims are denied by the Immigration Judge within
the 30-day period, but prior to the issuance of employment
authorization, will not receive employment authorization. Applicants
granted asylum will continue to be authorized immediately to be
employed.
The proposed rule also would eliminate the provisions of 8 CFR
274a.12(c)(13), which permit the issuance of employment authorization
to any non-detained alien against whom exclusion or deportation
proceedings have been instituted. The INS believes that the other
paragraphs within 8 CFR 274a.12(c) provide an adequate basis for the
issuance of employment authorization to virtually all deserving persons
in exclusion or deportation proceedings who are not detained.
The proposed rule also would institute a fee for filing asylum
applications. Under 31 U.S.C. 9701, federal agencies may, subject to
policies prescribed by the President, assess user fees for services and
things of value that they provide. The statute authorizing this
practice indicated that it was the sense of the Congress that ``each
service or thing of value provided by an agency'' should be ``self-
sustaining to the extent possible.'' 31 U.S.C. 9701(a). Until now, the
INS has sought to provide asylum status determinations without charge
to the asylum applicant. Asylum applicants have paid a fee only when
filing an application for renewed work authorization. The INS has
avoided charging asylum application fees by adding a surcharge to the
fees for filing applications for immigration benefits other than
asylum. Monies collected through this surcharge have, in part, funded
the asylum program, as permitted by section 286(m) of the Act, 8 U.S.C.
1356(m). The INS has determined, however, that even the funds collected
through the surcharge have failed to cover the costs of administering
the asylum program. For this reason, it has become necessary to propose
a filing fee for persons filing an application for asylum or
withholding of deportation (Form I-589, ``Request for Asylum in the
United States''). Asylum applicants also would pay a fee to file
initial applications for employment authorization (Form I-765,
``Application for Employment Authorization'').
The estimated cost associated with adjudicating each asylum
application, taking into account the salaries and benefits of asylum
officers and clerical staff, supervisory, management and administrative
activities, data processing, and legal services, is $615. As it would
impose a hardship on asylum applicants were they required to pay the
entire cost of the service rendered them, part of this cost is
recovered through the surcharge mentioned above. The INS has calculated
that the portion not currently recovered through the surcharge could be
recovered if the proposed fee for asylum applications were set at $130.
Asylum applicants applying for initial work authorization would pay an
additional fee of $60, the fee currently set forth at 8 CFR 103.7(b).
Both fees would be subject to the waiver available under 8 CFR 103.7(c)
to applicants who cannot pay the prescribed fee.
Beyond these principal reforms, the proposed rule will eliminate
the requirement that asylum adjudicators await the receipt of advisory
opinions from the Department of State. Instead, the State Department
will provide detailed country conditions information accessible by
electronic data base. In addition, both the INS and Immigration Judges
may request specific information from the State Department concerning
country conditions or individual cases and the State Department also
may provide, at this discretion, information available to it concerning
individual cases. However, the proposed rule would eliminate the
requirement that Asylum Officers and Immigration Judges wait for the
receipt of State Department comments before adjudicating authorizations
for asylum.
In addition, the proposed rule would authorize Asylum Officers and
Immigration Judges to deny otherwise approvable claims on the ground
that the applicant can be deported or returned to a country on which
the alien would not face harm or persecution and would have access to a
full and fair procedure for determining his or her asylum claim in
accordance with a bilateral or multilateral arrangement with the United
States. This authority will be helpful in coordinating United States
asylum policy with that of other nations.
The proposed rule also would curtail the authority of Asylum
Officers to grant or deny withholding of deportation under section
243(h) of the Act, 8 U.S.C. 1253(h). Under current regulations, if an
Asylum Officer denies an alien's application for asylum, he shall also
decide whether the alien is entitled to withholding of deportation. 8
CFR 208.16(a). Under the proposed rule, however, Asylum Officers will
no longer deny asylum in the cases of aliens who are to be placed in
exclusion or deportation proceedings, and thus will have no reason to
reach the issue of withholding of deportation. Accordingly, it is
appropriate to limit jurisdiction over withholding of deportation to
Immigration Judges. The only cases in which Asylum Officers could
adjudicate such claims would be those involving crewmen stowaways, or
aliens temporarily excluded under section 235(c) of the Act, 8 U.S.C.
1225(c).
Finally, the proposed rule would amend 8 CFR 242.17(e) to specify
that information contained in an asylum application may be used as a
basis for an Order to Show Cause against the applicant under 8 CFR
242.1. This change ensures that the INS may use the asylum application
to refer expeditiously to Immigration Judges the cases of otherwise
deportable applicants whose claims are not granted by Asylum Officers.
Several sections amended by this proposed rule were the subject of
a prior proposed rule designed to implement the intent of Congress to
eliminate asylum benefits for aliens convicted of aggravated felonies
and to classify aggravated felonies as ``particularly serious crimes''
under section 243(h) of the Act, 8 U.S.C. 1253(h). See 58 FR 38312-
38314 (July 16, 1993). In order to simplify the rulemaking process, the
substance of the provisions set forth in the prior proposed rule have
been incorporated into the present proposed rule, and the prior
proposed rule is withdrawn. The provisions of the prior proposed rule
have not been adopted verbatim, but have been adapted to reflect the
overall changes made by this proposed rule. However, the substantive
effects of the aggravated felony provisions in this proposed rule are
identical to those set forth in the prior proposed rule.
The comments to the prior proposed rule recommended that conviction
for an aggravated felony not automatically constitute a ``particularly
serious crime,'' and that asylum applicants convicted of an aggravated
felony be given an opportunity to demonstrate that they are not a
danger to the community. The INS believes that this proposal is
contrary to the Congress's intent in enacting section 515 of the
Immigration Act of 1990, 8 U.S.C. 1158(d). The Department invites
comments on these provisions, including comments from those who
responded to the prior proposed rule.
