[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Rules and Regulations]
[Pages 8478-8496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4140]



[[Page 8477]]

_______________________________________________________________________

Part IV





Department of Justice





_______________________________________________________________________



Immigration and Naturalization Service



_______________________________________________________________________



8 CFR Parts 3, 103, 208, etc.



Regulations Concerning the Convention Against Torture; Interim Rule

  Federal Register / Vol. 64, No. 33 / Friday, February 19, 1999 / 
Rules and Regulations  

[[Page 8478]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, 208, 235, 238, 240, 241, 253, and 507

[INS No. 1976-99; AG Order No. 2207-99]
RIN 1115-AF39


Regulations Concerning the Convention Against Torture

AGENCY: Immigration and Naturalization Service, and Executive Office 
for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule amends Department of Justice regulations by 
establishing procedures for raising a claim for protection from 
torture, as directed by the Foreign Affairs Reform and Restructuring 
Act of 1998. Section 2242 of that Act requires the heads of appropriate 
agencies to prescribe regulations for implementing United States 
obligations under the United Nations Convention Against Torture and 
Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention 
Against Torture or Convention). Under Article 3 of the Convention 
Against Torture (Article 3), the United States has agreed not to 
``expel, return (`refouler') or extradite'' a person to another state 
where he or she would be tortured. The interim rule establishes 
procedures for ensuring compliance with Article 3 with respect to 
removal of aliens from the United States by integrating many Convention 
Against Torture requests into the present scheme governing asylum and 
withholding determinations before the Immigration Court. For persons 
subject to reinstatement, administrative removal, expedited removal, or 
other streamlined proceedings, excluding those relating to aliens 
inadmissible on security and related grounds, the rule establishes a 
screening mechanism followed by Immigration Court review that is 
similar to the screening procedure currently used in determining 
credible fear under expedited removal. The rule also establishes 
``deferral of removal,'' a new, limited form of protection that will be 
accorded aliens who would be tortured in the country of removal but who 
are barred from withholding of removal. Finally, this interim 
regulation serves as notice to the public that, upon the effective date 
of this rule, the informal procedure currently in place for considering 
Convention Against Torture requests will end and those persons who have 
raised a claim under the informal procedure will be given an 
opportunity, as prescribed by this rule, to have their cases reviewed 
under the new procedures.

DATES: Effective date: This interim rule is effective March 22, 1999.
    Comment date: written comments must be submitted on or before April 
20, 1999.

ADDRESSES: Please submit written comments in original and three copies 
to the Director, Policy Directives and Instructions Branch, Immigration 
and Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1976-99 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: For matters relating to the 
Immigration and Naturalization Service: Dorothea Lay, 425 I Street, NW, 
Washington, DC 20536, telephone number (202) 514-2895. For matters 
relating to the Executive Office for Immigration Review: Margaret M. 
Philbin, General Counsel, Executive Office for Immigration Review, 
Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia, 22041, 
telephone number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Background

    On October 21, 1998, the President signed into law legislation 
which requires that ``[n]ot later than 120 days after the date of 
enactment of this Act, the heads of the appropriate agencies shall 
prescribe regulations to implement the obligations of the United States 
under Article 3 of the United Nations Convention Against Torture and 
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, 
subject to any reservations, understandings, declarations, and provisos 
contained in the United States Senate resolution of ratification of the 
Convention.'' Section 2242(b) of the Foreign Affairs Reform and 
Restructuring Act of 1998 (Pub. L. 105-277, Division G, Oct. 21, 1998).
    Obligations under the Convention Against Torture have been in 
effect for the United States since November 20, 1994. Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, 
U.N. Doc. A/39/51 (1984) [hereinafter Convention or Convention Against 
Torture]. On October 21, 1994, President Clinton deposited the United 
States instrument of ratification of the Convention with the Secretary 
General of the United Nations. Consistent with its terms, the 
Convention Against Torture entered into force for the United States 30 
days later. Under Article 3, the United States had agreed not to 
``expel, return (`refouler') or extradite'' a person to another state 
where he or she would be tortured. The Department of State is 
responsible for carrying out extradition requests and will promulgate 
regulations to ensure compliance with Article 3 in those cases. In 
other cases, the Attorney General is charged with expelling or 
returning aliens from the United States to other countries. This rule 
is published pursuant to this mandate to implement United States 
obligations under Article 3 in the context of the Attorney General's 
removal of aliens Article 3 provides as follows:
    1. No State Party shall expel, return, (``refouler'') or extradite 
a person to another State where there are substantial grounds for 
believing that he or she would be in danger of being subjected to 
torture.
    2. For the purpose of determining whether there are such grounds, 
the competent authorities shall take into account all relevant 
considerations including, where applicable, the existence in the State 
concerned of a consistent pattern of gross, flagrant, or mass 
violations of human rights.
    This Article is similar in some ways to Article 33 of the 1951 
Convention relating to the Status of Refugees. The Convention relating 
to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (hereinafter 
Refugee Convention). Article 33 provides that ``[n]o Contracting State 
shall expel or return (`refouler') a refugee in any manner whatsoever 
to the frontiers of territories where his life or freedom would be 
threatened on account of race, religion, nationality, membership of a 
particular social group or political opinion.'' The United States 
currently implements Article 33 of the Refugee Convention through the 
withholding of removal provision in section 241(b)(3) (formerly section 
243(h)) of the Immigration and Nationality Act (INA or the Act). That 
provision, as interpreted by the courts, requires the Attorney General 
to withhold an alien's removal to a country where it is more likely 
than not that the alien's life or freedom would be threatened on 
account of one of the five grounds mentioned above. See INS v. Stevic, 
467 U.S. 407, 429-30 (1984).
    However, there are some important differences between withholding 
of removal under section 241(b)(3) of the Act and Article 3 of the 
Convention Against Torture. First, several categories of individuals, 
including persons who

[[Page 8479]]

assisted in Nazi persecution or engaged in genocide, persons who have 
persecuted others, persons who have been convicted of particularly 
serious crimes, persons who are believed to have committed serious non-
political crimes before arriving in the United States, and persons who 
pose a danger to the security of the United States, are ineligible for 
withholding of removal. See INA section 241(b)(3)(B). Article 3 of the 
Convention Against Torture does not exclude such persons from its 
scope. Second, section 241(b)(3) applies only to aliens whose life or 
freedom would be threatened on account of race, religion, nationality, 
and membership in a particular social group or political opinion. 
Article 3 covers persons who fear torture that may not be motivated by 
one of those five grounds. Third, the definition of torture does not 
encompass all types of harm that might qualify as a threat to life or 
freedom. Thus, the coverage of Article 3 is different from that of 
section 241(b)(3): broader in some ways and narrower in others.
    Until the October 21, 1998 legislation, there was no statutory 
provision to implement Article 3 of the Convention Against Torture in 
United States domestic law. When the United States Senate gave advice 
and consent to ratification of the Convention Against Torture, it made 
a declaration that Articles 1 through 16 were not self-executing. 
Recognizing, however, that ratification of the Convention represented a 
statement by the United States to the international community of its 
commitment to comply with the Convention's provisions to the extent 
permissible under the Constitution and existing federal statutes, the 
Department of Justice sought to conform its practices to the Convention 
by ensuring compliance with Article 3 in the case of aliens who are 
subject to removal from the United States.
    In order to conform to the Convention before the enactment of 
implementing legislation, the Immigration and Naturalization Service 
(INS or Service) adopted a pre-regulatory administrative process to 
assess the applicability of Article 3 to individual cases in which an 
alien is subject to removal. Under this pre-regulatory administrative 
process, upon completion of deportation, exclusion, or removal 
proceedings and prior to execution of a final order of removal, the INS 
has considered whether removing an alien to a particular country is 
consistent with Article 3. If it is determined that the alien could not 
be removed to the country in question consistent with Article 3, the 
INS has used its existing discretionary authority to ensure that the 
alien is not removed to that country for so long as he or she is likely 
to be tortured there. See INA Sec. 103(a); 8 CFR 2.1.
    In formulating its pre-regulatory administrative process to conform 
to Article 3 in the context of the removal of aliens, the INS has been 
careful not to expand upon the protections that Article 3 grants. Only 
execution of an order of removal to a country where an alien is more 
likely than not to be tortured would violate the Convention. Therefore, 
the INS has not addressed the question of whether Article 3 prohibits 
removal in an individual case until there is a final administrative 
order of removal to a place where an alien claims that he or she would 
be tortured, and until all appeals, requests for review, or other 
administrative or judicial challenges to execution of that order have 
been resolved. This approach has allowed the INS to address the 
applicability of Article 3 to a case only when actually necessary to 
comply with the Convention. It has also allowed an individual alien to 
exhaust all avenues for pursuing any other more extensive benefit or 
protection for which he or she may be eligible before seeking the 
minimal guarantee provided by Article 3 that he or she will not be 
returned to a specific country where it is likely that he or she would 
be tortured. At the same time, this approach has allowed the INS, the 
agency responsible for executing removal orders, to ensure that no 
order is executed under circumstances that would violate the 
Convention.

Goals of Interim Rule

    Pursuant to statutory mandate, the Department of Justice now 
publishes this rule in order to implement the United States' Article 3 
obligations in the context of the removal of aliens by the Attorney 
General. The rule is published as an interim rule, effective 30 days 
after the date of publication. This rule is intended to create fair and 
efficient provisions to implement Article 3 within the overall 
regulatory framework for the issuance of removal orders and decisions 
about the execution of such orders.
    The primary goals of this rule are to establish procedures that 
ensure that no alien is removed from the United States under 
circumstances that would violate Article 3 without unduly disrupting 
the issuance and execution of removal orders consistent with Article 3. 
To this end, we have designed a system that will allow aliens subject 
to the various types of removal proceedings currently afforded by the 
immigration laws to seek, and where eligible, to be accorded protection 
under Article 3. At the same time, we have created mechanisms to 
quickly identify and resolve frivolous claims to protection so that the 
new procedures cannot be used as a delaying tactic by aliens who are 
not in fact at risk.
    In cases subject to streamlined, expedited removal processes under 
current law, the rule employs screening mechanisms to quickly identify 
potentially meritorious claims to protection and to resolve frivolous 
ones with dispatch. For example, the rule allows for the screening of 
aliens arriving at ports of entry to determine whether they establish a 
credible fear of torture. This screening will be conducted in 
conjunction with the existing credible fear of persecution screening 
process, so that it will not complicate or delay the expedited removal 
process established by Congress for arriving aliens. If an alien passes 
this threshold-screening standard, his or her claim for protection 
under Article 3 will be further examined by an immigration judge in the 
context of removal proceedings under section 240 of the Act. The 
screening mechanism also allows for the expeditious review by an 
immigration judge of a negative screening determination and the quick 
removal of an alien with no credible claim to protection.
    Furthermore, the rule establishes a new screening process to 
rapidly identify and assess both claims for withholding of removal 
under section 241(b)(3) of the Act and for protection under the 
Convention by either aliens subject to administrative removal for 
aggravated felons under section 238(b) of the Act or to reinstatement 
of a previous order of removal under section 241(a)(5) of the Act. 
Modeled on the credible fear screening mechanism, this screening 
process will also allow for the fair and expeditious resolution of such 
claims without unduly disrupting the streamlined removal processes 
applicable to these aliens.
    The cases of alien terrorists and other aliens subject to 
administrative removal under section 235(c) of the Act will be handled 
through the administrative process in which the INS issues and executes 
the removal order. Cases handled under section 235(c) are only a few 
each year, and typically involve highly sensitive issues and 
adjudication based on classified information under tight controls. 
Thus, by retaining the ability to assess the applicability of Article 3 
through the administrative removal process, the INS will both maintain 
a workable process and ensure U.S. compliance with Article 3 in these 
unusual cases. Similarly, the regulations

[[Page 8480]]

provide that an alien whose removal has been ordered by the Alien 
Terrorist Removal Court under the special procedures set forth in Title 
V of the Act shall not be removed to a particular country if the 
Attorney General determines, in consultation with the Secretary of 
State, that removal to that country would violate Article 3.
    For aliens subject to removal proceedings under section 240 of the 
Act, exclusion proceedings, or deportation proceedings, a claim to 
protection under the Convention Against Torture will be raised and 
considered, along with any other applications, during removal 
proceedings before an immigration judge. Both the alien and the INS 
will have the ability to appeal decisions of the immigration judge to 
the Board of Immigration Appeals (the Board). This will allow the alien 
to seek review of this important decision, and will also allow the INS 
to use the review mechanism to ensure that decisions about the 
applicability of Article 3 are made consistently and according to the 
high standards of proof required by Article 3 itself. At the same time, 
the availability of review will not expand the process already 
available to aliens in proceedings under section 240, who under current 
law already have the opportunity to seek Board review of decisions of 
the immigration judge.
    Nor does this rule expand the availability of judicial review for 
aliens who make claims to protection under the Convention Against 
Torture. The statute requiring regulatory implementation of obligations 
under Article 3 explicitly provides that it does not authorize judicial 
review of these regulations. Section 2242(d) of the Foreign Affairs 
Reform and Restructuring Act of 1998. The rule restates at 
Sec. 208.18(e) the statutory mandate that the only available judicial 
review for Convention Against Torture claims is when such claims are 
heard as part of the review of a final order of removal pursuant to 
section 242 of the Act. Such review remains subject to the requirements 
and limitations of section 242. Where a court has jurisdiction to 
consider a Convention Against Torture claim, it may not, except as 
authorized by section 242, consider other claims regarding the alien's 
removal.

