[Federal Register Volume 69, Number 45 (Monday, March 8, 2004)]
[Proposed Rules]
[Pages 10627-10633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5065]


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DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1208, 1212, and 1240

[EOIR No. 142P; AG Order No. 2709-2004]
RIN 1125-AA46


Asylum Claims Made by Aliens Arriving from Canada at Land Border 
Ports-of-Entry

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: The recent Safe Third Country agreement between the United 
States and Canada provides new procedures for dealing with certain 
categories of aliens crossing at land border ports-of-entry between the 
United States and Canada, or in transit from Canada or the United 
States, and who express a fear of persecution or torture if returned to 
the country of their nationality or habitual residence. The Agreement 
recognizes that the United States and Canada are safe third countries, 
each of which offers full procedures for nationals of other countries 
to seek asylum or other protection. Accordingly, subject to several 
specific exceptions, the Agreement provides for the United States to 
return such arriving aliens to Canada, the country of last presence, to 
seek protection under Canadian law, rather than applying for asylum in 
the United States. Subject to the stated exceptions, such aliens 
attempting to travel from Canada to the United States, or vice versa, 
will be allowed to seek asylum or other protection in one country or 
the other, but not in both.
    Elsewhere in this issue of the Federal Register, the Department of 
Homeland Security (DHS) is publishing a proposed rule that would, among 
other things, give asylum officers the authority to apply the Agreement 
with respect to arriving aliens. This proposed rule provides that the 
immigration judges will not review the threshold factual determinations 
by asylum officers that an alien does not satisfy any of the exceptions 
under the Agreement. However, for any alien who the asylum officer 
determines is not barred by the Agreement, the existing credible fear 
process under section 235(b) of the Immigration and Nationality Act 
(Act) remains unchanged, including the right to seek review by an 
immigration judge. Finally, this rule provides authority for an 
immigration judge to apply the Agreement with respect to aliens whom 
DHS has chosen to place in removal proceedings under section 240 of the 
Act.

[[Page 10628]]


DATES: Written comments must be submitted on or before May 7, 2004.

FOR FURTHER INFORMATION CONTACT: Chuck Adkins-Blanch, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

ADDRESSES: Please submit written comments to Chuck Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Office of the 
General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, 
Virginia, 22041. To ensure proper handling, please reference RIN No. 
1125-AA46 on your correspondence. The public may also submit comments 
electronically to the EOIR at [email protected]. When submitting 
comments electronically, you must include RIN No.1125-AA46 in the 
subject box.

SUPPLEMENTARY INFORMATION: On December 5, 2002, the governments of the 
United States and Canada signed the Agreement Between the Government of 
the United States and the Government of Canada For Cooperation in the 
Examination of Refugee Status Claims from Nationals of Third Countries 
(``bilateral Agreement with Canada'' or ``Agreement''). The Agreement 
will not take effect until the United States has promulgated 
implementing regulations and Canada has completed its own necessary 
domestic procedures to bring the Agreement into force. The 
supplementary information in the proposed rule of the Department of 
Homeland Security published elsewhere in this issue of the Federal 
Register explains in greater detail the goals of the Agreement and the 
reasons for including its particular terms and exceptions, and persons 
commenting on this rule should keep in mind the discussion of these 
issues in the DHS proposed rule.