This proposed rule also makes several conforming and technical
amendments. The rule deletes all references to the Asylum Policy and
Review Unit, an entity within the Department of Justice that no longer
exists. The rule also clarifies the responsibilities of the asylum
applicant to provide a competent interpreter at an interview with an
Asylum Officer.
Proposed Amendments
8 CFR 103.7(b)(1) would be amended to provide that a fee of $130.00
be charged for the filing of a Form I-589, Application for Asylum or
Withholding of Deportation.
8 CFR 208.1(a) would be amended to specify that these regulations
will apply to all adjudications of asylum applications, whether by an
Asylum Officer or by an Immigration Judge, on or after the effective
date of the regulations; and to specify that the provisions relating to
a person convicted of an aggravated felony, as defined in section
101(a)(43) of the Act, 8 U.S.C. 1101(a)(43), shall apply to asylum
applications filed on or after November 29, 1990. 8 CFR 208.1 also
would be amended to make a number of technical amendments.
8 CFR 208.2(a) would be amended to specify that asylum applications
received by an Asylum Officer are either to be adjudicated by the
Officer or referred to an Immigration Judge in accordance with amended
8 CFR 208.14. 8 CFR 208.2(b) would be amended to specify that in cases
where the adjudication of an application has been referred by an Asylum
Officer to an Immigration Judge in accordance with 8 CFR 208.14, the
original application shall be forwarded to the Immigration Judge. This
paragraph also would be amended to specify that Asylum Officers do not
have jurisdiction to grant or deny withholding of deportation, except,
pursuant to 8 CFR 253.1(f), in cases of crewmen, stowaways, and aliens
temporarily excluded under section 235(c) of the Act, 8 U.S.C. 1225(c).
8 CFR 208.3(a) would be amended by eliminating the requirement that
a Form G-325A (Biographical Information) be filed. This reflects the
fact that the Form I-589 is to be revised to include complete
biographical information. Also, the form and any supporting material is
to be filed in triplicate, rather than quadruplicate. 8 CFR 208.3 also
would be amended by adding new paragraphs (c) and (d). Proposed
paragraph (c) states that the instructions on the asylum application
shall inform the applicant that information provided on the application
may be used in the institution of, or as evidence in, exclusion or
deportation proceedings; that mailing to the address provided on the
application shall constitute adequate service of all notices or other
documents, including charging documents; that preparers assisting
applicants in completing their asylum applications must be identified
clearly; that the signatures on the application are made under penalty
of perjury and may form the basis for denial if the applicant later
expresses ignorance of the contents of the application; that failure to
respond to all of the questions may form the basis for denial; and that
knowing placement of false information may subject the applicant or
preparer to civil penalties under section 274C of the Act, 8 U.S.C.
1324c. Proposed paragraph (d) requires that the application be signed
under penalty of perjury by the applicant and by any person other than
an immediate relative who prepared or assisted the applicant in
preparing the application.
8 CFR 208.4(a) would be amended to provide that, except for
applications that are to be filed with the District Director or the
Office of the Immigration Judge under 8 CFR 208.4 (b) and (c),
respectively, applications shall be filed by mail with the Service
Center servicing the Asylum Office with jurisdiction over the place of
the applicant's residence. The amended paragraph also would specify
that addresses of the Service Centers shall be made available through
the local INS Information Unit. This amendment will conform the
regulations to current INS practice and will not have an adverse impact
on any applicant for asylum or withholding of deportation. Incorrectly
addressed applications shall continue to be forwarded to the
appropriate Service Center.
8 CFR 208.4(a) also would be amended to provide that in the case of
an applicant convicted of an aggravated felony, the Asylum Office shall
not forward a copy of the application to the Department of State. This
amendment is adopted from the prior proposed rule on aliens convicted
of aggravated felonies. See 58 FR 38312 (July 16, 1993).
8 CFR 208.4 also would be amended by adding a new paragraph (d)
requiring asylum applicants to include with their Form I-589 the fee
set forth in 8 CFR 103.7(b)(1).
8 CFR 208.7 would be amended to state that, unless he or she has
been convicted of an aggravated felony, an applicant for asylum shall
be eligible to submit an application for employment authorization (I-
765) under 8 CFR 274a.12(c)(8). Such an application may be submitted no
earlier than 150 days after the date on which the applicant's
application for asylum was filed in accordance with amended 8 CFR
208.4. An applicant whose I-589 application has been denied by an
Immigration Judge during this 150-day period shall not be eligible to
apply for employment authorization as an asylum applicant even if he or
she is appealing the denial. Furthermore, an applicant who is in legal
immigration status and whose I-589 application is denied by an Asylum
Officer within the 150-day period shall not be eligible for work
authorization under 8 CFR 274a.12(c)(8). An initial application for
employment authorization shall be adjudicated by the INS, after the
expiration of the 150-day period, within 30 days of receipt. An
applicant whose I-589 application is denied by an Immigration Judge or
by an Asylum Officer after the filing of the I-765, but prior to
adjudication of the I-765 within the 30-day period, shall be denied
employment authorization under 8 CFR 274a.12(c)(8). For purposes of
computing the 150-day and 30-day periods, these periods shall be
extended by the equivalent of any delay requested or caused by the
applicant. The periods also shall be extended by the equivalent of the
time between the issuance of a request for evidence under 8 CFR
103.2(b)(8) and the receipt of the applicant's response to such
request.