Structure of Rule

    Generally, the rule creates two separate provisions for protection 
under Article 3 for aliens who would be tortured in the country of 
removal. The first provision establishes a new form of withholding of 
removal under Sec. 208.16(c). This type of protection is only available 
to aliens who are not barred from eligibility for withholding of 
removal under section 241(b)(3)(B) of the Act. The second provision, 
under Sec. 208.17(a), concerns aliens who would be tortured in the 
country of removal but who are subject to the bars contained in section 
241(b)(3)(B) of the Act. These aliens may only be granted deferral of 
removal, a less permanent form of protection than withholding of 
removal and one that is more easily and quickly terminated if it 
becomes possible to remove the alien consistent with Article 3. 
Deferral of removal will be granted based on the withholding of removal 
application to an alien who is likely to be tortured in the country of 
removal but who is barred from withholding of removal. Section 
208.17(d) sets out a special, streamlined procedure through which the 
INS may seek to terminate deferral of removal when appropriate.

Withholding of Removal Under the Convention Against Torture

    Revised Sec. 208.16(c) creates a new form of withholding of 
removal, which will be granted to an eligible alien in removal 
proceedings who establishes that he or she would be tortured in the 
proposed country of removal. This section references new 
Sec. 208.18(a), which contains the definition of torture, and provides 
that this definition will be applied in all determinations about 
eligibility for this new form of withholding, or for deferral of 
removal.
    An alien granted withholding under new Sec. 208.16(c) would be 
treated similarly to an alien granted withholding of removal under 
Sec. 208.16(b), the regulatory provision implementing section 241(b)(3) 
of the Act. The rule provides at Sec. 208.16(c)(2) that, in order to be 
eligible for withholding of removal under Article 3, an alien must 
establish that it is more likely than not that he or she would be 
tortured in the country in question. Imposition of this burden of proof 
on the alien gives effect to one of the Senate understandings upon 
which ratification was conditioned, which provides that ``the United 
States understands that the phrase, `where there are substantial 
grounds for believing that he would be in danger of being subjected to 
torture,' as used in Article 3 of the Convention, to mean `if it is 
more likely than not that he would be tortured.' '' The ratification 
history makes clear that this understanding was intended to ensure that 
the standard of proof for Article 3 would be the same standard as that 
for withholding of removal under section 241(b)(3) of the Act, then 
section 243(h) of the Act. See, e.g., Convention Against Torture, 
submitted to the Senate, May 20, 1988, S. Treaty Doc. No. 100-20, at 6 
(1988) (hereinafter S. Treaty Doc. No. 100-20).
    Section 208.16(c)(3) also directs that all evidence relevant to the 
possibility of future torture should be considered when making the 
determination as to whether the alien is more likely than not to be 
tortured. It specifically provides that evidence of past torture 
inflicted on the applicant should be considered, because evidence of 
past torture may be probative as to whether future torture is likely.
    Section 208.16(c)(3) also requires that, in determining whether the 
applicant has met his or her burden of proof, the decision-maker may 
consider any evidence that the alien may be able to relocate to an area 
of the country of removal where he or she is not likely to be tortured. 
Consideration of this factor is consistent with long-established 
precedent in the context of the adjudication of requests for asylum and 
withholding of removal under section 241(b)(3) of the Act, and is 
relevant to the likelihood that an alien would be tortured if returned 
to a specific country. This section also provides that, where 
applicable, the adjudicator will consider evidence of gross, flagrant, 
or mass violations of human rights committed within the country in 
question. This requirement is drawn directly from clause 2 of Article 
3. The words ``where applicable'' indicate that, in each case, the 
adjudicator will determine whether and to what extent evidence of human 
rights violations in a given country is in fact a relevant factor in 
the case at hand. Evidence of the gross and flagrant denial of freedom 
of the press, without more, for example, may not tend to show that an 
alien would be tortured if returned to that country. See, e.g., S. 
Treaty Doc. No. 100-20, at 20. The rule further directs that any other 
relevant information about country conditions in the country of removal 
be considered.
    Applicants for withholding under Sec. 208.16(c) will be subject to 
the mandatory bars to withholding contained in section 241(b)(3)(B) of 
the Act. Section 241(b)(3)(B) of the Act bars from withholding of 
removal aliens: who have assisted in Nazi persecution or engaged in 
genocide; who have ordered, incited, assisted or otherwise participated 
in the persecution of others; and who, having been convicted of a 
particularly serious crime, pose a danger to the community of the 
United States. The section 241(b)(3)(B) bar also applies when there are 
serious reasons to believe that the alien has committed a serious non-
political crime outside the

[[Page 8481]]

United States before arriving in the United States or there are 
reasonable grounds to believe that the alien is a danger to the 
security of the United States. The legislation implementing Article 3 
provides that ``[t]o the maximum extent consistent with the obligations 
of the United States under the Convention, subject to any reservations, 
understandings, declarations, and provisos contained in the United 
States Senate resolution of ratification of the Convention, the 
regulations described in subsection (b) [mandating promulgation of 
regulations to implement Article 3] shall exclude from the protection 
of such regulations aliens described in section 241(b)(3)(B) of the 
Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)).'' Section 
2242(c) of the Foreign Affairs Reform and Restructuring Act of 1998. 
Thus, consistent with the statutory directive, the advantages of a 
grant of withholding of removal will not be available to such aliens. 
Rather, their protection from return to a country where they would be 
tortured, as required by the Convention, will be effected through a 
less extensive form of protection, i.e., deferral of removal, 
established in Sec. 208.17(a).

Deferral of Removal Under the Convention Against Torture

    Although aliens who are barred from withholding of removal under 
Sec. 241(b)(3)(B) of the Act are not eligible for withholding under 
208.16(c), the Article 3 implementing statute directs that any 
exclusion of these aliens from the protection of these regulations must 
be consistent with United States obligations under the Convention, 
subject to United States reservations, understandings, declarations, 
and provisos conditioning ratification. Section 2242(c) of the Foreign 
Affairs Reform and Restructuring Act of 1998. Article 3 prohibits 
returning any person to a country where he or she would be tortured, 
and contains no exceptions to this mandate. Nor do any of the United 
States reservations, understandings, declarations, or provisos 
contained in the Senate's resolution of ratification provide that the 
United States may exclude any person from Article 3's prohibition on 
return because of criminal or other activity or for any other reason. 
Indeed, the ratification history of the Convention Against Torture 
clearly indicates that the Executive Branch presented Article 3 to the 
Senate with the understanding that it ``does not permit any discretion 
or provide for any exceptions * * *.'' Convention Against Torture: 
Hearing Before the Senate Comm. on Foreign Relations, 101st Cong., 18 
(1990) (statement of Mark Richard, Deputy Assistant Attorney General 
for the Criminal Division, DOJ).
    Wherever possible, subsequent acts of Congress must be construed as 
consistent with treaty obligations. See e.g., Cook v. United States, 
288 U.S. 102, 120 (1933) (``[a] treaty will not be deemed to have been 
abrogated or modified by a later statute, unless such purpose on the 
part of Congress has been clearly expressed.''). Here, Congress has not 
indicated an intent to modify the obligations imposed by Article 3. In 
fact, Congress has clearly expressed its intent that any exclusion of 
aliens described in section 241(b)(3)(B) of the Act from the protection 
of these regulations must be consistent with Article 3. The obligation 
not to return such an alien to a country where he or she would be 
tortured remains in effect. Thus, while this rule does not extend the 
advantages associated with a grant of withholding of removal to aliens 
barred under section 241(b)(3)(B) of the Act, it does ensure that they 
are not returned to a country where they would be tortured.
    To this end, the rule creates a special provision under 
Sec. 208.17(a) for deferral of removal when an alien described in 
section 241(b)(3)(B) of the Act has been ordered removed to a country 
where it has been determined that he or she would be tortured. The 
process is as follows: Before determining whether the bars described in 
section 241(b)(3)(B) of the Act apply to withholding removal of an 
alien under the Convention Against Torture, the immigration judge is 
required to find whether the alien is likely to be tortured in the 
country of removal. Only after this finding is made does the 
immigration judge decide, as required by Sec. 208.16(d), whether the 
statutory bars to withholding of removal apply. If the bars do not 
apply, the immigration judge will grant withholding of removal to an 
alien who has been determined to be likely to be tortured in the 
country of removal. If the immigration judge finds that the bars apply, 
Sec. 208.17(a) requires the immigration judge to defer removal of an 
alien to a country where the alien is likely to be tortured. The alien 
need not apply separately for deferral because this form of protection 
will be accorded automatically, based on the withholding application, 
to an alien who is barred from withholding but is likely to be tortured 
in the country of removal. While the order of deferral is in effect, 
the alien will not be returned to the country in question.
    Section 208.17(a) is subject to the same standard of proof and 
definitional provisions as Sec. 208.16(c). This will ensure that 
compliance with Article 3 is complete and consistent in the cases of 
aliens who are barred from withholding as well as in the cases of 
aliens who are not barred from withholding. However, an order of 
deferral provides a much more limited form of protection than does a 
grant of withholding of removal. An order of deferral would not confer 
upon the alien any lawful or permanent immigration status in the United 
States and would be subject to streamlined and expeditious review and 
termination if it is determined that it is no longer likely that the 
alien would be tortured in the country to which he or she has been 
ordered removed. Further, like withholding, deferral of removal is 
effective only with respect to the particular country in question and 
does not alter the government's ability to remove the alien to another 
country where he or she would not be tortured. The rule requires the 
immigration judge to inform the alien of the limited nature of the 
deferral order at the time such order is entered.
    In addition, an order deferring removal to a particular country 
will not alter INS authority to detain an alien who is otherwise 
subject to detention. Section 241(a)(6) of the Act provides a variety 
of grounds for INS in its discretion to detain beyond the removal 
period an alien under a final order who cannot be removed. These 
include, most importantly, the discretion to detain an alien granted 
deferral of removal under Article 3 who is removable based on security 
grounds, based on certain criminal offenses, or who has been determined 
to pose a risk to the community. This is consistent with the Article 3 
implementing statute, which provides that ``[n]othing in this section 
shall be construed as limiting the authority of the Attorney General to 
detain any person under any provision of law, including, but not 
limited to, any provision of the Immigration and Nationality Act.'' 
Section 2242(e) of the Foreign Affairs Reform and Restructuring Act of 
1998. Section 208.17(c) of the interim rule provides that decisions 
about the detention of detainable aliens who have been granted deferral 
of removal will be made according to standard procedures under 8 CFR 
part 241.

Termination of Deferral of Removal

    The most important distinction between withholding of removal and 
deferral of removal is the mode of termination. Section 208.17(d) will 
provide for a streamlined termination process for deferral of removal 
when it is no longer likely that an alien would be tortured in the 
country of removal.