Terms of the Agreement

    This Agreement permits the United States to return to Canada, the 
country of last presence, certain aliens seeking protection who attempt 
to enter the United States from Canada at a land border port-of-entry, 
or are being removed from Canada in transit through the United States. 
Such aliens are not eligible to apply for asylum, withholding of 
removal, or protection under the Convention Against Torture in the 
United States, unless one of the exceptions stated in the Agreement 
applies. Under the Agreement, those aliens who are returned to Canada 
will have their protection claims adjudicated by Canadian authorities 
under Canadian law. Similarly, the Agreement permits Canada to return 
to the United States certain aliens seeking protection attempting to 
enter Canada from the United States at land border ports-of-entry, and 
certain aliens being removed from the United States in transit through 
Canada. In either case, the Agreement ensures that the asylum seekers 
will have access to a full and fair procedure for determining their 
asylum or other protection claims, either by the United States or by 
Canada, before the alien can be returned to the country of his or her 
nationality or habitual residence.
    The Agreement applies to aliens arriving from Canada who are 
inadmissible under section 212(a)(6)(C) (fraud or willful 
misrepresentation) or section 212(a)(7) (failure to present proper 
documents) of the Immigration and Nationality Act (Act), 8 U.S.C. 
1182(a)(6)(C), (7). In general, all arriving aliens who are 
inadmissible on either of those grounds are subject to expedited 
removal pursuant to section 235(b) of the Act. Under 8 CFR 235.3(b)(4), 
aliens subject to expedited removal who seek asylum in the United 
States or otherwise express a fear of persecution or torture are 
referred to an asylum officer employed by U.S. Citizenship and 
Immigration Services, a component of DHS, for a credible fear 
determination in accordance with 8 CFR 208.30.
    As stated last year when the Agreement was being negotiated, ``Such 
an arrangement would limit the access of asylum seekers, under 
appropriate circumstances, to the system of only one of the two 
countries.'' 67 FR 46213 (July 12, 2002). Thus, the Agreement provides 
a threshold basis for returning certain arriving aliens to Canada to 
pursue their protection claims under Canadian law, but also provides 
several specific exceptions in which arriving aliens would be permitted 
to remain in the United States in order to pursue protection under 
United States law.
    In particular, the Agreement provides important exceptions based on 
concerns for family unity, allowing an arriving alien to remain in the 
United States to pursue protection claims if the alien has a qualifying 
family member living in the United States and that family member either 
has been granted lawful status in the United States (other than 
visitor), or the family member is over the age of 18 and has filed a 
pending application for asylum. The range of family members who may 
qualify as ``anchor'' relatives due to their presence in the United 
States is far broader than those recognized under other provisions of 
immigration law. It includes spouses, sons, daughters, parents, legal 
guardians, siblings, grandparents, grandchildren, aunts, uncles, 
nieces, and nephews. There is a separate exception for minors who do 
not have a parent in either the United States or Canada, though the 
definition of ``unaccompanied minor'' under the Agreement is also 
different than that used in other contexts under the immigration laws.
    The Agreement also has exceptions for an arriving alien who is a 
citizen of Canada (or a habitual resident of Canada not having a 
country of nationality), as well as for aliens who presented a valid 
visa or other travel document (other than for transiting the United 
States) or were exempt from the requirement to present a passport.
    Finally, the Agreement recognizes that the United States Government 
may conclude, in its discretion, that it is in the public interest to 
allow an arriving alien to remain in the United States to pursue 
protection even though the alien does not meet any of the specific 
exceptions under the Agreement. This latter discretionary determination 
is reserved to DHS alone and is not within the province of the 
immigration judges to review or grant.
    The DHS proposed rule on this subject provides a more complete 
discussion of the Agreement, and the exceptions under the Agreement 
that would be codified at 8 CFR 208.30. The specific terms of the 
bilateral Agreement with Canada can be found on the DHS Web site at 
http://www.uscis.gov.

Legal Authority Permitting the Use of a Bilateral Agreement as a Bar to 
Applying for Asylum

    Section 208(a)(1) of the Act permits any alien who is physically 
present in or who arrives at the United States to apply for asylum, and 
specifically recognizes the right of arriving aliens to present claims 
for asylum through the credible fear review process under section 
235(b) of the Act. However, section 208(a)(2)(A) of the Act states that 
the right to apply for asylum under paragraph (1) shall not apply 
where, ``pursuant to a bilateral or multilateral agreement, the alien 
may be removed to a country where the alien's life or freedom would not 
be threatened on account of race, religion, nationality, membership in 
a particular social group, or political opinion, and where the alien 
would have access to a full and fair procedure for determining a claim 
to asylum or equivalent temporary protection, unless the Attorney 
General [or the Secretary of Homeland Security] finds that it is in the 
public interest for the alien to receive asylum in the United States.''
    The bilateral Agreement with Canada allocates responsibility 
between the

[[Page 10629]]

United States and Canada for processing claims of certain asylum-
seekers, enhancing the two nations' ability to manage, in an orderly 
fashion, asylum claims brought by persons crossing our common border. 
At present, it is the only agreement, for purposes of section 
208(a)(2)(A) of the Act, that would bar an arriving alien from applying 
for asylum in the United States.