In addition, 8 CFR 208.7 would establish that an applicant who has
been convicted of an aggravated felony shall not be granted employment
authorization. If an applicant has previously received employment
authorization and his or her application for asylum or withholding of
deportation is denied because the applicant has been convicted of an
aggravated felony, the employment authorization shall terminate
automatically, as of the date of the denial. This amendment is adopted
from the prior proposed rule on aliens convicted of aggravated
felonies. See 58 FR 38312, 38313 (July 16, 1993).
8 CFR 208.7(d) would be amended to require that, in order for
employment authorization to be renewed before its expiration,
applications for renewal must be received by the INS at least ninety
days before the employment authorization expires.
8 CFR 208.9 would be amended in several respects. These amendments
include provisions adopted from the prior proposed rule on aliens
convicted of aggravated felonies. See 58 FR 38312-38314 (July 16,
1993).
First, paragraph (a) would be amended to provide that an Asylum
Officer has discretion to conduct an interview in those cases such
Officer deems appropriate.
Second, 8 CFR 208.9 (b) and (c) would be amended to require the
asylum applicant to provide full identifying information at the time of
any interview and to authorize the Asylum Officer to further register
or verify that identity, including through the use of electronic means.
The Asylum Officer also would be permitted to verify the identity of
the interpreter.
Third, 8 CFR 208.9(d) would be amended to require that, at the
conclusion of the interview, the applicant be notified that he or she
must appear in person to acknowledge receipt of the written decision of
the Asylum Officer.
Fourth, a new paragraph (g) would be added to 8 CFR 208.9,
specifying that an applicant who is unable to proceed with his or her
interview in English must supply a competent interpreter, at no expense
to the INS. The proposed paragraph (g) would prohibit the applicant's
attorney or a witness testifying on the applicant's behalf from serving
as the interpreter.
8 CFR 208.11 would be amended to change the role of the Department
of State from one of routinely providing comments on individual cases
to one of providing primarily generic, non-case-specific, current
country conditions information. The rule would eliminate the mandatory
period during which Asylum Officers and Immigration Judges must await
receipt of State Department comments in individual cases, but would
permit the State Department to comment on individual cases at its
discretion.
8 CFR 208.12(a) would be amended to eliminate the provisions
requiring an Asylum Officer to provide the applicant with an
opportunity to inspect, explain, or rebut the material(s) relied upon
to find that the applicant's claim has not been approved. The Asylum
Officer will continue to rely upon materials provided by the Department
of State, the District Director, or other credible sources in making a
decision to grant asylum, to refer the case to an Immigration Judge, or
to deny asylum for applicants having another lawful immigration status.
The applicant will have the opportunity to review such materials to the
extent they are relied upon in the course of proceedings before an
Immigration Judge.
8 CFR 208.14 would be amended by inserting a new paragraph (b) to
limit the authority of an Asylum Officer to deny applications for
asylum or withholding of deportation to those cases involving aliens
who do not appear to be excludable or deportable under sections 212 or
242 of the Act (8 U.S.C. 1182 or 1252), respectively. Officers would
continue to have the authority to grant applications from any
applicant, provided, as a present, that the applicant is not in
exclusion or deportation proceedings. If the Officer does not grant the
application, and the applicant is subject to exclusion or deportation
proceedings, the Officer shall refer the application to an Immigration
Judge for adjudication in connection with those proceedings. In
addition, a new paragraph (d)(4) would specify that conviction of an
aggravated felony is a mandatory ground for denial. This amendment is
adopted from the prior proposed rule or aliens convicted of aggravated
felonies. See 58 FR 38312, 38313 (July 16, 1993).
8 CFR 208.14 also would be amended by adding a new paragraph (e) to
set forth a ground for discretionary denial. Asylum applications could
be denied in the discretion of the Attorney General when the applicant
can and will be deported or returned to a country in which the alien
would not face persecution or harm and would have access to a full and
fair procedure for determining his or her refugee status in accordance
with a bilateral or multilateral arrangement with the United States
governing such matters. Nothing in this provision would limit the
discretion of the Attorney General to permit consideration of the
application in instances where there is good reason for the applicant
to remain in the United States.
8 CFR 208.16 would be amended to restrict the adjudication by
Asylum Officers of claims for withholding of deportation to cases
involving crewmen, stowaways, and aliens temporarily excluded under
section 235(c) of the Act, 8 U.S.C. 1225(c), which cases come under the
jurisdiction of the Asylum Officer pursuant to 8 CFR 253.1(f). This
section also would be amended to specify that an alien convicted of an
aggravated felony is ineligible to receive withholding of deportation.
This amendment is adopted from the prior proposed rule on aliens
convicted of aggravated felonies. See 58 FR 38312, 38313 (July 16,
1993).
8 CFR 208.17 would be amended to provide for service of a referral
under 8 CFR 208.14(b) to the applicant, the District Director, and the
Office of Refugees, Asylum, and Parole.
8 CFR 208.18(b) would be amended to provide that in a case referred
to an Immigration Judge under amended 8 CFR 208.14(b), the Asylum
Officer, pursuant to the authority set forth in 8 CFR 235.6(a) and
242.1(a), shall issue either an Order to Show Cause to place the
applicant in deportation proceedings or a Notice to Applicant for
Admission Detained for Hearing Before Immigration Judge to place the
applicant in exclusion proceedings.
8 CFR 208.20 would be amended to clarify that a person eligible for
work authorization as a result of being granted asylum shall receive
documentation establishing such authorization expeditiously, upon
application to the Service.