[[Page 8482]]

Under existing regulations, withholding can only be terminated when the 
government moves to reopen the case, meets the standards for reopening, 
and meets its burden of proof to establish by a preponderance of the 
evidence that the alien is not eligible for withholding. The 
termination process for deferral of removal is designed to be much more 
accessible, so that deferral can be terminated quickly and efficiently 
when appropriate.
    At any time while the order of deferral is in effect, the INS 
District Counsel for the district with jurisdiction over an alien 
granted deferral of removal may move the immigration court to schedule 
a hearing to determine whether the deferral order can be terminated. 
The INS motion will not be subject to the normal motion to reopen 
requirement that the moving party seek to offer evidence that was 
previously unavailable (i.e., could not have been discovered and 
presented at the previous hearing) and that establishes a prima facie 
case for termination. Rather, the Service's motion will be granted and 
a termination hearing will be scheduled on an expedited basis if the 
Service meets a lower threshold, which requires only that the evidence 
was not considered at the previous hearing and is relevant to the 
possibility that the alien would be tortured in the country of removal. 
This will allow the Service to monitor cases in which an order of 
deferral is in effect, and to bring such cases for termination hearings 
when it appears that the alien may no longer face likely torture in the 
country in question.
    The Immigration Court will provide the alien with notice of the 
time, place, and date of the termination hearing, and will have the 
opportunity to submit evidence to supplement his or her initial 
application for withholding, which was the basis for the deferral 
order. As is the case with initial asylum and withholding applications, 
the original application, along with any supplemental information 
submitted by the alien, will be forwarded to the Department of State, 
which may comment on the case at its option. At the termination 
hearing, it will be the alien's burden to establish that it is more 
likely than not that he or she would be tortured in the country of 
removal. The immigration judge will make a de novo determination about 
the alien's likelihood of torture in the country in question. If the 
immigration judge determines that the alien is more likely than not to 
be tortured in the country to which removal has been deferred, the 
order of deferral shall remain in place. If the alien fails to meet the 
burden of proof, the deferral order will be terminated. If the alien 
establishes that he or she still requires protection under the 
Convention Against Torture, the deferral order will remain in effect. 
Appeal of the immigration judge's decision shall lie to the Board.
    Deferral of removal may also be terminated at the alien's written 
request under Sec. 208.17(e). For termination on this basis, the rule 
requires that the immigration judge determine whether the alien's 
request is knowing and voluntary. If necessary, the immigration judge 
may conduct a hearing to make this determination. If it is determined 
that the alien's request for termination is not knowing and voluntary, 
deferral will not be terminated on this basis.

Implementation of the Convention Against Torture

    Section 208.18 sets out a number of provisions governing the 
implementation of the Convention Against Torture provisions. This 
section contains the definition of torture that will apply in both the 
withholding and deferral contexts, rules about the applicability of the 
new provisions, and a section clarifying that this rule does not expand 
the availability of judicial review to aliens who assert claims to 
protection under the Convention Against Torture.

Definition of Torture

    Section 208.18(a) provides the definition of torture and of terms 
within that definition. Initially, consistent with the statute, it 
provides that the regulatory definition of torture incorporates the 
definition in Article 1 of the Convention, as interpreted and modified 
by United States reservations, understandings, declarations and 
provisos. The remainder of the definition section is drawn directly 
from the language of the Convention, the language of the reservations, 
understandings and declarations contained in the Senate resolution 
ratifying the Convention, or from ratification history.
    Section 208.18(a)(1) contains the first sentence of Article 1, 
providing the basic contours of the definition of torture. It does not 
attempt to list the types of acts that would constitute torture, but 
rather expresses basic elements that must be present in order for an 
act to be torture: It must be an act causing severe pain or suffering, 
whether physical or mental, intentionally inflicted on a person. 
Article 16, which refers to ``other acts of cruel, inhuman or degrading 
treatment or punishment, which do not amount to torture,'' confirms 
that, as provided in Sec. 208.18(a)(2), torture is an extreme form of 
cruel and inhuman treatment. See, e.g., S. Treaty Doc. No. 100-20 at 
23.
    Section 208.18(a)(3) provides that torture ``does not include pain 
or suffering arising only from, inherent in or incidental to lawful 
sanctions.'' This is drawn from the second sentence of Article 1. The 
Senate adopted an understanding providing that ``with reference to 
article 1 of the Convention, the United States understands that 
`sanctions' includes judicially-imposed sanctions and other enforcement 
actions authorized by United States law or by judicial interpretation 
of such law. Nonetheless, the United States understands that a State 
Party could not through its domestic sanctions defeat the object and 
purpose of the Convention to prohibit torture.'' 136 Cong. Rec. 36198 
(1990). Therefore Sec. 208.18(a)(3) also provides that ``[l]awful 
sanctions include judicially imposed sanctions and other enforcement 
actions authorized by law, including the death penalty, but do not 
include sanctions that defeat the object and purpose of the Convention 
Against Torture to prohibit torture.'' This paragraph does not require 
that, in order to come within the exception, an action must be one that 
would be authorized by United States law. It must, however, be 
legitimate, in the sense that a State cannot defeat the purpose of the 
Convention to prohibit torture.
    Senate understandings also provide that ``the United States 
understands that international law does not prohibit the death penalty, 
and does not consider this Convention to restrict or prohibit the 
United States from applying the death penalty consistent with the 
Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the 
United States, including any constitutional period of confinement prior 
to the imposition of the death penalty.'' This understanding is 
embodied in Sec. 208.18(a)(3)'s inclusion of the death penalty in the 
description of lawful sanctions that do not constitute torture. The 
purpose of the Senate's understanding on the death penalty is to 
clarify that the Convention does not prohibit the United States from 
applying the death penalty consistent with United States constitutional 
standards. This concept will likely have limited application in the 
context of Article 3 implementation. It means simply that the 
constitutionally sufficient imposition of the death penalty in the 
United States is not torture. The understanding does not mean, however, 
that any imposition of the death penalty by a foreign state that fails 
to satisfy United States

[[Page 8483]]

constitutional requirements constitutes torture. Any analysis of 
whether the death penalty is torture in a specific case would be 
subject to all requirements of the Convention's definition, the 
Senate's reservations, understandings, and declarations, and the 
regulatory definitions. Thus, even if imposition of the death penalty 
would be inconsistent with United States constitutional standards, it 
would not be torture if it were imposed in a legitimate manner to 
punish violations of law. Similarly, it would not be torture if it 
failed to meet any other element of the definition of torture.
    The definition of torture can, in limited circumstances, include 
severe mental pain and suffering. Section 208.18(a)(4) provides a 
detailed and restrictive definition of the type of severe mental harm 
that can constitute torture. This language is drawn directly from the 
Senate's understandings. See 136 Cong. Rec. 36198.
    Section 208.18(a)(5) requires that, in order to qualify as torture, 
an act must be specifically intended to inflict severe pain or 
suffering, a requirement clearly imposed by United States 
understandings. Id. Thus, an act that results in unanticipated or 
unintended severity of pain and suffering is not torture. See, e.g., S. 
Treaty Doc. No. 100-20, at 19.
    Section 208.18(a)(6) provides that, for an act to constitute 
torture, the victim of the act must be in the custody or physical 
control of the perpetrator. Thus, harm, even severe pain and suffering, 
inflicted on a person who is not within the perpetrator's custody or 
physical control, would not qualify as torture. Again, the language of 
this regulatory provision is taken directly from the Senate 
understandings. See 136 Cong. Rec. 36198.
    Article 1 of the Convention Against Torture requires that torture 
must be inflicted ``by or at the instigation of or with the consent or 
acquiescence of a public official or other person acting in an official 
capacity.'' Senate understandings provide that ``the term 
`acquiescence' requires that the public official, prior to the activity 
constituting torture, have awareness of such activity and thereafter 
breach his legal responsibility to intervene to prevent such 
activity.'' 136 Cong. Rec. 36198. Section 208.18(a)(7) mirrors this 
requirement. Thus the definition of torture includes only acts that 
occur in the context of governmental authority. See, e.g., S. Treaty 
Doc. No. 100-20, at 19.
    Section 208.18(a)(8) provides that noncompliance with applicable 
legal procedural standards does not per se constitute torture. Again, 
this provision mirrors Senate understandings. 136 Cong. Rec. 36198.

Applicability of New Provisions

    Section 208.18(b)(1) provides that aliens who are in exclusion, 
deportation, or removal proceedings as of the effective date of this 
rule may seek withholding under the Convention Against Torture, and if 
applicable be considered for deferral under the Convention, through the 
procedures established by this rule. Section 208.18(b)(2) also 
establishes special procedures to provide a reasonable opportunity to 
request consideration for protection under Article 3 for aliens who 
were either ordered removed prior to the effective date of this rule, 
or whose removal orders become final prior to the effective date of the 
rule. Such aliens will be given a 90-day window of time in which to 
file a motion to reopen before the immigration court or before the 
Board of Immigration Appeals, to apply for protection under this rule. 
Any motion filed by such an alien within 90 days of the effective date 
of this rule, March 22, 1999, will not be subject to the normal 
requirement that the motion must seek to present new evidence that was 
unavailable and could not have been presented at the previous hearing. 
Nor will such a motion be subject to the normal time and numerical 
limitations on motions to reopen under Secs. 3.2 and 3.23. Such a 
motion will, however, be subject to the other requirements set out in 
the regulations for a motion to reopen. Therefore it will not be 
granted unless the evidence sought to be offered establishes a prima 
facie case that the alien's removal would violate Article 3 of the 
Convention Against Torture. Similarly, like other motions to reopen, 
such a motion will not automatically stay the alien's removal. Rather, 
the alien must request a stay of removal at the time of filing the 
motion to reopen.

Aliens Who Requested Protection Under the Convention Through the 
INS Pre-regulatory Administrative Process To Ensure Compliance With 
Article 3

    As explained previously, the INS has, prior to the effective date 
of this rule, conducted a pre-regulatory administrative process to 
comply with Article 3 of the Convention Against Torture until 
implementing legislation was enacted and obligations under that Article 
could be implemented by this rule. Section 208.18(b)(3) of this rule 
provides that, after the effective date of this rule, the INS pre-
regulatory administrative process for ensuring compliance with Article 
3 will end. After the effective date of this rule, except as otherwise 
provided, the INS will no longer stay an alien's removal based only on 
a request for protection under Article 3, nor will it consider the 
applicability of Article 3 to an individual case under its pre-
regulatory administrative process.
    Section 208.18(b)(4) provides that the new procedures established 
by this rule to provide for the consideration of claims to protection 
under the Convention Against Torture do not apply to cases in which the 
Service, prior to the effective date of this rule, has made a final 
administrative determination about the applicability of Article 3. This 
section provides that, if the Service has determined under its pre-
regulatory administrative process that an alien cannot be removed to a 
particular country consistent with Article 3, the alien be considered 
to have been granted withholding of removal under Sec. 208.16(c), 
unless the alien is subject to mandatory denial of withholding under 
Sec. 208.16(d) (2) or (3). If such an alien is barred from withholding 
of removal, he or she will be considered to have been granted deferral 
of removal under Sec. 208.17(a). Similarly, if an alien was determined 
under the pre-regulatory administrative process not to require 
protection under Article 3, that alien will be considered to have been 
finally denied withholding of removal under Sec. 208.16(c) and deferral 
of removal under Sec. 208.17(a). This paragraph applies only to cases 
in which the Service actually reached a final determination about the 
applicability of Article 3 to an individual case.
    A different regime will apply to aliens who requested protection 
under the pre-regulatory administrative process but did not receive a 
final determination from the Service. The Service will provide notice 
about the end of the pre-regulatory administrative process to such 
aliens. This notice will inform the alien of the new regulatory process 
through which Article 3 claims will be processed. The notice will also 
explain that an alien who was ordered removed or whose removal order 
became final prior to the effective date of this rule may obtain 
consideration of a claim under Article 3 only through the procedures 
set out in this rule. An alien under a final removal order issued by 
EOIR may obtain consideration of the Article 3 claim by filing a motion 
to reopen with the immigration court or the Board of Immigration 
Appeals. In order to provide a reasonable opportunity to file such a 
motion, an alien who has a request for Article 3 protection pending 
with the Service on

[[Page 8484]]

the date this rule becomes effective will be granted a stay of removal 
effective until 30 days after the notice is served on the alien. Any 
motion filed by such an alien will not be subject to the normal 
requirements for motions to reopen. The immigration judge or the Board 
shall grant such a motion if it is accompanied by a copy of the notice 
provided by the Service or by other convincing evidence that the alien 
requested protection under Article 3 from the Service through the pre-
regulatory administrative process and did not receive a final 
administrative determination prior to the effective date of this rule. 
The filing of such a motion shall extend the stay of removal pending 
the adjudication of the motion. This special provision ensures that 
those who requested protection under the INS pre-regulatory 
administrative process and did not get a ruling will have a full and 
fair opportunity to pursue their claims for protection under the new 
regulatory process.
    For an alien under a removal order issued by the Service under 
section 238(b) of the Act or an alien under an exclusion, deportation, 
or removal order that has been reinstated by the Service, the Service 
will consider any claim to protection that is pending on the effective 
date of this rule through the process set out in section 208.31. For an 
alien ordered removed by the Service under section 235(c) of the Act, 
the Service will decide under section 235.8(b)(4) any Article 3 claim 
that is pending on the effective date of this rule. Such a claim will 
not be subject to the procedures set out for consideration of Article 3 
claims by an immigration judge, the Board of Immigration Appeals, or an 
asylum officer.