Implementation of the Agreement

    The DHS rule published elsewhere in this issue of the Federal 
Register proposes to revise the DHS rules in 8 CFR chapter I, parts 208 
and 212 to implement the provisions of the Agreement. This rule 
proposes revisions to the regulations of the Department of Justice 
relating to the role of immigration judges in implementing the 
Agreement.
    Until February 28, 2003, the regulations governing the immigration 
judges and the Board of Immigration Appeals (BIA) were also in 8 CFR 
chapter I because the former Immigration and Naturalization Service 
(INS) and the Executive Office for Immigration Review (EOIR) were both 
part of the Department of Justice under the authority of the Attorney 
General. On March 1, 2003, however, the functions of the former INS 
were transferred from the Department of Justice to DHS pursuant to the 
Homeland Security Act (HSA), Public Law 107-296, 116 Stat, 2135, 2178 
(2002). That law also provided that EOIR (including the administrative 
adjudications conducted by the immigration judges and the BIA) remains 
in the Department of Justice under the authority of the Attorney 
General. Accordingly, on February 28, 2003, the Attorney General 
published a technical rule that reorganized title 8 of the Code of 
Federal Regulations to reflect the transfer of the functions of the 
former INS to DHS while creating a separate set of regulations 
pertaining to EOIR. See Aliens and Nationality; Homeland Security; 
Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003). This 
technical rule created a new chapter V in 8 CFR and transferred or 
duplicated certain parts and sections from chapter I to the new chapter 
V and made other amendments. The regulations governing proceedings 
before EOIR are now contained in 8 CFR chapter V, beginning with part 
1001. The DHS regulations pertaining to the Act remain in 8 CFR chapter 
I.
    In its rule, DHS proposes to implement the Agreement by revising 8 
CFR 208.4 and 208.30 to permit asylum officers to conduct a threshold 
screening to determine whether or not an alien qualifies for an 
exception under the Agreement that would allow the alien to pursue an 
asylum or protection claim in the United States. The exceptions are 
listed in 8 CFR 208.30(e)(6)(iii) of the DHS proposed rule. If the 
arriving alien does not qualify for an exception under the Agreement, 
there would be no need for a credible fear determination on the merits 
of the alien's asylum claims and, accordingly, no right to seek review 
of the merits of the asylum claims by an immigration judge, as 
discussed below. The alien would be returned to Canada to pursue an 
asylum or protection claim under Canadian law. If the arriving alien 
does qualify for an exception to the Agreement, the asylum officer 
would proceed promptly to consider the merits of the alien's claims for 
protection under United States law through the regular credible fear 
process. Finally, DHS adopts definitions of ``credible fear of 
persecution'' and ``credible fear of torture'' in the 8 CFR 208.30(e).
    This proposed rule is a companion to the DHS rule. Because the 
immigration judges and the BIA have independent authority over asylum 
and withholding claims made by aliens in removal proceedings, the 
Attorney General duplicated all of the provisions of 8 CFR part 208 as 
a new part in 8 CFR chapter V, part 1208. While DHS is making changes 
to its regulations in part 208 governing the asylum officers, the 
Attorney General in this rule is proposing to make changes to parts 
1003 and 1208, relating to review of negative credible fear 
determinations by immigration judges, and part 1240, relating to the 
application of the Agreement to aliens in removal proceedings.
    This rule takes account of the proposed changes being made by DHS 
in 8 CFR part 208, but does not propose to duplicate in part 1208 the 
full text of all of those changes. Many of the changes that DHS is 
proposing to make to 8 CFR 208.30 pertain only to the actions of the 
asylum officers, and do not directly affect the authority of the 
immigration judges and the BIA. Thus, in many instances, this rule will 
remove existing language from 8 CFR part 1208.30 and simply insert 
cross-references to the provisions of the DHS regulations in part 
208.30 rather than reprinting them in full. In addition, because the 
provisions in 8 CFR 212.5 relating to the granting of parole pertain to 
actions by the Department of Homeland Security, and do not directly 
affect the authority of the immigration judges and the BIA, this rule 
does not attempt to track the changes that DHS is proposing to make to 
8 CFR 212.5. Instead, this rule proposes to remove the entire text of 
the parallel provision in 8 CFR 1212.5 and merely insert a cross-
reference to the DHS regulations in 8 CFR 212.5.