8 CFR 208.21 would be amended to specify that an asylee's spouse or
child accompanying or following to join the asylee may not be granted
asylum if the spouse or child has been convicted of an aggravated
felony. This amendment is adopted from the prior proposed rule on
aliens convicted of aggravated felonies. See 58 FR 38312, 38314 (July
16, 1993).
8 CFR 208.24 would be amended to clarify that the procedure stated
therein for revocation of a grant of asylum shall be followed when
asylum was granted by a District Director. This section also would be
amended to eliminate paragraph (f), regarding the authority of the
Deputy Attorney General, assisted by the Asylum Policy and Review Unit,
to review decisions to revoke asylum or withholding or withholding of
deportation. This change reflects the fact that the Asylum Policy and
Review Unit no longer exists.
8 CFR 236.3 and 8 CFR 242.17 would be amended to eliminate the
requirement that exclusion and deportation hearings be deferred until
the receipt of comments from the Department of State.
8 CFR 242.17(e) would be amended to provide that the INS may use
information contained in an asylum application submitted to an Asylum
Officer in accordance with 8 CFR 208.2 to form the basis for issuance
of an Order to Show Cause under 8 CFR 242.1
8 CFR 274a.12(c)(8) would be amended to conform the criteria for
eligibility for employment authorization to those set forth in amended
8 CFR 208.7(a). The text of 8 CFR 274a.12(c)(13) would be removed and
the paragraph reserved.
8 CFR 274a.13(a) would be amended to clarify that applicants for
employment authorization under 8 CFR 274a.12(a) are authorized to be
employed in the United States by virtue of their immigration status,
and that approval of applications for employment authorization filed
under 8 CFR 274a.12(c), except for those filed under 8 CFR
274a.12(c)(8), is within the discretion of the District Director.
Applications filed under 8 CFR 274a.12(c) will be adjudicated at the
Service Center or at such other INS office as the Commissioner shall
designate. This paragraph also would be amended to require that an
application for employment authorization or for renewal of employment
authorization based on a pending asylum application be filed with a
fee, or with an application for waiver of such fee, and that such
applications be filed either with the Service Center or with such other
INS office as the Commissioner may designate.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities, based upon the following factors.
This rule principally affects the adjudication of individual claims for
asylum and withholding of deportation and thus would have no
significant economic impact on small businesses, organizations, or
state or local governmental agencies. The amendments to regulations
concerning the issuance and renewal of employment authorization
documents could have a small and indirect impact upon business entities
by withholding employment authorization in certain cases.
The Department of Justice considers this rule to be a ``significant
regulatory action'' under section 3(f) of Executive Order 12866, and
accordingly has submitted this rule to the Office of Management and
Budget for review.
The proposed 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 Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
The Attorney General has reviewed this rule in light of section
2(c) of Executive Order 12778 and finds that the rule meets the
applicable standards provided in section 2(b) of the order.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 103-POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. Section 103.7, paragraph (b)(1) is amended by adding in proper
numerical sequence Form I-589 to the forms to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) (1) * * *
(1) * * *
* * * * *
Form I-589. For filing application for asylum or withholding of
deportation--$130 per application.
* * * * *
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION
3. The authority citation for part 208 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.
9701; 8 CFR part 2.
4. Section 208.1 is amended by:
a. Revising the first sentence in paragraph (a);
b. Removing in paragraph (a), in the second and fourth sentences,
the phrase ``Other 1, 1990'' and adding in its place ``(Insert date
final rule is published in the Federal Register)'';
c. Adding at the end of paragraph (a) a new sentence;
d. Revising the second sentence in paragraph (b); and
e. Removing in paragraph (c) the phase ``assist the Deputy Attorney
General and the Director of the Asylum Policy and Review Unit, in
coordination'' and adding in its place the word ``coordinate'', to read
as follows:
Sec. 208.1 General.
(a) This part shall apply to all adjudications of applications for
asylum or withholding of deportation, whether by an Asylum Officer or
an Immigration Judge, that occur on or after (Insert date final rule is
published in the Federal Register and all adjudications or referrals by
an Asylum Officer in accordance with Sec. 208.14. * * * The provisions
of this part relating to a person convicted of an aggravated felony, a
defined in section 101(a)(43) of the Act (8 U.S.C. 1101(a)(43)), shall
apply to applications for asylum or withholding of deportation that are
filed on or after November 29, 1990.
(b) * * * These shall include a corps of professional Asylum
Officers who are to receive special training in international human
rights law, conditions in countries of origin, and other relevant
national and international refugee laws. * * *
* * * * *
5. Section 208.2 is amended by:
a. Revising the second sentence in paragraph (a); and
b. Revising the second and third sentences in paragraph (b), to
read as follows:
Sec. 208.2 Jurisdiction.
(a) * * * All such applications shall be either adjudicated or
referred by Asylum Officers under this part in accordance with
Sec. 208.14, provided that with the exception of cases involving
crewman, stowaways, or aliens temporarily excluded under section 235(c)
of the Act, 8 U.S.C. 1225(c), which are within the jurisdiction of an
Asylum Officer pursuant to 8 CFR 253.1(f), an Asylum Officer shall not
decide whether an alien is entitled to withholding of deportation under
section 243(h) of the Act, 8 U.S.C. 1253(h).
(b) * * * The Immigration Judge shall make a determination on such
claims. In cases where the adjudication of an application has been
referred in accordance with Sec. 208.14, that application shall be
forwarded with the charging document to the Office of the Immigration
Judge by the Office of Refugees, Asylum, and Parole.
6. Section 208.3 is amended by:
a. Removing from the first sentence in paragraph (a) the word
``quadruplicate'' and adding in its place ``triplicate'';
b. Revising the third and fourth sentences in paragraph (a); and
c. Adding new paragraphs (c) and (d), to read as follows:
Sec. 208.3 Form of application.