Cases in Which Diplomatic Assurances Are Considered

    Section 208.18(c) sets out special procedures for cases in which 
the Secretary of State forwards to the Attorney General assurances that 
the Secretary has obtained from the government of a specific country 
that an alien would not be tortured if returned there. In some cases, 
it may be possible for the United States to actually reduce the 
likelihood that an alien would be tortured in a particular country. The 
nature and reliability of such assurances, and any arrangements through 
which such assurances might be verified, would require careful 
evaluation before any decision could be reached about whether such 
assurances would allow an alien's removal to that country consistent 
with Article 3. This paragraph sets out special procedures under which 
the Attorney General, in consultation with the Secretary of State, will 
assume responsibility for assessing the adequacy of any such assurances 
in appropriate cases. Cases will be handled under this provision only 
if such assurances are actually forwarded to the Attorney General by 
the Secretary of State for consideration under this special process. It 
is anticipated that these cases will be rare.
    In cases in which the Secretary has forwarded assurances under this 
provision, the procedures for administrative consideration of claims 
under the Convention Against Torture set out elsewhere in this rule 
will not apply. Further, the rule provides that the Attorney General's 
authority to make determinations about the applicability of Article 3 
in such a case may be exercised by the Deputy Attorney General or by 
the Commissioner, but may not be further delegated. Thus the rule 
ensures that cases involving the adequacy of diplomatic assurances 
forwarded to the Attorney General by the Secretary of State will 
receive consideration at senior levels within the Department of 
Justice, which is appropriate to the delicate nature of a diplomatic 
undertaking to ensure that an alien is not tortured in another country. 
Under Sec. 208.17(f), these special procedures may also be invoked in 
appropriate cases for considering whether deferral of removal should be 
terminated.

Cases Involving Aliens Ordered Removed Under Section 235(c) of the 
Act

    Section 208.18(d) provides, as discussed previously in the 
supplementary information, that an alien ordered removed pursuant to 
section 235(c) of the Act will not be removed under circumstances that 
would violate section 241(b)(3) of the Act or Article 3 of the 
Convention Against Torture. Any claim by an alien for protection 
against removal to a country where the alien claims he or she would be 
tortured will be considered by the Service under the standards 
applicable to protection under the Convention Against Torture, in light 
of the special circumstances of each case.
    Because these determinations will be made by the Service, the 
procedural provisions in Part 208 for consideration or decision of an 
alien's claims by an immigration judge, the Board, or an asylum officer 
do not apply in such cases. Thus, although this rule amends 8 CFR 
253.1(f) to provide that an alien removable under section 235(c) of the 
Act may apply for protection under the Convention Against Torture under 
8 CFR Part 208, such an alien's claim would be considered by the 
Service as provided in Sec. 208.18(d), and not by an immigration judge 
or asylum officer.
    Similarly, although Sec. 208.2(b)(1)(C)(v) provides that an 
immigration judge shall have exclusive jurisdiction over any asylum 
application filed on or after April 1, 1997, by an alien who has been 
ordered removed under section 235(c) of the Act, that provision by its 
express terms is only applicable ``[a]fter Form I-863, Notice of 
Referral to Immigration Judge, has been filed with the Immigration 
Court.'' When the alien is found to be removable as provided in section 
235(c)(2)(B) of the Act, the Service issues a removal order without 
referring the case to an immigration judge. Thus this provision 
relating to the authority of the immigration judge will apply to an 
alien who is subject to removal under section 235(c) of the Act only if 
the Service makes a determination to refer the case to an immigration 
judge for consideration as provided in sections 235.8(b)(2)(ii) and 
(d).

Expedited Removal and the Credible Fear Process

    The credible fear screening provisions at Sec. 208.30 are amended 
to ensure that arriving aliens who are subject to the statutory 
provisions for expedited removal at ports of entry will, when 
necessary, be considered for protection under Article 3 as well as for 
asylum under section 208 of the Act and withholding under section 
241(b)(3)(B) of the Act. Under current procedures, an alien subject to 
expedited removal who expresses a fear of persecution in his or her 
country of origin is interviewed by an asylum officer to determine 
whether the alien has a credible fear of persecution. Under the amended 
procedures, an alien who expresses such a fear will also be examined to 
determine whether he or she has a credible fear of torture. 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. If the alien has a credible fear of torture, he or she 
will be referred to an immigration judge for removal proceedings under 
section 240 of the Act, just as in the current credible fear of 
persecution process. In these proceedings, the alien will be able to 
assert a claim to withholding of removal under the Convention Against 
Torture or under section 241(b)(3) of the Act, or to deferral of 
removal in the case of an alien barred from withholding, or to asylum 
under section 208 of the Act. Similarly, consistent with current

[[Page 8485]]

procedures in the expedited removal context, upon the alien's request, 
an asylum officer's negative credible fear of torture determination 
will be subject to expeditious review by an immigration judge, with no 
appeal of this screening review. Thus, the interim rule provides for 
fair resolution of claims to protection under the Convention Against 
Torture in the expedited removal context, without disrupting the 
streamlined process established by Congress to circumvent meritless 
claims.

Reasonable Fear Screening Process for Aliens in Administrative 
Removal Proceedings for Aggravated Felons and Aliens Subject to 
Reinstated Orders

    Section 208.31 creates a new screening process to evaluate torture 
claims for aliens subject to streamlined administrative removal 
processes for aggravated felons under section 238(b) of the Act and for 
aliens subject to reinstatement of a previous removal order under 
section 241(a)(5) of the Act. This new screening process is modeled on 
the credible fear screening process, but requires the alien to meet a 
higher screening standard. Similar to the credible fear screening 
process, Sec. 208.31 is intended to provide for the fair resolution of 
claims both to withholding under section 241(b)(3) of the Act, and to 
protection under the Convention Against Torture without unduly 
disrupting the operation of these special administrative removal 
processes.
    Unlike the broad class of arriving aliens who are subject to 
expedited removal, these two classes of aliens are ineligible for 
asylum. They may, however, be entitled to withholding of removal under 
either section 241(b)(3) of the Act, or under the Convention Against 
Torture, or to deferral of removal under Sec. 208.17(a). Because the 
standard for showing entitlement to these forms of protection (a 
probability of persecution or torture) is significantly higher than the 
standard for asylum (a well-founded fear of persecution), the screening 
standard adopted for initial consideration of withholding and deferral 
requests in these contexts is also higher. In fact, the ``reasonable 
fear'' screening standard is the same standard of proof used in asylum 
eligibility determinations. That is, the alien must show that there is 
a ``reasonable possibility'' that he or she would be persecuted or 
tortured in the country of removal.
    Under the new screening process, aliens in these streamlined 
administrative removal proceedings who express a fear of persecution or 
torture will be interviewed by an asylum officer to determine whether 
they have a reasonable fear of persecution or torture. If they are 
determined to have such a fear, they will be referred to an immigration 
judge for a determination only as to their eligibility for withholding 
of removal under either section 241(b)(3) of the Act or under the 
Convention Against Torture, or for deferral of removal. Either the 
alien or the Service may appeal the immigration judge's decision about 
eligibility for withholding or deferral of removal to the Board of 
Immigration Appeals. The Board will have jurisdiction to review only 
the issue of eligibility for withholding or deferral of removal and may 
not review issues related to the administratively issued order of 
removal or to the reinstatement of the previous order of removal.
    If the asylum officer determines that the alien does not have a 
reasonable fear of persecution or torture, the alien will be afforded 
the opportunity for an expeditious review of the negative screening 
determination by an immigration judge. A new form I-898, Record of 
Negative Reasonable Fear Finding and Request for Review by the 
Immigration Judge, will be created on which the alien may request 
review of a negative asylum officer screening determination. If the 
immigration judge upholds the negative screening determination, the 
alien may be removed without further review. If the immigration judge 
reverses the asylum officer's screening determination, however, the 
immigration judge will proceed to a determination only as to 
eligibility for withholding of removal under section 241(b)(3) of the 
Act or under the Convention Against Torture, or if applicable, deferral 
of removal. Again, either the alien or the INS may appeal the 
immigration judge's decision about withholding or deferral to the Board 
of Immigration Appeals.
    This reasonable fear screening process provides a formal mechanism, 
previously unavailable, to make determinations under section 241(b)(3) 
of the Act for aliens who are subject to administrative removal as 
aggravated felons under section 238(b) of the Act, but who were 
sentenced to an aggregate term of imprisonment of less than five years, 
and thus are not conclusively barred from withholding under section 
241(b)(3)(B) of the Act. This same mechanism will provide for 
consideration of applications for withholding of removal under the 
Convention Against Torture, and for consideration for deferral of 
removal when necessary, in these cases. Thus the new screening process 
will unify any consideration of applications for withholding of removal 
under section 241(b)(3) of the Act and under the Convention Against 
Torture in these cases.
    Similarly, the new reasonable fear of persecution or torture 
screening process will ensure proper consideration of applications for 
withholding under section 241(b)(3) of the Act and under the Convention 
Against Torture, and of deferral of removal when appropriate, in cases 
subject to reinstatement of a previous removal order. Thus it replaces 
current regulatory provisions at Sec. 241.8(d) for the consideration of 
applications for withholding of removal under section 241(b)(3) of the 
Act.
Form I-589 as application form for withholding of removal under the 
Convention Against Torture
    The Form I-589, Application for Asylum and for Withholding of 
Removal, will serve as an application form for withholding of removal 
under the Convention Against Torture, as well as for withholding of 
removal under section 241(b)(3) of the Act. Supplemental instructions 
for the Form I-598 will be issued to explain how an alien may use this 
form to seek withholding of removal under the Convention. Under this 
rule, consideration for deferral of removal must be undertaken when an 
alien's application for withholding has been denied because of a bar to 
withholding. Therefore, the Form I-589 will automatically trigger 
deferral of removal where appropriate.
    Use of the Form I-589 will avoid confusion by allowing aliens who 
believe they are at risk of harm to apply for asylum, as well as these 
other risk-based forms of protection, at the same time, using the same 
form. It will also help to ensure that these claims are presented at 
one time, thereby allowing resolution of these issues in the normal 
course of proceedings.
    Additionally, use of the Form I-589 will obviate the need for two 
separate forms that, in many cases, will elicit similar information. In 
many cases in which the alien applies both for asylum and withholding 
of removal under the Act and for withholding under the Convention 
Against Torture, the underlying facts supporting these claims will be 
the same. Thus use of the I-589 will reduce the burden on the applicant 
while also simplifying the adjudication process for the Service and 
EOIR. In all cases, the same biographical background information will 
be necessary. Additionally, the Form I-589 already contains questions 
that would elicit the facts underlying an alien's fear of torture as 
well as his or her fear of persecution.

[[Page 8486]]

For example, the form specifically asks the applicant whether he or she 
fears torture upon return to a country, and also asks open-ended 
questions designed to elicit any information about past mistreatment or 
fear of mistreatment in the future. Thus the existing form can easily 
be used for the adjudication of claims to protection under the 
Convention Against Torture.

Good Cause Exception

    The interim rule is effective 30 days from the date of publication 
in the Federal Register, although the Department invites public comment 
for 60 days from the date of publication. For the following reasons, 
the Department finds that good cause exists under 5 U.S.C. 553(b)(B) 
and (d)(3) for implementing this rule as an interim rule without the 
prior notice and comment period ordinarily required under that 
provision. First, section 2242(b) of the Foreign Affairs Reform and 
Restructuring Act of 1998 requires that ``[n]ot later than 120 days 
after the date of the enactment of this Act, the heads of the 
appropriate agencies shall prescribe regulations to implement the 
obligations of the United States under Article 3 of the [Convention 
Against Torture].'' In order to comply with this statutory requirement, 
it was necessary to dispense with the usual period of public notice and 
comment; however, the Department will consider carefully all public 
comments submitted in the course of preparation of a final rule. 
Second, this rule provides a formal mechanism for requesting protection 
from torture, and must be implemented expeditiously in order to allow 
aliens who may require protection under the Convention Against Torture 
to seek such protection under a regulatory system. While the current 
informal procedure will remain in place during the next 30 days, it 
allows for consideration of such requests only at the end of the 
removal process, after all other avenues of appeal have been exhausted. 
The interim rule will permit most aliens to raise their claims during 
the course of regular removal proceedings, and thus many individuals 
currently in proceedings before the immigration court will have the 
opportunity to have their request for protection resolved more 
expeditiously than under the current informal procedure. Therefore, 
early implementation will be advantageous to those persons seeking 
protection under the Convention Against Torture, and it is contrary to 
the intent of the statute and the public interest to delay the 
implementation of this rule until after a notice and comment period.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because of the 
following reason: This rule involves the process for adjudication of 
certain requests for withholding of removal. This process affects 
individuals and not small entities.