Threshold Screening of an Alien's Eligibility Under the Agreement

    Under section 235(b)(1)(B)(iii)(III) of the Act, an arriving alien 
who has received a negative credible fear determination by an asylum 
officer may request a prompt review by an immigration judge. The 
purpose of this review by an immigration judge is to allay concerns 
that an arriving alien might be returned to the country of his or her 
nationality or habitual residence to face persecution or torture, 
without having had an adequate opportunity to present his or her claims 
to U.S. immigration officials. The current regulations governing review 
of credible fear determinations by immigration judges are codified in 8 
CFR 1003.42 and 1208.30(g)(2). In the credible fear review process, the 
alien is able to present any information relating to the likelihood of 
persecution or torture if the alien were removed to the country of his 
or her nationality or habitual residence.
    For aliens who are subject to the Agreement, however, the threshold 
question is whether the alien should be returned to Canada for Canadian 
authorities to consider the merits of that alien's claims, or whether 
the alien will be allowed to pursue protection in the United States. 
Because the threshold nature of the issues under the Agreement is quite 
different from the issues relating to the merits of an alien's claimed 
fear of persecution or torture if returned to his or her country of 
nationality, this proposed rule, like the DHS rule, does not provide 
for an immigration judge to review an asylum officer's threshold 
determination under the Agreement that the alien should be returned to 
Canada for a determination of his or her asylum claims under Canadian 
law.
    In the credible fear process, asylum officers consider the merits 
of the claimed fear of persecution or torture in making a credible fear 
determination. If the asylum officer makes a negative credible fear 
determination, the alien has the right to have an immigration judge 
review the merits of that determination. In contrast, in the case of an 
arriving alien from Canada who is subject to the Agreement and does not 
meet any of the exceptions, the merits of the alien's claims would not 
even arise in any proceedings before an immigration judge, and there 
would be no occasion for an immigration judge to consider or determine 
whether or not

[[Page 10630]]

the alien in fact has a credible fear of facing persecution or torture 
if returned to the country of his or her nationality or habitual 
residence. Such issues are irrelevant to a review of the specific 
exceptions under the Agreement (since the public interest exception 
under the Agreement is for DHS alone to consider, not an immigration 
judge). Unless the alien is under the age of 18 and unaccompanied, the 
principal issue for DHS to consider under the Agreement as a practical 
matter in deciding if the alien meets one of the exceptions will be 
whether the alien has a qualifying family member living in the United 
States (i.e., a qualifying family member who is either in lawful 
immigration status in the United states, other than as a visitor, or 
has a pending asylum application).
    Given the narrowness of the factual issues, the Department believes 
that the applicability of the Agreement can readily be considered and 
adjudicated by asylum officers. None of the threshold factual 
determinations under the Agreement has any relationship to the merits 
of an arriving alien's asylum claims, and none calls for the kind of 
expert judgment exercised by immigration judges in conducting credible 
fear reviews concerning the merits of an arriving alien's asylum 
claims. In addition, because the law requires that arriving aliens be 
detained, providing for reviews by immigration judges of these 
threshold issues under the Agreement through a credible fear review 
would likely result in prolonging the detention of such aliens, since 
the law provides that such a credible fear review can occur as late as 
7 days after the asylum officer's determination. For these reasons, 
this rule provides that an immigration judge will not have jurisdiction 
to review an asylum officer's threshold determination under the 
Agreement that an alien is to be returned to Canada in order to pursue 
an adjudication of his or her asylum claims under Canadian law.