(a) * * * An application shall be accompanied by one completed Form
FD-258 (Fingerprint Card) for every individual included on the
application who is fourteen years of age or older. Additional
supporting material may also accompany the application and, if so, must
be provided in triplicate. Forms I-589 and FD-258 shall be available
from the INS and the Offices of Immigration Judges. * * *
* * * * *
(c) The application (Form I-589) shall be filed under the following
conditions and shall have the following consequences, as shall be noted
in the instructions on the application:
(1) Information provided in completing the application may be used
as a basis for the institution of, or as evidence in, exclusion
proceedings in accordance with part 236 of this chapter or deportation
proceedings in accordance with part 242 of this chapter;
(2) Information provided in the application may be used to satisfy
the burden of proof of the INS in establishing the applicant's
deportability under part 242 of this chapter;
(3) Mailing to the address provided on the application shall
constitute adequate service of all notices or other documents,
including an Order to Show Cause (Form I-221) or a Notice to Applicant
for Admission Detained for Hearing Before Immigration Judge (Form I-
122);
(4) The signatures on the application of the applicant and anyone
who assists the applicant are made subject to penalty of perjury and,
if the applicant later claims ignorance of the contents of the
application, may provide the basis for denial of the claim;
(5) An application that is incomplete or lacks a response to each
of the enumerated questions may be referred to an Immigration Judge for
adjudication or may be denied by the Asylum Officer; and
(6) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to
civil penalties under section 274C of the Act (8 U.S.C. 1324c). An
application for asylum or withholding of deportation that does not
include a response to each of the questions contained in the Form I-
589, that is unsigned, that is unaccompanied by the required materials
specified in paragraph (a) of this section, or that is unaccompanied by
the required fee or an application for fee waiver, in incomplete.
(d) The applicant must sign the application under penalty of
perjury. If a person other than an immediate relative of the applicant
has prepared or assisted the applicant in preparing the application,
that person also must sign the application under penalty of prejury and
provide his or her full mailing address.
7. Section 208.4 is amended by revising paragraph (a) and adding a
new paragraph (d) to read as follows:
Sec. 208.4 Filing the application.
* * * * *
(a) With the Service Center by mail. Except as provided in
paragraphs (b) and (c) of this section, applications for asylum or
withholding of deportation shall be filed directly by mail with the
Service Center servicing the Asylum Office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without
a United States residence, the applicant's current lodging or the land
border port of entry from which the alien seeks admission to the United
States. The addresses of the Service Centers shall be made available
through the local INS Information Unit. Upon receipt of the
application, except in the case of an alien who has been convicted of
an aggravated felony, the Service Center shall forward a copy of the
application to the Department of State.
* * * * *
(d) The applicant shall include the appropriate fee as prescribed
in 8 CFR 103.7(b)(1), or application for waiver of such fee as provided
in 8 CFR 103.7(c)(1), when submitting the application.
8. Section 208.5 is amended by removing from paragraph (b) ``235''
and adding in its place ``236''.
9. Section 208.7 is amended by:
a. Revising the section heading;
b. Revising paragraph (a);
c. Revising the introductory text of paragraph (b);
d. Adding a new paragraph (b)(3); and
e. In paragraph (d), removing the word ``sixty'' and adding in its
place ``ninety'', to read as follows:
Sec. 208.7 Employment authorization.
(a)(1) An applicant for asylum who has not been convicted of an
aggravated felony shall be eligible pursuant to Secs. 274a.12(c)(8) and
274a.13(a) of this chapter to submit an application for employment
authorization (Form I-765). The application for employment
authorization shall be submitted, with fee or application for waiver of
such fee, no earlier than 150 days after the date on which the
application for asylum has been filed in accordance with Sec. 208.4 of
this part. If an application for waiver of the fee is denied, the INS
shall not issue a document evidencing employment authorization until
the fee is paid. An applicant whose application for asylum has been
denied by an Immigration Judge or by an Asylum Officer within the 150-
day period shall not be eligible to apply for employment authorization.
After the expiration of the 150-day period, the INS shall have 30 days
from the date of filing of an initial application for employment
authorization to grant or deny that application. If the INS fails to
adjudicate the application within that period, the alien shall be
eligible for interim employment authorization under this chapter. If an
application for asylum is denied by an Immigration Judge or an Asylum
Officer within the 30-day period, but prior to a decision on the
application for employment authorization, the application for
employment authorization shall be denied.
(2) An applicant who has been convicted of an aggravated felony
shall not be granted employment authorization. In cases where an
applicant has previously received employment authorization and his or
her application for asylum or withholding of deportation is denied
because the applicant has been convicted of an aggravated felony, the
employment authorization shall terminate as of the date of the denial.
(3) For purposes of this paragraph, the limitations on the time
periods within which the alien may not apply for employment
authorization and within which the INS must respond to any such
application shall be construed as running only after the alien has
filed a complete asylum application in accordance with Sec. 208.3. Such
time limits shall be extended by the equivalent of any delay requested
or caused by the applicant. Such time limits also shall be extended by
the equivalent of the time between issuance of a request for evidence
under 8 CFR 103.2(b)(8) and the receipt of the applicant's response to
such request.
(4) An applicant who inexcusably fails to appear for a scheduled
interview before an Asylum Officer or hearing before an Immigration
Judge shall not be granted employment authorization.
(b) Subject to the restrictions in paragraph (b)(3) of this
section, employment authorization shall be renewable, in increments to
be determined by the Commissioner, for the continuous period of time
necessary for the Asylum Officer or Immigration Judge to decide the
asylum application and, if necessary, for final adjudication of any
administrative or judicial review.