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 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, 
Regulatory Planning and Review. Accordingly, this regulation has been 
submitted to the Office of Management and Budget for review.

Executive Order 12612

    The regulation adopted herein 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 
responsibility 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.

Executive Order 12988--Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The information collection requirement contained in this rule has 
been approved for use by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act. The OMB control number for this 
collection is contained in 8 CFR part 299.5, Display of control 
numbers.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

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 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 238

    Air Carriers, Aliens, Government contracts, Maritime carriers.

8 CFR Part 240

    Administrative practice and procedure, Immigration.

8 CFR Part 241

    Aliens, Immigration.

8 CFR Part 253

    Air carriers, Airmen, Aliens, Maritime carriers, Reporting and 
recordkeeping requirements, Seamen.

8 CFR Part 507

    Aliens, Terrorists.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:


[[Page 8487]]


    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 
CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.

    2. In Sec. 3.23, revise the paragraph heading and the first 
sentence in paragraph (b)(4)(i) to read as follows:


Sec. 3.23  Reopening or Reconsideration before the Immigration Court.

* * * * *
    (b) * * *
    (4) * * *
    (i) Asylum and withholding of removal. The time and numerical 
limitations set forth in paragraph (b)(1) of this section shall not 
apply if the basis of the motion is to apply for asylum under section 
208 of the Act or withholding of removal under section 241(b)(3) of the 
Act or withholding of removal under the Convention Against Torture, and 
is based on changed country conditions arising in the country of 
nationality or the country to which removal has been ordered, if such 
evidence is material and was not available and could not have been 
discovered or presented at the previous proceeding. * * *
    3. In Sec. 3.42, revise paragraphs (d) and (f) to read as follows:


Sec. 3.42  Review of credible fear determination.

* * * * *
    (d) Standard of review. The immigration judge shall make a de novo 
determination as to whether 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 
immigration judge, that the alien could establish eligibility for 
asylum under section 208 of the Act or withholding under section 
241(b)(3) of the Act or withholding under the Convention Against 
Torture.
* * * * *
    (f) Decision. If an immigration judge determines that an alien has 
a credible fear of persecution or torture, the immigration judge shall 
vacate the order entered pursuant to section 235(b)(1)(B)(iii)(I) of 
the Act. Subsequent to the order being vacated, the Service shall issue 
and file Form I-862, Notice to Appear, with the Immigration Court to 
commence removal proceedings. The alien shall have the opportunity to 
apply for asylum and withholding of removal in the course of removal 
proceedings pursuant to section 240 of the Act. If an immigration judge 
determines that an alien does not have a credible fear of persecution 
or torture, the immigration judge shall affirm the asylum officer's 
determination and remand the case to the Service for execution of the 
removal order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. No appeal shall lie from a review of an adverse credible fear 
determination made by an immigration judge.
* * * * *

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    4. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a); 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.

    5. In Sec. 103.12, revise paragraph (a)(5) to read as follows:


Sec. 103.12  Definition of the term ``lawfully present'' aliens for 
purposes of applying for Title II social security benefits under Public 
Law 104-193.

    (a) * * *
    (5) Applicants for asylum under section 208(a) of the Act and 
applicants for withholding of removal under section 241(b)(3) of the 
Act or under the Convention Against Torture who have been granted 
employment authorization, and such applicants under the age of 14 who 
have had an application pending for at least 180 days.
* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

    6. 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.

    7. Revise Sec. 208.1 to read as follows:


Sec. 208.1  General.

    (a) Applicability. Unless otherwise provided in this chapter, this 
subpart shall apply to all applications for asylum under section 208 of 
the Act or for withholding of deportation or withholding of removal 
under section 241(b)(3) of the Act, or under the Convention Against 
Torture, whether before an asylum officer or an immigration judge, 
regardless of the date of filing. For purposes of this chapter, 
withholding of removal shall also mean withholding of deportation under 
section 243(h) of the Act, as it appeared prior to April 1, 1997, 
except as provided in Sec. 208.16(d). Such applications are hereinafter 
referred to as ``asylum applications.'' The provisions of this part 
shall not affect the finality or validity of any decision made by a 
district director, an immigration judge, or the Board of Immigration 
Appeals in any such case prior to April 1, 1997. No asylum application 
that was filed with a district director, asylum officer, or immigration 
judge prior to April 1, 1997, may be reopened or otherwise reconsidered 
under the provisions of this part except by motion granted in the 
exercise of discretion by the Board of Immigration Appeals, an 
immigration judge, or an asylum officer for proper cause shown. Motions 
to reopen or reconsider must meet the requirements of sections 
240(c)(5) and (c)(6) of the Act, and 8 CFR parts 3 and 103, where 
applicable.
    (b) Training of asylum officers. The Director of International 
Affairs shall ensure that asylum officers receive special training in 
international human rights law, nonadversarial interview techniques, 
and other relevant national and international refugee laws and 
principles. The Director of International Affairs shall also, in 
cooperation with the Department of State and other appropriate sources, 
compile and disseminate to asylum officers information concerning the 
persecution of persons in other countries on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion, torture of persons in other countries, and other information 
relevant to asylum determinations, and shall maintain a documentation 
center with information on human rights conditions.
    8. In Sec. 208.2, revise paragraphs (a), (b)(1)(ii), and (b)(3), to 
read as follows:


Sec. 208.2  Jurisdiction.

    (a) Office of International Affairs. Except as provided in 
paragraph (b) of this section, the Office of International Affairs 
shall have initial jurisdiction over an asylum application filed by, or 
a credible fear determination pertaining to, an alien physically 
present in the United States or seeking admission at a port-of-entry. 
The Office of International Affairs shall also have initial 
jurisdiction to consider applications for withholding of removal under 
Sec. 208.31. An application that is complete within the meaning of 
Sec. 208.3(c)(3) shall either be adjudicated or referred by asylum 
officers under this part in accordance with Sec. 208.14. An application 
that is incomplete within the meaning of Sec. 208.3(c)(3) shall be 
returned to the applicant.
    (b) * * *
    (1) * * *
    (ii) An alien stowaway who has been found to have a credible fear 
of

[[Page 8488]]

persecution or torture pursuant to the procedures set forth in subpart 
B of this part;
* * * * *
    (3) Other aliens. Immigration judges shall have exclusive 
jurisdiction over asylum applications filed by an alien who has been 
served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant 
for Admission Detained for a Hearing before an Immigration Judge; or 
Form I-862, Notice to Appear, after a copy of the charging document has 
been filed with the Immigration Court. Immigration judges shall also 
have jurisdiction over any asylum applications filed prior to April 1, 
1997, by alien crewmembers who have remained in the United States 
longer than authorized, by applicants for admission under the Visa 
Waiver Pilot Program, and by aliens who have been admitted to the 
United States under the Visa Waiver Pilot Program. Immigration judges 
shall also have the authority to review reasonable fear determinations 
referred to the Executive Office for Immigration Review under 
Sec. 208.31.
    9. In Sec. 208.4, revise paragraph (a) introductory text and 
paragraph (b)(2) to read as follows:


Sec. 208.4  Filing the application.

* * * * *
    (a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits 
certain aliens from filing for asylum on or after April 1, 1997, unless 
the alien can demonstrate to the satisfaction of the Attorney General 
that one of the exceptions in section 208(a)(2)(D) of the Act applies. 
Such prohibition applies only to asylum applications under section 208 
of the Act and not to applications for withholding of removal under 
Sec. 208.16 of this part. If an applicant submits an asylum application 
and it appears that one or more of the prohibitions contained in 
section 208(a)(2) of the Act apply, an asylum officer or an immigration 
judge shall review the application to determine if the application 
should be rejected or denied. For the purpose of making determinations 
under section 208(a)(2) of the Act, the following rules shall apply:
* * * * *
    (b) * * *
    (2) With the asylum office. Asylum applications shall be filed 
directly with the asylum office having jurisdiction over the matter in 
the case of an alien who has received the express consent of the 
Director of Asylum to do so or in the case of an alien whose case has 
been referred to the asylum office for purposes of conducting a 
reasonable fear determination under Sec. 208.31 of this part.
* * * * *
    10. In Sec. 208.5, revise paragraph (b)(1) introductory text to 
read as follows:


Sec. 208.5  Special duties toward aliens in custody of the Service.

* * * * *
    (b) * * *
    (1) If an alien crewmember or alien stowaway on board a vessel or 
other conveyance alleges, claims, or otherwise makes known to an 
immigration inspector or other official making an examination on the 
conveyance that he or she is unable or unwilling to return to his or 
her country of nationality or last habitual residence (if not a 
national of any country) because of persecution or a fear of 
persecution in that country on account of race, religion, nationality, 
membership in a particular social group, or political opinion, or if 
the alien expresses a fear of torture upon return to that country, the 
alien shall be promptly removed from the conveyance. If the alien makes 
such fear known to an official while off such conveyance, the alien 
shall not be returned to the conveyance but shall be retained in or 
transferred to the custody of the Service.
* * * * *
    11. In Sec. 208.11, revise paragraph (b)(2) to read as follows:


Sec. 208.11  Comments from the Department of State.

* * * * *
    (b) * * *
    (2) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in his or her country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
 * * * * *
    12. In Sec. 208.12, revise paragraph (a) to read as follows:


Sec. 208.12  Reliance on information compiled by other sources.

    (a) In deciding an asylum application, or in deciding whether the 
alien has a credible fear of persecution or torture pursuant to 
Sec. 208.30 of this part, or a reasonable fear of persecution or 
torture pursuant to Sec. 208.31, the asylum officer may rely on 
material provided by the Department of State, the Office of 
International Affairs, other Service offices, or other credible 
sources, such as international organizations, private voluntary 
agencies, news organizations, or academic institutions.
* * * * *
    13. Section 208.13 revise paragraph (c)(1) to read as follows:


Sec. 208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (1) Applications filed on or after April 1, 1997. For applications 
filed on or after April 1, 1997, an applicant shall not qualify for 
asylum if section 208(a)(2) or 208(b)(2) of the Act applies to the 
applicant. If the applicant is found to be ineligible for asylum under 
either section 208(a)(2) or 208(b)(2) of the Act, the applicant shall 
be considered for eligibility for withholding of removal under section 
241(b)(3) of the Act. The applicant shall also be considered for 
eligibility for withholding of removal under the Convention Against 
Torture if the applicant requests such consideration or if the evidence 
presented by the alien indicates that the alien may be tortured in the 
country of removal.
    14. Section 208.16 is amended as follows:
    A. Revise the section heading;
    B. Revise paragraph (a);
    C. Revise paragraph (b) introductory test;
    D. Redesignate paragraphs (c) and (d), as (d) and (e) respectively;
    E. Add a new paragraph (c);
    F. Revise newly redesignated paragraphs (d) and (e); and
    G. Add a new paragraph (f) to read as follows:


Sec. 208.16  Withholding of removal under section 241(b)(3)(B) of the 
Act and withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom 
would be threatened must be withheld, except in the case of an alien 
who is otherwise eligible for asylum but is precluded from being 
granted such status due solely to section 207(a)(5) of the Act. In 
exclusion, deportation, or removal proceedings, an immigration judge 
may adjudicate both an asylum claim and a request for withholding of 
removal whether or not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant 
for withholding of removal under section 241(b)(3) of the Act to 
establish that his or her life or freedom would be threatened in the 
proposed country of removal on account of race, religion, nationality, 
membership in a particular social group, or political opinion. The 
testimony of the applicant, if credible, may be sufficient to sustain 
the burden