Removal Proceedings

    New Sec.  1240.11(g) provides rules pertaining to an arriving alien 
who is subject to the Agreement but DHS, in its discretion, decides to 
place the alien into removal proceedings under section 240 of the Act, 
rather than in expedited removal. Thus, if the immigration judge 
determines that the alien was placed into removal proceedings in 
connection with his or her arrival at a United States port-of-entry on 
the United States/Canadian land border, the alien would not be eligible 
to apply for asylum pursuant to section 208(a)(2)(A) of the Act unless 
an exception to the Agreement is applicable. DHS might decide, in its 
discretion, to place an arriving alien into regular removal 
proceedings, for example, in order to lodge additional charges of 
inadmissibility against the alien, or, as suggested in the 
supplementary information in the DHS draft rule, because the alien is a 
minor. However, if DHS is seeking removal of the alien upon his or her 
arrival from Canada at a United States land border, it does not make 
any legal difference under the Agreement and under section 208(a)(2)(A) 
of the Act whether DHS has decided to use expedited removal procedures 
under section 235 of the Act or regular removal proceedings under 
section 240 of the Act.
    Under this rule, an alien in regular removal proceedings who is 
subject to the Agreement would not be able to pursue an application for 
asylum, withholding of removal, or protection under the Convention 
Against Torture before the immigration judge, unless the alien 
satisfies the burden of proof to establish by a preponderance of the 
evidence that he or she qualifies for an exception to the Agreement, 
other than the public interest exception. (As previously noted, the 
decision to invoke the public interest exception is solely within the 
discretion of DHS. If DHS determines that it is in the public interest 
to allow a covered alien to pursue a claim for asylum or withholding of 
removal in removal proceedings, then DHS will file a written notice of 
its decision before the immigration judge, as provided in new 8 CFR 
1240.11(g)(3).) If the alien does not establish an exception, he/she 
will be returned to Canada (the country of the alien's last presence) 
in order to pursue his or her protection claims there under Canadian 
law. As provided in the Agreement, the United States cannot remove an 
arriving alien who is covered by the Agreement to any country other 
than Canada in order to have recourse to protection under Canadian law.
    This rule does not affect any other individuals applying for asylum 
in removal proceedings who are not subject to the Agreement. In 
particular, under the terms of the Agreement, an alien who is charged 
with grounds of deportability after being found in the United States 
will not be subject to the limitations of the Agreement, even if the 
alien had previously entered the United States from Canada, or any 
alien who arrived in the United States by air or water, or who entered 
the United States illegally at any point between the established land 
border port-of-entry.
    As suggested in the supplementary information in the DHS proposed 
rule, DHS may exercise its discretion to place certain minors into 
removal proceedings under section 240 of the Act, rather than in 
expedited removal, when they arrive at a port-of-entry at the United 
States/Canadian land border. The Agreement uses a different definition 
of the term ``unaccompanied minor'' than is used in other contexts 
under the immigration laws. An unmarried arriving alien under the age 
of 18 who does not have a parent either in the United States or Canada 
will be exempt from the Agreement as an ``unaccompanied minor,'' and 
will be permitted to pursue claims for asylum, withholding of removal, 
and protection under the Convention Against Torture before the 
immigration judge. However, a minor arriving from Canada who does have 
a parent either in the United States or in Canada will not be eligible 
for the exception as an unaccompanied minor under the terms of the 
Agreement (whether or not the alien may be considered an unaccompanied 
minor for other purposes under the immigration laws). Unless such an 
alien is able to satisfy one of the other exceptions under the 
Agreement--such as having a qualifying family member in the United 
States who either has been granted lawful status or has a pending 
asylum application--then the minor would not be eligible to apply for 
asylum, withholding of removal, or protection under the Convention 
Against Torture before the immigration judge. The immigration judge 
would consider applications for any other forms of relief for which the 
alien might be eligible and, if the alien is ultimately ordered 
removed, he or she would be returned to Canada in order to pursue 
claims for asylum or refugee protection under Canadian law.
    For example, if a 15-year-old asylum-seeker arrives at a United 
States/Canada land-border port-of-entry without other family members, 
DHS may choose to place the alien in removal proceedings according to 
its own policies. In the course of the removal proceedings, the 
immigration judge will first determine whether the minor has a parent 
or legal guardian in the United States or Canada, in order to determine 
whether the ``unaccompanied minor'' exception to the Agreement applies. 
If the minor does have a parent or legal guardian in the United States 
or Canada, the immigration judge will determine whether any of the 
other exceptions to the Agreement apply. For example, if the alien's 
parent is living in the United States, the minor would not be an 
``unaccompanied minor'' under the