* * * * *
(3) If an application for asylum filed on or after November 29,
1990 is denied pursuant to Sec. 208.14(c)(4) or Sec. 208.16(c)(2)(ii)
because the applicant has been convicted of an aggravated felony, any
employment authorization previously issued under Sec. 208.7(a) shall
automatically terminate as of the date of the denial.
* * * * *
10. Section 208.9 is amended by:
a. Revising paragraph (a);
b. Revising paragraph (b);
c. Revising paragraph (c);
d. Adding a new sentence at the end of paragraph (d);
e. Revising paragraph (e); and
f. Adding a new paragraph (g), to read as follows:
Sec. 208.9 Interview and procedure.
(a) Interviews on asylum applications are discretionary. For each
application for asylum or withholding of deportation within the
jurisdiction of the Office of Refugees, Asylum, and Parole, an
interview may be conducted by an Asylum Officer, either at the time of
the application or at a later date to be determined by the Officer.
Applications within the jurisdiction of an Immigration Judge are to be
adjudicated under the rules of procedure established by the Executive
Office for Immigration Review in parts 3, 236, and 242 of this chapter.
(b) The Asylum Officer shall conduct the interview in a
nonadversarial manner and, at the request of the applicant, separate
and apart from the general public. The purpose of the interview shall
be to elicit all relevant and useful information bearing on the
applicant's eligibility for the form of relief sought. At the time of
the interview, the applicant must provide complete information
regarding his or her identity, including name, date and place of birth,
and nationality, and may be required to register this identity
electronically or through any other means designated by the Attorney
General. The applicant may have counsel or a representative present and
may submit affidavits of witnesses.
(c) The Asylum Officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) * * * Upon completion of the interview, the applicant also
shall be informed that he or she must appear in person to receive and
to acknowledge receipt of the decision of the Asylum Officer, and any
other accompanying material, at a time and place designated by the
Asylum Officer.
(e) The Asylum Officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview if an
interview is conducted. As a matter of discretion, the Asylum Officer
may grant the applicant a brief extension of time following an
interview during which the applicant may submit additional evidence.
Any such extension shall extend by equivalent time the periods
specified by Sec. 208.7 for the filing and adjudication of employment
authorization applications.
* * * * *
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the INS, a competent interpreter fluent
in both English and the applicant's native language. The interpreter
must be at least 18 years of age. Neither the applicant's attorney of
record nor a witness testifying on the applicant's behalf may serve as
the applicant's interpreter. Unexcused failure to meet this requirement
may be considered an unexcused failure to appear for the interview for
purposes of Sec. 208.10.
11. Section 208.11 is amended by:
a. Revising the section heading;
b. Removing paragraph (b);
c. Redesignating paragraphs (a) and (c) as paragraphs (b) and (d),
respectively;
d. Adding a new paragraph (a);
e. Revising newly redesignated paragraph (b); and
f. Adding a new paragraph (c), to read as follows:
Sec. 208.11 Comments from the Department of State.
(a) At its option, the Department of State may provide detailed
country conditions information addressing the specific conditions
relevant to eligibility for refugee status according to the grounds
specified in section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42). Any
such information relied upon by an Immigration Judge in deciding a
claim for asylum or withholding of deportation shall be made part of
the record and the parties shall be provided an opportunity to review
and respond to such information prior to the issuance of a decision.
(b) At its option, the Department of State also may comment on an
application it receives pursuant to Sec. 208.4(a), Sec. 236.3, or
Sec. 242.17 of this chapter by providing:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her own experiences;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted in his or her country of nationality or
habitual residence and the frequency of such persecution;
(3) Such other information as it deems relevant to deciding whether
to grant or to deny the application.
(c) Asylum Officers and Immigration Judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate. Any such comments shall be made part of the record
and the parties shall be provided an opportunity to review and respond
to such comments prior to the issuance of a decision.
* * * * *
Sec. 208.12 [Amended]
12. In Sec. 208.12, paragraph (a) is amended by removing from the
first sentence the term, ``the Asylum Policy and Review Unit,'' and by
removing the second sentence in its entirety.
Sec. 208.13 [Amended]
13. In Sec. 208.13, paragraph (b)(1)(ii) is amended by removing
from the last sentence the citation ``Sec. 208.14(c)'' and adding in it
place ``Sec. 208.14(d)''.
14. Section 208.14 is amended by:
a. Revising the section heading;
b. Removing in paragraph (a) the words ``or Asylum Officer'';
c. Removing in paragraph (a) the phrase ``paragraph (c)'' and
adding in its place the phrase ``paragraph (d)'';
e. Redesignating paragraph (b) and (c) as paragraphs (c) and (d)
respectively;
f. Adding a new paragraph (b);
g. Removing in redesignated paragraph (d)(2) the word ``or'' at the
end of the paragraph;
h. Removing in redesignated paragraph (d)(3) the ``.'' at the end
of the paragraph and adding in its place ``; or'';
i. Adding a new paragraph (d)(4); and
j. Adding a new paragraph (e), to read as follows:
Sec. 208.14 Approval, denial, or referral of application.