[[Page 8489]]

of proof without corroboration. The evidence shall be evaluated as 
follows:
* * * * *
    (c) Eligibility for withholding of removal under the Convention 
Against Torture.
    (1) For purposes of regulations under Title II of the Act, 
``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 208.18(a) of this part shall govern all decisions 
made under regulations under Title II of the Act about the 
applicability of Article 3 of the Convention Against Torture.
    (2) The burden of proof is on the applicant for withholding of 
removal under this paragraph to establish that it is more likely than 
not that he or she would be tortured if removed to the proposed country 
of removal. The testimony of the applicant, if credible, may be 
sufficient to sustain the burden of proof without corroboration.
    (3) In assessing whether it is more likely than not that an 
applicant would be tortured in the proposed country of removal, all 
evidence relevant to the possibility of future torture shall be 
considered, including, but not limited to:
    (i) Evidence of past torture inflicted upon the applicant;
    (ii) Evidence that the applicant could relocate to a part of the 
country of removal where he or she is not likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of human 
rights within the country of removal, where applicable; and
    (iv) Other relevant information regarding conditions in the country 
of removal.
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the immigration judge shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the immigration judge determines that the 
alien is more likely than not to be tortured in the country of removal, 
the alien is entitled to protection under the Convention Against 
Torture. Protection under the Convention Against Torture will be 
granted either in the form of withholding of removal or in the form of 
deferral of removal. An alien entitled to such protection shall be 
granted withholding of removal unless the alien is subject to mandatory 
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of 
this section. If an alien entitled to such protection is subject to 
mandatory denial of withholding of removal under paragraphs (d)(2) or 
(d)(3) of this section, the alien's removal shall be deferred under 
Sec. 208.17(a).
    (d) Approval or denial of application. (1) General. Subject to 
paragraphs (d)(2) and (d)(3) of this section, an application for 
withholding of deportation or removal to a country of proposed removal 
shall be granted if the applicant's eligibility for withholding is 
established pursuant to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act 
or, for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger 
to the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, 
the applicant shall have the burden of proving by a preponderance of 
the evidence that such grounds do not apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act 
shall be exercised only in the case of an applicant convicted of an 
aggravated felony (or felonies) where he or she was sentenced to an 
aggregate term of imprisonment of less than 5 years and the immigration 
judge determines on an individual basis that the crime (or crimes) of 
which the applicant was convicted does not constitute a particularly 
serious crime. Nevertheless, it shall be presumed that an alien 
convicted of an aggravated felony has been convicted of a particularly 
serious crime. Except in the cases specified in this paragraph, the 
grounds for denial of withholding of deportation in section 243(h)(2) 
of the Act as it appeared prior to April 1, 1997, shall be deemed to 
comply with the Protocol Relating to the Status of Refugees, Jan. 31, 
1967, T.I.A.S. No. 6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of 
discretion, and the applicant is subsequently granted withholding of 
deportation or removal under this section, thereby effectively 
precluding admission of the applicant's spouse or minor children 
following to join him or her, the denial of asylum shall be 
reconsidered. Factors to be considered will include the reasons for the 
denial and reasonable alternatives available to the applicant such as 
reunification with his or her spouse or minor children in a third 
country.
    (f) Removal to third country. Nothing in this section or 
Sec. 208.17 shall prevent the Service from removing an alien to a third 
country other than the country to which removal has been withheld or 
deferred.
    15. Section 208.17 is revised to read as follows:


Sec. 208.17  Deferral of removal under the Convention Against Torture.

    (a) Grant of deferral of removal. An alien who: has been ordered 
removed; has been found under Sec. 208.16(c)(3) to be entitled to 
protection under the Convention Against Torture; and is subject to the 
provisions for mandatory denial of withholding of removal under 
Sec. 208.16(d)(2) or (d)(3), shall be granted deferral of removal to 
the country where he or she is more likely than not to be tortured.
    (b) Notice to Alien. (1) After an immigration judge orders an alien 
described in paragraph (a) of this section removed, the immigration 
judge shall inform the alien that his or her removal to the country 
where he or she is more likely than not to be tortured shall be 
deferred until such time as the deferral is terminated under this 
section. The immigration judge shall inform the alien that deferral of 
removal:
    (i) Does not confer upon the alien any lawful or permanent 
immigration status in the United States;
    (ii) Will not necessarily result in the alien being released from 
the custody of the Service if the alien is subject to such custody;

[[Page 8490]]

    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination if the immigration judge 
determines that it is not likely that the alien would be tortured in 
the country to which removal has been deferred, or if the alien 
requests that deferral be terminated.
    (2) The immigration judge shall also inform the alien that removal 
has been deferred only to the country in which it has been determined 
that the alien is likely to be tortured, and that the alien may be 
removed at any time to another country where he or she is not likely to 
be tortured.
    (c) Detention of an alien granted deferral of removal under this 
section. Nothing in this section shall alter the authority of the 
Service to detain an alien whose removal has been deferred under this 
section and who is otherwise subject to detention. In the case of such 
an alien, decisions about the alien's release shall be made according 
to part 241 of this chapter.
    (d) Termination of deferral of removal.
    (1) At any time while deferral of removal is in effect, the INS 
District Counsel for the District with jurisdiction over an alien whose 
removal has been deferred under paragraph (a) of this section may file 
a motion with the Immigration Court having administrative control 
pursuant to Sec. 3.11 of this chapter to schedule a hearing to consider 
whether deferral of removal should be terminated. The Service motion 
shall be granted if it is accompanied by evidence that is relevant to 
the possibility that the alien would be tortured in the country to 
which removal has been deferred and that was not presented at the 
previous hearing. The Service motion shall not be subject to the 
requirements for reopening in Secs. 3.2 and 3.23 of this chapter.
    (2) The Immigration Court shall provide notice to the alien and the 
Service of the time, place, and date of the termination hearing. Such 
notice shall inform the alien that the alien may supplement the 
information in his or her initial application for withholding of 
removal under the Convention Against Torture and shall provide that the 
alien must submit any such supplemental information within 10 calendar 
days of service of such notice (or 13 calendar days if service of such 
notice was by mail). At the expiration of this 10 or 13 day period, the 
Immigration Court shall forward a copy of the original application, and 
any supplemental information the alien or the Service has submitted, to 
the Department of State, together with notice to the Department of 
State of the time, place and date of the termination hearing. At its 
option, the Department of State may provide comments on the case, 
according to the provisions of Sec. 208.11 of this part.
    (3) The immigration judge shall conduct a hearing and make a de 
novo determination, based on the record of proceeding and initial 
application in addition to any new evidence submitted by the Service or 
the alien, as to whether the alien is more likely than not to be 
tortured in the country to which removal has been deferred. This 
determination shall be made under the standards for eligibility set out 
in Sec. 208.16(c). The burden is on the alien to establish that it is 
more likely than not that he or she would be tortured in the country to 
which removal has been deferred.
    (4) If the immigration judge determines that the alien is more 
likely than not to be tortured in the country to which removal has been 
deferred, the order of deferral shall remain in place. If the 
immigration judge determines that the alien has not established that he 
or she is more likely than not to be tortured in the country to which 
removal has been deferred, the deferral of removal shall be terminated 
and the alien may be removed to that country. Appeal of the immigration 
judge's decision shall lie to the Board.
    (e) Termination at the request of the alien.
    (1) At any time while deferral of removal is in effect, the alien 
may make a written request to the Immigration Court having 
administrative control pursuant to Sec. 3.11 of this chapter to 
terminate the deferral order. If satisfied on the basis of the written 
submission that the alien's request is knowing and voluntary, the 
immigration judge shall terminate the order of deferral and the alien 
may be removed.
    (2) If necessary the immigration judge may calendar a hearing for 
the sole purpose of determining whether the alien's request is knowing 
and voluntary. If the immigration judge determines that the alien's 
request is knowing and voluntary, the order of deferral shall be 
terminated. If the immigration judge determines that the alien's 
request is not knowing and voluntary, the alien's request shall not 
serve as the basis for terminating the order of deferral.
    (f) Termination pursuant to Sec. 208.18(c). At any time while 
deferral of removal is in effect, the Attorney General may determine 
whether deferral should be terminated based on diplomatic assurances 
forwarded by the Secretary of State pursuant to the procedures in 
Sec. 208.18(c).


Secs. 208.18 through 208.22  [Redesignated as Secs. 208.19 through 
208.23]

    16. Sections 208.18 through 208.22 are redesignated as Secs. 208.19 
through 208.23 respectively.
    17. Section 208.18 is added to read as follows:


Sec. 208.18  Implementation of the Convention Against Torture.

    (a) Definitions. The definitions in this subsection incorporate the 
definition of torture contained in Article 1 of the Convention Against 
Torture, subject to the reservations, understandings, declarations, and 
provisos contained in the United States Senate resolution of 
ratification of the Convention.
    (1) Torture is defined as any act by which severe pain or 
suffering, whether physical or mental, is intentionally inflicted on a 
person for such purposes as obtaining from him or her or a third person 
information or a confession, punishing him or her for an act he or she 
or a third person has committed or is suspected of having committed, or 
intimidating or coercing him or her or a third person, or for any 
reason based on discrimination of any kind, when such pain or suffering 
is inflicted by or at the instigation of or with the consent or 
acquiescence of a public official or other person acting in an official 
capacity.
    (2) Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment 
or punishment that do not amount to torture.
    (3) Torture does not include pain or suffering arising only from, 
inherent in or incidental to lawful sanctions. Lawful sanctions include 
judicially imposed sanctions and other enforcement actions authorized 
by law, including the death penalty, but do not include sanctions that 
defeat the object and purpose of the Convention Against Torture to 
prohibit torture.
    (4) In order to constitute torture, mental pain or suffering must 
be prolonged mental harm caused by or resulting from:
    (i) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (ii) The administration or application, or threatened 
administration or application, of mind altering substances or other 
procedures calculated to disrupt profoundly the senses or the 
personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be subjected to 
death,

[[Page 8491]]

severe physical pain or suffering, or the administration or application 
of mind altering substances or other procedures calculated to disrupt 
profoundly the sense or personality.
    (5) In order to constitute torture, an act must be specifically 
intended to inflict severe physical or mental pain or suffering. An act 
that results in unanticipated or unintended severity of pain and 
suffering is not torture.
    (6) In order to constitute torture an act must be directed against 
a person in the offender's custody or physical control.
    (7) Acquiescence of a public official requires that the public 
official, prior to the activity constituting torture, have awareness of 
such activity and thereafter breach his or her legal responsibility to 
intervene to prevent such activity.
    (8) Noncompliance with applicable legal procedural standards does 
not per se constitute torture.
    (b) Applicability of Secs. 208.16(c) and 208.17(a).
    (1) Aliens in proceedings on or after March 22, 1999. An alien who 
is in exclusion, deportation, or removal proceedings on or after March 
22, 1999 may apply for withholding of removal under Sec. 208.16(c), 
and, if applicable, may be considered for deferral of removal under 
Sec. 208.17(a).
    (2) Aliens who were ordered removed, or whose removal orders became 
final, before March 22, 1999. An alien under a final order of 
deportation, exclusion, or removal that became final prior to March 22, 
1999 may move to reopen proceedings to seek protection under 
Sec. 208.16(c). Such motions shall be governed by Secs. 3.23 and 3.2 of 
this chapter, except that the time and numerical limitations on motions 
to reopen shall not apply and the alien shall not be required to 
demonstrate that the evidence sought to be offered was unavailable and 
could not have been discovered or presented at the former hearing. The 
motion to reopen shall not be granted unless:
    (i) The motion is filed within June 21, 1999; and
    (ii) The evidence sought to be offered establishes a prima facie 
case that the applicant's removal must be withheld or deferred under 
Secs. 208.16(c) or 208.17(a).
    (3) Aliens who, on March 22, 1999, have requests pending with the 
Service for protection under Article 3 of the Convention Against 
Torture.
    (i) Except as otherwise provided, after March 22, 1999, the Service 
will not:
    (A) Consider, under its pre-regulatory administrative policy to 
ensure compliance with the Convention Against Torture, whether Article 
3 of that Convention prohibits the removal of an alien to a particular 
country, or
    (B) Stay the removal of an alien based on a request filed with the 
Service for protection under Article 3 of that Convention.
    (ii) For each alien who, on or before March 22, 1999, filed a 
request with the Service for protection under Article 3 of the 
Convention Against Torture, and whose request has not been finally 
decided by the Service, the Service shall provide written notice that, 
after March 22, 1999, consideration for protection under Article 3 can 
be obtained only through the provisions of this rule.
    (A) The notice shall inform an alien who is under an order of 
removal issued by EOIR that, in order to seek consideration of a claim 
under Secs. 208.16(c) or 208.17(a), such an alien must file a motion to 
reopen with the immigration court or the Board of Immigration Appeals. 
This notice shall be accompanied by a stay of removal, effective until 
30 days after service of the notice on the alien. A motion to reopen 
filed under this paragraph for the limited purpose of asserting a claim 
under Secs. 208.16(c) or 208.17(a) shall not be subject to the 
requirements for reopening in Secs. 3.2 and 3.23 of this chapter. Such 
a motion shall be granted if it is accompanied by a copy of the notice 
described in paragraph (b)(3)(ii) or by other convincing evidence that 
the alien had a request pending with the Service for protection under 
Article 3 of the Convention Against Torture on March 22, 1999. The 
filing of such a motion shall extend the stay of removal during the 
pendency of the adjudication of this motion.
    (B) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 238(b) of the Act 
or an exclusion, deportation, or removal order reinstated by the 
Service under section 241(a)(5) of the Act that the alien's claim to 
withholding of removal under Sec. 208.16(c) or deferral of removal 
under Sec. 208.17(a) will be considered under Sec. 208.31.
    (C) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 235(c) of the Act 
that the alien's claim to protection under the Convention Against 
Torture will be decided by the Service as provided in Sec. 208.18(d) 
and 235.8(b)(4) and will not be considered under the provisions of this 
part relating to consideration or review by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (4) Aliens whose claims to protection under the Convention Against 
Torture were finally decided by the Service prior to March 22, 1999. 
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3) 
of this section do not apply to cases in which, prior to March 22, 
1999, the Service has made a final administrative determination about 
the applicability of Article 3 of the Convention Against Torture to the 
case of an alien who filed a request with the Service for protection 
under Article 3. If, prior to March 22, 1999, the Service determined 
that an applicant cannot be removed consistent with the Convention 
Against Torture, the alien shall be considered to have been granted 
withholding of removal under Sec. 208.16(c), unless the alien is 
subject to mandatory denial of withholding of removal under 
Sec. 208.16(d)(2) or (d)(3), in which case the alien will be considered 
to have been granted deferral of removal under 208.17(a). If, prior to 
March 22, 1999, the Service determined that an alien can be removed 
consistent with the Convention Against Torture, the alien will be 
considered to have been finally denied withholding of removal under 
Sec. 208.16(c) and deferral of removal under Sec. 208.17(a).
    (c) Diplomatic assurances against torture obtained by the Secretary 
of State. 
    (1) The Secretary of State may forward to the Attorney General 
assurances that the Secretary has obtained from the government of a 
specific country that an alien would not be tortured there if the alien 
were removed to that country.
    (2) If the Secretary of State forwards assurances described in 
paragraph (c)(1) of this section to the Attorney General for 
consideration by the Attorney General or her delegates under this 
paragraph, the Attorney General shall determine, in consultation with 
the Secretary of State, whether the assurances are sufficiently 
reliable to allow the alien's removal to that country consistent with 
Article 3 of the Convention Against Torture. The Attorney General's 
authority under this paragraph may be exercised by the Deputy Attorney 
General or by the Commissioner, Immigration and Naturalization Service, 
but may not be further delegated.
    (3) Once assurances are provided under paragraph (c)(2) of this 
section, the alien's claim for protection under the Convention Against 
Torture shall not be considered further by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (d) Cases involving aliens ordered removed under section 235(c) of 
the Act. With respect to an alien terrorist or other alien subject to 
administrative