[[Page 10631]]

Agreement, but the parent may be a qualifying relative if the parent 
either has been granted lawful status in the United States other than 
as a visitor or has a pending asylum application, as provided in other 
exceptions to the Agreement.
    An alien who is found to be ineligible to apply for asylum pursuant 
to section 208(a)(2)(A) of the Act and the bilateral Agreement with 
Canada will be removed to Canada to have all of his or her claims for 
protection adjudicated by Canadian authorities under Canadian law. 
Accordingly, this rule adds Sec.  1240.11(g)(4) to provide that an 
alien in removal proceedings who is subject to the Agreement is 
ineligible to apply for withholding of removal under section 241(b)(3) 
of the Act and the Convention Against Torture if it is determined that 
he or she is ineligible to apply for asylum based on the Agreement.
    Section 241(b)(3)(A) of the Act prohibits removal of an alien to a 
country where the alien's life or freedom would be threatened on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion. Similarly, Article 3 of the 
Convention Against Torture prohibits the return of an individual to 
another country where there are substantial grounds for believing that 
he or she would be subject to torture. These provisions, however, do 
not prevent the United States from removing an individual to any safe 
third country in which the person would not face the threat of 
persecution or torture.
    Like the United States, Canada is a signatory to the 1967 Protocol 
Relating to the Status of Refugees (``Protocol'') \1\ and the 
Convention against Torture. Article 3 of the bilateral Agreement with 
Canada provides that ``the Parties shall not return or remove a refugee 
status claimant referred by either Party under the terms of [the 
Agreement] to another country until an adjudication of the person's 
refugee status claim has been made.'' In Article 1, the Agreement 
defines a refugee status claim to include a request for protection 
consistent with the Protocol and the Convention Against Torture. 
Therefore, returning an individual to Canada pursuant to the terms of 
the Agreement is consistent with United States' obligations not to 
return an individual to a country where the person would face 
persecution or torture.
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    \1\ Section 241(b)(3) of the Act is based on Article 33 of the 
Protocol. See INS v Stevic, 467 U.S. 407, 421 (1984) (``Section 
203(e) of the Refugee Act of 1980 amended the language of Sec.  
243(h) [currently Sec.  241(b)(3) of the Act] basically conforming 
it to the language of Article 33 of the United Nations Protocol.'')
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Individuals Being Removed from Canada Who Seek Protection While in 
Transit Through the United States

    Pursuant to the Agreement, if a person is being removed from Canada 
in transit through the United States and expresses a fear of 
persecution or torture or an intention to apply for asylum, the person 
will be returned to Canada for Canadian authorities to determine the 
refugee status claim, in accordance with Canadian law. The inspection 
of an alien who falls into this category is explained in the 
supplementary information in the DHS proposed rule. Generally, an 
individual being removed from Canada in transit through the United 
States will be placed in expedited removal proceedings, though there 
may be some rare instances in which the individual will be placed in 
removal proceedings under section 240 of the Act. The DHS rule provides 
that such individuals will receive the same threshold screening by an 
asylum officer as an alien who seeks entry to the United States at a 
land border port-of-entry between Canada and the United States. 
However, the exceptions for unaccompanied minors, qualifying family 
members, and valid travel documents do not apply to an alien being 
removed from Canada in transit through the United States. Because the 
Agreement provides no exceptions to the obligation to return such alien 
to Canada, except for the public interest exception, and the public 
interest exception itself would not be within the authority of an 
immigration judge to consider in any event, there is essentially 
nothing for an immigration judge to review in this context and no 
purpose to be served by providing for such review. For those rare 
instances in which an alien being removed in transit through the United 
States is placed in removal proceedings pursuant to section 240 of the 
Act, the immigration judge will not consider any claims of asylum, 
withholding of removal, or protection under the Convention Against 
Torture (unless DHS files a written notice in the proceedings that it 
has decided it is in the public interest to allow the alien to pursue 
those claims in the United States), and after completion of the 
proceedings, if the alien is ordered removed, the alien will be 
returned to Canada. On the other hand, if DHS files a written notice in 
the proceedings that it is in the public interest to allow the alien to 
pursue protection claims in the United States, then the alien will 
pursue his or her claim for protection in the removal proceedings, and, 
if ordered removed, will be ordered removed to an appropriate country 
of removal.