* * * * *
(b) An Asylum Officer may grant or deny asylum in the exercise of
discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act (8 U.S.C. 1101(a)(42)) unless otherwise
prohibited by paragraph (d) of this section, except that an Asylum
Officer shall not deny asylum in the case of an alien who shall appear
to be deportable under section 241 of the Act (8 U.S.C. 1251) or
excludable under section 212 of the Act (8 U.S.C. 1182), other than a
crewman, stowaway, or alien temporarily excluded under section 235(c)
of the Act (8 U.S.C. 1225(c)). In such cases, the Asylum Officer shall
either grant asylum or refer the application to an Immigration Judge
for adjudication in deportation or exclusion proceedings commenced in
accordance with part 236 or part 242 of this chapter, respectively. The
Asylum Officer shall notify the applicant of a referral under this
section. Adjudication of an asylum application filed by a crewman,
stowaway, or alien temporarily excluded under section 235(c) of the Act
(8 U.S.C. 1225(c)) shall be conducted under the procedures set forth in
Sec. 253.1(f) of this chapter.
* * * * *
(d) * * *
(4) The alien has been convicted of an aggravated felony, as
defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).
(e) Discretionary denials. An application from an alien who is
otherwise eligible for asylum may be denied in the discretion of the
Attorney General if the alien can and will be deported or returned to a
country in which the alien would not face harm or persecution and would
have access to a full and fair procedure for determining his or her
asylum claim in accordance with a bilateral or multilateral arrangement
with the United States governing such matter.
15. Section 208.16 is amended by revising paragraph (a) and
paragraph (c)(2)(ii) to read as follows:
Sec. 208.16 Entitlement to withholding of deportation.
(a) Consideration of application for withholding of deportation.
With the exception of cases that are within the jurisdiction of an
Asylum Officer pursuant to 8 CFR 253.1(f), an Asylum Officer shall not
decide whether an alien is entitled to withholding of deportation under
section 243(h) of the Act, 8 U.S.C. 1253(h). If the application for
asylum is granted, no decision on withholding of deportation will be
made unless and until the grant of asylum is later revoked or
terminated and deportation proceedings at which a new request for
withholding of deportation is made are commenced. In such proceedings,
an Immigration Judge may adjudicate both a renewed asylum claim and a
request for withholding of deportation simultaneously whether or not
asylum is granted.
* * * * *
(c) * * *
(2) * * *
(ii) The alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of
the United States. An alien who has been convicted of an aggravated
felony shall be considered to have committed a particularly serious
crime and to constitute a danger to the community of the United States.
* * * * *
16. Section 208.17 is revised to read as follows:
Sec. 208.17 Decision.
The decision of an Asylum Officer to grant or to deny asylum or
withholding of deportation, or to refer an application in accordance
with Sec. 208.14(b) shall be communicated in writing to the applicant,
the Assistant Commissioner, Refugees, Asylum, and Parole, and the
District Director having jurisdiction over the place of the applicant's
residence or over the port of entry from which the applicant sought
admission to the United States. A letter communicating denial of the
application shall state why asylum or withholding of deportation was
denied. The letter also shall contain an assessment of the applicant's
credibility, unless the application was denied pursuant to
Sec. 208.14(c)(4) or Sec. 208.16(c)(2)(ii). Pursuant to Sec. 208.9(d),
an applicant may be required to appear in person to receive and to
acknowledge receipt of the decision.
17. Section 208.18 is amended by:
a. Removing from the second sentence in paragraph (a) the phrase
``, assisted by the Asylum Policy and Review Unit,'';
b. Removing from the third sentence in paragraph (a) the phrase ``,
or to the Asylum Policy and Review Unit,''; and
c. Revising paragraph (b), to read as follows:
Sec. 208.18 Review of decisions and appeal.
* * * * *
(b) Except as provided in Sec. 253.1(f) of this chapter, there
shall be no appeal from a decision of an Asylum Officer. In a case
referred to an Immigration Judge in accordance with Sec. 208.14(b), the
Supervisory Asylum Officer, pursuant to the authority set forth in
Secs. 235.6(a) and Sec. 242.1(a) of this chapter, shall issue
respectively a Notice to Applicant for Admission Detained for Hearing
Before Immigration Judge (Form I-122) or an Order to Show Cause (Form
I-221).
* * * * *
18. Section 208.20 is revised to read as follows:
Sec. 208.20 Approval and employment authorization.
When an alien's application for asylum is granted, he or she is
granted asylum status for an indefinite period. All approved asylees
and their eligible derivative family members are authorized to be
employed in the United States pursuant to Sec. 274a.12(a)(5) of this
chapter and must, if intending to be employed, apply to the INS for a
document evidencing such authorization. The INS shall issue such
document within 30 days of the receipt of the application therefor.
19. Section 208.21 is amended by:
a. Revising the introductory text of paragraph (a);
b. Removing at the end of paragraph (a)(2) the word ``or'';
c. Removing at the end of paragraph (a)(3) the ``.'' and adding in
its place ``; or'';
d. Adding a new paragraph (a)(4), to read as follows:
Sec. 208.21 Admission of asylee's spouse and children.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, or child, as defined in section 101(b)(1) (A), (B), (C), (D), (E)
or (F) of the Act, also may be granted asylum if accompanying or
following to join the principal alien who was granted asylum, unless it
is determined that: * * *
* * * * *
(4) The spouse or child has been convicted of an aggravated felony,
as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).
* * * * *
20. Section 208.24 is amended by:
a. Revising the heading and introductory text of paragraph (a);
b. Removing in paragraph (a)(3), the citation ``208.14(c)'' and
adding in its place the citation ``208.14(d)'';
c. Removing paragraph (f); and
d. Redesignating paragraph (g) as paragraph (f), to read as
follows:
Sec. 208.24 Revocation of asylum or withholding of deportation.