[[Page 8492]]

removal under section 235(c) of the Act who requests protection under 
Article 3 of the Convention Against Torture, the Service will assess 
the applicability of Article 3 through the removal process to ensure 
that a removal order will not be executed under circumstances that 
would violate the obligations of the United States under Article 3. In 
such cases, the provisions of Part 208 relating to consideration or 
review by an immigration judge, the Board of Immigration Appeals, or an 
asylum officer shall not apply.
    (e) Judicial review of claims for protection from removal under 
Article 3 of the Convention Against Torture.
    (1) Pursuant to the provisions of section 2242(d) of the Foreign 
Affairs Reform and Restructuring Act of 1998, there shall be no 
judicial appeal or review of any action, decision, or claim raised 
under the Convention or that section, except as part of the review of a 
final order of removal pursuant to section 242 of the Act; provided 
however, that any appeal or petition regarding an action, decision, or 
claim under the Convention or under section 2242 of the Foreign Affairs 
Reform and Restructuring Act of 1998 shall not be deemed to include or 
authorize the consideration of any administrative order or decision, or 
portion thereof, the appeal or review of which is restricted or 
prohibited by the Act.
    (2) Except as otherwise expressly provided, nothing in this 
paragraph shall be construed to create a private right of action or to 
authorize the consideration or issuance of administrative or judicial 
relief.
    18. Newly redesignated 208.19 is revised to read as follows:


Sec. 208.19  Determining if an asylum application is frivolous.

    For applications filed on or after April 1, 1997, an applicant is 
subject to the provisions of section 208(d)(6) of the Act only if a 
final order by an immigration judge or the Board of Immigration Appeals 
specifically finds that the alien knowingly filed a frivolous asylum 
application. For purposes of this section, an asylum application is 
frivolous if any of its material elements is deliberately fabricated. 
Such finding shall only be made if the immigration judge or the Board 
is satisfied that the applicant, during the course of the proceedings, 
has had sufficient opportunity to account for any discrepancies or 
implausible aspects of the claim. For purposes of this section, a 
finding that an alien filed a frivolous asylum application shall not 
preclude the alien from seeking withholding of removal.
    19. Newly redesignated Sec. 208.21 is revised to read as follows:


Sec. 208.21  Effect on exclusion, deportation, and removal proceedings.

    (a) An alien who has been granted asylum may not be deported or 
removed unless his or her asylum status is terminated pursuant to 
Sec. 208.23 of this part. An alien in exclusion, deportation, or 
removal proceedings who is granted withholding of removal or 
deportation or deferral of removal may not be deported or removed to 
the country to which his or her deportation or removal is ordered 
withheld or deferred unless the withholding order is terminated 
pursuant to Sec. 208.23 or deferral is terminated pursuant to 
Sec. 208.17(d) or (e).
    (b) When an alien's asylum status or withholding of removal or 
deportation is terminated under this part, the Service shall initiate 
removal proceedings under section 235 or 240 of the Act, as 
appropriate, if the alien is not already in exclusion, deportation, or 
removal proceedings or subject to a final order of removal. Removal 
proceedings may also be in conjunction with a termination hearing 
scheduled under Sec. 208.23(e).
    20. Section 208.30 is amended by:
    A. Revising paragraphs (b), (d) and (e); and by
    B. Revising paragraphs (f)(1), and (f)(2), and (f)(3), to 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.

* * * * *
    (b) Interview and procedure. The asylum officer, as defined in 
section 235(b)(1)(E) of the Act, will conduct the interview in a 
nonadversarial manner, separate and apart from the general public. At 
the time of the interview, the asylum officer shall verify that the 
alien has received Form M-444, Information about Credible Fear 
Interview in Expedited Removal Cases. The officer shall also determine 
that the alien has an understanding of the credible fear determination 
process. The alien may be required to register his or her identity 
electronically or through any other means designated by the Attorney 
General. The alien may consult with a person or persons of the alien's 
choosing prior to the interview or any review thereof, and may present 
other evidence, if available. Such consultation shall be at no expense 
to the Government and shall not unreasonably delay the process. Any 
person or persons with whom the alien chooses to consult may be present 
at the interview and may be permitted, in the discretion of the asylum 
officer, to present a statement at the end of the interview. The asylum 
officer, in his or her discretion, may place reasonable limits on the 
number of such persons who may be present at the interview and on the 
length of statement or statements made. If the alien is unable to 
proceed effectively in English, and if the asylum officer is unable to 
proceed competently in a language chosen by the alien, the asylum 
officer shall arrange for the assistance of an interpreter in 
conducting the interview. The interpreter may not be a representative 
or employee of the applicant's country of nationality or, if the 
applicant is stateless, the applicant's country of last habitual 
residence. The asylum officer shall create a summary of the material 
facts as stated by the applicant. At the conclusion of the interview, 
the officer shall review the summary with the alien and provide the 
alien with an opportunity to correct errors therein. The asylum officer 
shall create a written record of his or her determination, including a 
summary of the material facts as stated by the applicant, any 
additional facts relied on by the officer, and the officer's 
determination of whether, in light of such facts, the alien has 
established a credible fear of persecution or torture. The decision 
shall not become final until reviewed by a supervisory asylum officer.
* * * * *
    (d) Referral for an asylum hearing. If an alien, other than an 
alien stowaway, is found to have a credible fear of persecution or 
torture, the asylum officer will so inform the alien and issue a Form 
I-862, Notice to Appear, for full consideration of the asylum and 
withholding of removal claim in proceedings under section 240 of the 
Act. Parole of the alien may only be considered in accordance with 
section 212(d)(5) of the Act and Sec. 212.5 of this chapter. If an 
alien stowaway is found to have a credible fear of persecution or 
torture, the asylum officer will so inform the alien and issue a Form 
I-863, Notice to Referral to Immigration Judge, for full consideration 
of the asylum and withholding of removal claim in proceedings under 
Sec. 208.2(b)(1).
    (e) Removal of aliens with no credible fear of persecution or 
torture. If an alien is found not to have a credible fear of 
persecution or torture, the asylum officer shall provide the alien with 
a written notice of decision and inquire whether the alien wishes to 
have an immigration judge review the negative decision, using Form I-
869, Record of Negative Credible Fear Finding and

[[Page 8493]]

Request for Review by Immigration Judge, on which the alien shall 
indicate whether he or she desires such review. If the alien is not a 
stowaway, the officer shall also order the alien removed and issue a 
Form I-860, Notice and Order of Expedited Removal. If the alien is a 
stowaway and the alien does not request a review by an immigration 
judge, the asylum officer shall also refer the alien to the district 
director for completion of removal proceedings in accordance with 
section 235(a)(2) of the Act.
    (f) * * *
    (1) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. The immigration judge's decision is final and may 
not be appealed.
    (2) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, 
the immigration judge shall vacate the order of the asylum officer 
issued on Form I-860 and the Service may commence removal proceedings 
under section 240 of the Act, during which time the alien may file an 
application for asylum and withholding of removal in accordance with 
Sec. 208.4(b)(3)(i).
    (3) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed 
to file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or the 
Service to the Board of Immigration Appeals. If and when a denial of 
the application for asylum or withholding of removal becomes final, the 
alien shall be removed from the United States in accordance with 
section 235(a)(2) of the Act. If and when an approval of the 
application for asylum or withholding of removal becomes final, the 
Service shall terminate removal proceedings under section 235(a)(2) of 
the Act.
    21. In Subpart B, Sec. 208.31 is added to read as follows:


Sec. 208.31  Reasonable fear of persecution or torture determinations 
involving aliens ordered removed under section 238(b) of the Act and 
aliens whose removal is reinstated under section 241(a)(5) of the Act.

    (a) Jurisdiction. This section shall apply to any alien ordered 
removed under section 238(b) of the Act or whose deportation, 
exclusion, or removal order is reinstated under section 241(a)(5) of 
the Act who, in the course of the administrative removal or 
reinstatement process, expresses a fear of returning to the country of 
removal. The Service has exclusive jurisdiction to make reasonable fear 
determinations, and EOIR has exclusive jurisdiction to review such 
determinations.
    (b) Initiation of reasonable fear determination process. Upon 
issuance of a Final Administrative Removal Order under Sec. 238.1 of 
this chapter, or notice under Sec. 241.8(b) of this chapter that an 
alien is subject to removal, an alien described in paragraph (a) of 
this section shall be referred to an asylum officer for a reasonable 
fear determination. In the absence of exceptional circumstances, this 
determination will be conducted within 10 days of the referral.
    (c) Interview and Procedure. The asylum officer shall conduct the 
interview in a non-adversarial manner, separate and apart from the 
general public. At the time of the interview, the asylum officer shall 
determine that the alien has an understanding of the reasonable fear 
determination process. The alien may be represented by counsel or an 
accredited representative at the interview, at no expense to the 
Government, and may present evidence, if available, relevant to the 
possibility of persecution or torture. The alien's representative may 
present a statement at the end of the interview. The asylum officer, in 
his or her discretion, may place reasonable limits on the number of 
persons who may be present at the interview and the length of the 
statement. If the alien is unable to proceed effectively in English, 
and if the asylum officer is unable to proceed competently in a 
language chosen by the alien, the asylum officer shall arrange for the 
assistance of an interpreter in conducting the interview. The 
interpreter may not be a representative or employee of the applicant's 
country or nationality, or if the applicant is stateless, the 
applicant's country of last habitual residence. The asylum officer 
shall create a summary of the material facts as stated by the 
applicant. At the conclusion of the interview, the officer shall review 
the summary with the alien and provide the alien with an opportunity to 
correct errors therein. The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officers, and the officer's determination of whether, in light of such 
facts, the alien has established a reasonable fear of persecution or 
torture. The alien shall be determined to have a reasonable fear of 
persecution or torture if the alien establishes a reasonable 
possibility that he or she would be persecuted on account of his or her 
race, religion, nationality, membership in a particular social group or 
political opinion, or a reasonable possibility that he or she would be 
tortured in the country of removal. For purposes of the screening 
determination, the bars to eligibility for withholding of removal under 
section 241(b)(3)(B) of the Act shall not be considered.
    (d) Authority. Asylum officers conducting screening determinations 
under this section shall have the authority described in Sec. 208.9(c).
    (e) Referral to Immigration Judge. If an asylum officer determines 
that an alien described in this section has a reasonable fear of 
persecution or torture, the officer shall so inform the alien and issue 
a Form I-863, Notice of Referral to the Immigration Judge, for full 
consideration of the request for withholding of removal only. Such 
cases shall be adjudicated by the immigration judge in accordance with 
the provisions of Sec. 208.16 within 10 days of the issuance of the I-
863. Appeal of the immigration judge's decision shall lie to the Board 
of Immigration Appeals.
    (f) Removal of aliens with no reasonable fear of persecution or 
torture. If the asylum officer determines that the alien has not 
established a reasonable fear of persecution or torture, the asylum 
officer shall inform the alien in writing of the decision and shall 
inquire whether the alien wishes to have an immigration judge review 
the negative decision, using Form I-898, Record of Negative Reasonable 
Fear Finding and Request for Review by Immigration Judge, on which the 
alien shall indicate whether he or she desires such review.
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to review by an 
immigration judge upon the alien's request. If the alien requests such 
review, the asylum officer shall serve him or her with a Form I-863. 
The record of determination, including copies of the Form I-863, the 
asylum officer's notes, the summary of the material facts, and other 
materials upon which the determination was based shall be provided to 
the immigration judge with the negative determination. Upon review of 
the asylum officer's negative reasonable fear determination:
    (1) If the immigration judge concurs with the asylum officer's 
determination that the alien does not have a reasonable

[[Page 8494]]

fear of persecution or torture, the case shall be returned to the 
Service for removal of the alien. No appeal shall lie from the 
immigration judge's decision.
    (2) If the immigration judge finds that the alien has a reasonable 
fear of persecution or torture, the alien may submit Form I-589, 
Application for Asylum and Withholding of Removal.
    (i) The immigration judge shall consider only the alien's 
application for withholding of removal under Sec. 208.16 and shall 
determine whether the alien's removal to the country of removal must be 
withheld or deferred.
    (ii) Appeal of the immigration judge's decision whether removal 
must be withheld or deferred lies to the Board of Immigration Appeals. 
If the alien or the Service appeals the immigration judge's decision, 
the Board shall review only the immigration judge's decision regarding 
the alien's eligibility for withholding or deferral of removal under 
Sec. 208.16.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    22. The authority citation for part 235 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.

    23. Section 235.1 is amended by revising paragraph (d)(4) to read 
as follows:


Sec. 235.1  Scope of examination.

* * * * *
    (d) * * *
    (4) An alien stowaway is not an applicant for admission and may not 
be admitted to the United States. A stowaway shall be removed from the 
United States under section 235(a)(2) of the Act. The provisions of 
section 240 of the Act are not applicable to stowaways, nor is the 
stowaway entitled to further hearing or review of the removal, except 
that an alien stowaway who indicates an intention to apply for asylum, 
or expresses a fear of persecution, a fear of torture, or a fear of 
return to the country of proposed removal shall be referred to an 
asylum officer for a determination of credible fear of persecution or 
torture in accordance with section 235(b)(1)(B) of the Act and 
Sec. 208.30 of this chapter. An alien stowaway who is determined to 
have a credible fear of persecution or torture shall have his or her 
asylum application adjudicated in accordance with Sec. 208.2(b)(2) of 
this chapter.
* * * * *
    24. In section 235.3, revise paragraph (b)(4) introductory text and 
paragraph (b)(4)(i)(D) to read as follows:


Sec. 235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (4) Claim of asylum or fear of persecution or torture. If an alien 
subject to the expedited removal provisions indicates an intention to 
apply for asylum, or expresses a fear of persecution, a fear of 
torture, or a fear of return to his or her country, the inspecting 
officer shall not proceed further with removal of the alien until the 
alien has been referred for an interview by an asylum officer in 
accordance with Sec. 208.30 of this chapter to determine if the alien 
has a credible fear of persecution or torture. The examining 
immigration officer shall record sufficient information in the sworn 
statement to establish and record that the alien has indicated such 
intention, fear, or concern, and to establish the alien's 
inadmissibility.
    (i) * * *
    (D) The consequences of failure to establish a credible fear of 
persecution or torture.
* * * * *
    25. In Sec. 235.6, revise paragraphs (a)(1)(ii) and (iii), and 
paragraph (a)(2)(i) to read as follows:


Sec. 235.6  Referral to immigration judge.

    (a) * * *
    (1) * * *
    (ii) If an asylum officer determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
refers the case to the immigration judge for consideration of the 
application for asylum.
    (iii) If the immigration judge determines that an alien in 
expedited removal proceedings has a credible fear of persecution or 
torture and vacates the expedited removal order issued by the asylum 
officer.
* * * * *
    (2) * * *
    (i) If an asylum officer determines that an alien does not have a 
credible fear of persecution or torture, and the alien requests a 
review of that determination by an immigration judge; or
* * * * *
    26. In Sec. 235.8, add a new paragraph (b)(4), to read as follows:


Sec. 235.8  Inadmissibility on security and related grounds.

* * * * *
    (b) * * *
    (4) The Service shall not execute a removal order under this 
section under circumstances that violate section 241(b)(3) of the Act 
or Article 3 of the Convention Against Torture. The provisions of part 
208 of this chapter relating to consideration or review by an 
immigration judge, the Board of Immigration Appeals, or an asylum 
officer shall not apply.
* * * * *

PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS

    27. The authority citation for part 238 continues to read s 
follows:

    Authority: 8 U.S.C. 1228; 8 CFR part 2.

    28. In Sec. 238.1, revise paragraphs (b)(2)(i) and (c)(1), and add 
new paragraph (f)(3) to read as follows:


Sec. 238.1  Proceeding under section 238(b) of the Act.

* * * * *
    (b) * * *
    (2) Notice.
    (i) Removal proceedings under section 238(b) of the Act shall 
commence upon personal service of the Notice of Intent upon the alien, 
as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of this chapter. 
The Notice of Intent shall set forth the preliminary determinations and 
inform the alien of the Service's intent to issue a Form I-851A, Final 
Administrative Removal Order, without a hearing before an immigration 
judge. The Notice of Intent shall constitute the charging document. The 
Notice of Intent shall include allegations of fact and conclusions of 
law. It shall advise that the alien: has the privilege of being 
represented, at no expense to the government, by counsel of the alien's 
choosing, as long as counsel is authorized to practice in removal 
proceedings; may request withholding of removal to a particular country 
if he or she fears persecution or torture in that country; may inspect 
the evidence supporting the Notice of Intent; may rebut the charges 
within 10 calendar days after service of such Notice (or 13 calendar 
days if service of the Notice was by mail).
* * * * *
    (c) * * *
    (1) Time for response. The alien will have 10 calendar days from 
service of the Notice of Intent or 13 calendar days if service is by 
mail, to file a response to the Notice of Intent. In the response, the 
alien may: designate his or her choice of country for removal; submit a 
written response rebutting the allegations supporting the charge and/or 
requesting the opportunity to review the Government's evidence; and/or 
submit a statement indicating an intention to request withholding of 
removal under 8 CFR 208.16 of this chapter, and/or request in writing 
an extension of time

[[Page 8495]]

for response, stating the specific reasons why such an extension is 
necessary.
* * * * *
    (f) * * *
    (3) Withholding of removal. If the alien has requested withholding 
of removal under Sec. 208.16 of this chapter, the deciding officer 
shall, upon issuance of a Final Administrative Removal Order, 
immediately refer the alien's case to an asylum officer to conduct a 
reasonable fear determination in accordance with Sec. 208.31 of this 
chapter.
* * * * *

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    29. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111 
Stat. 2160, 2193); 8 CFR part 2.

    30. In Sec. 240.1, revise paragraph (a) to read as follows:


Sec. 240.1  Immigration Judges.

    (a) Authority. (1) In any removal proceeding pursuant to section 
240 of the Act, the immigration judge shall have the authority to:
    (i) Determine removability pursuant to section 240(a)(1) of the 
Act; to make decisions, including orders of removal as provided by 
section 240(c)(1)(A) of the Act;
    (ii) To determine applications under sections 208, 212(a)(2)(F), 
212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g), 
212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H), 
237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act and 
section 202 of Pub. L. 105-100;
    (iii) To order withholding of removal pursuant to section 241(b)(3) 
of the Act and pursuant to the Convention Against Torture; and
    (iv) To take any other action consistent with applicable law and 
regulations as may be appropriate.
    (2) In determining cases referred for further inquiry, immigration 
judges shall have the powers and authority conferred upon them by the 
Act and this chapter. Subject to any specific limitation prescribed by 
the Act and this chapter, immigration judges shall also exercise the 
discretion and authority conferred upon the Attorney General by the Act 
as is appropriate and necessary for the disposition of such cases. An 
immigration judge may certify his or her decision in any case under 
section 240 of the Act to the Board of Immigration Appeals when it 
involves an unusually complex or novel question of law or fact. Nothing 
contained in this part shall be construed to diminish the authority 
conferred on immigration judges under sections 101(b)(4) and 103 of the 
Act.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    31. The authority citation for part 241 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and 
1330; 8 CFR part 2.

    32. In Sec. 241.8, revise paragraph (d) to read as follows:


Sec. 241.8  Reinstatement of removal orders.

* * * * *
    (d) Exception for withholding of removal. If an alien whose prior 
order of removal has been reinstated under this section expresses a 
fear of returning to the country designated in that order, the alien 
shall be immediately referred to an asylum officer for an interview to 
determine whether the alien has a reasonable fear of persecution or 
torture pursuant to Sec. 208.31 of this chapter.
* * * * *
    33. In Sec. 241.11, revise paragraph (d)(1) to read as follows:


Sec. 241.11  Detention and removal of stowaways.

* * * * *
    (d) Stowaways claiming asylum--
    (1) Referral for credible fear determination. A stowaway who 
indicates an intention to apply for asylum or a fear of persecution or 
torture upon return to his or her native country or country of last 
habitual residence (if not a national of any country) shall be removed 
from the vessel or aircraft of arrival in accordance with Sec. 208.5(b) 
of this chapter. The immigration officer shall refer the alien to an 
asylum officer for a determination of credible fear in accordance with 
section 235(b)(1)(B) of the Act and Sec. 208.30 of this chapter. The 
stowaway shall be detained in the custody of the Service pending the 
credible fear determination and any review thereof. Parole of such 
alien, in accordance with section 212(d)(5) of the Act, may be 
permitted only when the Attorney General determines, in the exercise of 
discretion, that parole is required to meet a medical emergency or is 
necessary for a legitimate law enforcement objective. A stowaway who 
has established a credible fear of persecution or torture in accordance 
with Sec. 208.30 of this chapter may be detained or paroled pursuant to 
Sec. 212.5 of this chapter during any consideration of the asylum 
application. In determining whether to detain or parole the alien, the 
Service shall consider the likelihood that the alien will abscond or 
pose a security risk.
* * * * *

PART 253--PAROLE OF ALIEN CREWMEN

    34. The authority citation in part 253 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.

    35. In Sec. 253.1, revise paragraph (f) to read as follows:


Sec. 253.1  Parole.

* * * * *
    (f) Crewman, stowaway, or alien removable under section 235(c) 
alleging persecution or torture. Any alien crewman, stowaway, or alien 
removable under section 235(c) of the Act who alleges that he or she 
cannot return to his or her country of nationality or last habitual 
residence (if not a national of any country) because of fear of 
persecution in that country on account of race, religion, nationality, 
membership in a particular social group, or political opinion, or 
because of fear of torture is eligible to apply for asylum or 
withholding of removal under 8 CFR part 208. Service officers shall 
take particular care to ensure that the provisions of Sec. 208.5(b) of 
this chapter regarding special duties toward aliens aboard certain 
vessels are closely followed.
* * * * *
    36. Add a new part 507 to read as follows:

[[Page 8496]]

PART 507--ALIEN TERRORIST REMOVAL PROCEDURES


Sec. 507.1  Eligibility for Protection under the Convention Against 
Torture.

    A removal order under Title V of the Act shall not be executed in 
circumstances that would violate Article 3 of the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. 
L. 105-277. Convention-based claims by aliens subject to removal under 
this Title shall be determined by the Attorney General, in consultation 
with the Secretary of State.

    Authority: Pub. L. 105-277, 112 Stat. 2681.

    Dated: February 13, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-4140 Filed 2-18-99; 8:45 am]
BILLING CODE 4410-10-P