(a) Revocation of asylum by the Assistant Commissioner, Office of
Refugees, Asylum, and Parole. Upon motion by the Assistant Commissioner
and following a hearing before an Asylum Officer, the grant to an alien
of asylum made under the jurisdiction of an Asylum Officer or a
District Director may be revoked if, by a preponderance of the
evidence, the INS establishes that: * * *
* * * * *
PART 236--EXCLUSION OF ALIENS
21. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
22. Section 236.3 is amended by:
a. Revising the introductory text of paragraph (a);
b. Removing from the first sentence in paragraph (b) the citation
``Sec. 208.4(b)'' and adding in its place the citation
``Sec. 208.4(c)''; and
c. Revising the second sentence in paragraph (b), to read as
follows:
Sec. 236.3 Applications for asylum or withholding of deportation.
(a) If an alien expresses fear of persecution or harm upon return
to his or her country of origin or to a country to which the alien may
be deported after exclusion from the United States pursuant to part 237
of this chapter, and the alien has not previously filed an application
for asylum or withholding of deportation that has been referred to the
Immigration Judge by an Asylum Officer in accordance with
Sec. 208.14(b) of this chapter, the Immigration Judge shall: * * *
(b) * * * Upon receipt of an application that has not been referred
by an Asylum Officer, the Office of the Immigration Judge shall forward
a copy to the Department of State pursuant to Sec. 208.11 of this
chapter and shall calendar the case for a hearing. * * *
* * * * *
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
23. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252b, 1254, 1362; 8 CFR part 2.
24. Section 242.17 is amended by:
a. Revising the introductory text of paragraph (c)(2);
b. Removing from the first sentence in paragraph (c)(3) the
citation ``Sec. 208.4(b)'' and adding in its place the citation
``Sec. 208.4(c)'';
c. Revising the second sentence in paragraph (c)(3); and
d. Adding in paragraph (e) a new sentence immediately after the
first sentence, to read as follows:
Sec. 242.17 Ancillary matters, applications.
* * * * *
(c) * * *
(2) If the alien expresses fear of persecution or harm upon return
to any of the countries to which the alien might be deported pursuant
to paragraph (c)(1) of this section, and the alien has not previously
filed an application for asylum or withholding of deportation that has
been referred to the Immigration Judge by an Asylum Officer in
accordance with 8 CFR 208.14(b), the Immigration Judge shall: * * *
(3) * * * Upon receipt of an application that has not been referred
by an Asylum Officer, the Office of the Immigration Judge shall forward
a copy to the Department of State pursuant to Sec. 208.11 of this
chapter and shall calendar the case for a hearing. * * *
* * * * *
(e) * * * However, nothing in this section shall prohibit the INS
from using information supplied in an application for asylum or
withholding of deportation submitted to an Asylum Officer pursuant to 8
CFR 208.2 as the basis for issuance of an Order to Show Cause under 8
CFR 242.1. * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
25. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
26. Section 274a.12 is amended by:
a. Revising paragraph (c)(8);
b. Revising the first sentence in paragraph (c)(10); and
c. Removing and reserving paragraph (c)(13), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(8) An alien who has filed a complete application for asylum or
withholding of deportation pursuant to part 208 of this chapter, whose
application has not been decided, and who is eligible to apply for
employment authorization under Sec. 208.7 of this chapter because the
150-day period set forth in that section has expired. Employment
authorization may be granted according to the provisions of Sec. 208.7
in increments to be determined by the Commissioner and shall expire on
a specified date.
* * * * *
(10) An alien who has filed an application for suspension of
deportation pursuant to part 244 of this chapter, if the alien
establishes an economic need to work. * * *
* * * * *
(13) [Reserved].
* * * * *
27. Section 274a.13 is amended by revising paragraph (a) and the
first sentence of paragraph (d), to read as follows:
Sec. 274a.13 Application for employment authorization.
(a) General. Aliens authorized to be employed under Sec. 274a.12(a)
(3)-(8) and (10)-(13) must file an application for employment
authorization (Form I-765) in order to obtain documentation evidencing
this fact.
(1) Aliens who may apply for employment authorization under
Sec. 274a.12(c), except for those who may apply under
Sec. 274a.12(c)(8), shall file a Form I-765 with the district director
having jurisdiction over the applicant's residence, or the district
director having jurisdiction over the port of entry at which the alien
applies, or with such other INS office as the Commissioner may
designate. The approval of applications filed under Sec. 274a.12(c),
except for Sec. 274a.12(c)(8), shall be within the discretion of the
district director. Where economic necessity has been identified as a
factor, the alien must provide information regarding his or her assets,
income, and expenses in accordance with instructions on Form I-765.
(2) An initial application for employment authorization (Form I-
765) filed under Sec. 274a.12(c)(8) shall be filed, with fee or with
application for waiver of such fee, in accordance with the instructions
on or attached to Form I-765, with the appropriate Service Center or
with such other INS office as the Commissioner may designate. The
applicant also must submit a copy of the underlying application for
asylum or withholding of deportation, together with evidence that the
application has been field in accordance with part 208 of this chapter.
An application for an initial employment authorization filed in
relation to a pending claim for asylum shall be adjudicated in
accordance with Sec. 208.7 of this chapter. An application for renewal
of employment authorization submitted in relation to a pending claim
for asylum, as provided for in Sec. 208.7 of this chapter, shall be
filed, with fee or with application for waiver of such fee, in
accordance with the instructions on or attached to Form I-765, with the
appropriate Service Center or with such other INS office as the
Commissioner may designate.
* * * * *
(d) Interim employment authorization. The district director shall
adjudicate the application within 90 days from the date of receipt of
the application by the INS; provided, however, that in cases where the
alien is temporarily barred from seeking employment authorization
because of a pending asylum application or exclusion or deportation
proceedings, the district director shall adjudicate the employment
authorization within 30 days of receipt. * * *
Dated: March 24, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-7500 Filed 3-29-94; 8:45 am]
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