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. This rule affects 
individual aliens, as it relates to claims of asylum. It does not 
affect small entities, as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 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 United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    The Attorney General has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and, accordingly, this rule has 
been submitted to the Office of Management and Budget for review. In 
particular, the Department has assessed both the costs and benefits of 
this rule as required by Executive Order 12866, section 1(b)(6) and has 
made a reasoned determination that the benefits of this regulation 
justify its costs.
    The proposed rule would implement a bilateral agreement that 
allocates responsibility between the United States and Canada for 
processing claims of certain asylum-seekers, enhancing the two nations' 
ability to manage, in an orderly fashion, asylum claims brought by 
persons crossing our common border. The rule applies to certain 
individuals

[[Page 10632]]

in removal proceedings who apply for asylum. This rule simply adds 
another factor for immigration judges to consider in removal 
proceedings. Therefore, the ``tangible'' costs of this rulemaking to 
the U.S. Government are minimal. Applicants who are found to be subject 
to the bilateral Agreement with Canada will be returned to Canada to 
seek asylum, saving the U.S. Government the cost of adjudicating their 
asylum claims.
    The cost to asylum-seekers who, under the proposed rule, will be 
returned to Canada are the costs of pursuing an asylum claim in Canada, 
as opposed to the United States. There is no fee to apply for asylum in 
Canada and, under Canadian law, asylum-seekers are provided social 
benefits that they are not eligible for in the United States. 
Therefore, the tangible costs of seeking asylum in Canada are no 
greater than they are in the United States. The ``intangible'' costs to 
asylum-seekers who would be returned to Canada under the proposed rule 
are the costs of potential separation from support networks they may be 
seeking to join in the United States. However, the Agreement contains 
broad exceptions based on principles of family unity that would 
generally allow those with family connections in the United States to 
seek asylum in the United States under existing regulations.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

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

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this proposed rule because there are no new 
or revised recordkeeping or reporting requirements.

Family Assessment Statement

    The Attorney General has reviewed this regulation and assessed this 
action in accordance with the criteria specified by section 654(c)(1) 
of the Treasury General Appropriations Act, 1999, Public Law 105-277, 
Div. A. The Attorney General has determined that it will not affect 
family well-being as that term is defined in section 654.
    The separate proposed rule published by the Department of Homeland 
Security explains that an alien arriving at a land border port-of-entry 
with Canada may qualify for an exception to the bilateral Agreement 
with Canada, which otherwise requires individuals to seek protection in 
the country of last presence (Canada), by establishing a relationship 
to a family member in the United States who has lawful status in the 
United States, other than a visitor, or is 18 years of age or older and 
has an asylum application pending. The DHS proposed rule addresses 
issues relating to family well-being in connection with that rule.
    This proposed rule provides that the immigration judges will apply 
the same administrative guidelines of ``family member'' in the DHS 
proposed rule, in those cases where DHS has chosen to place an alien 
who is subject to the Agreement into removal proceedings under section 
240 of the Act. However, that is expected to occur only very rarely. In 
any other case, where DHS does not choose to place an arriving alien 
into removal proceedings under section 240 of the Act, this rule has no 
effect on family well-being, because the immigration judges will not be 
involved.

List of Subjects

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and function (Government agencies).

8 CFR Part 1208

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

8 CFR Part 1212

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

8 CFR Part 1240

    Administrative practice and procedure and Aliens.
    Accordingly, chapter V of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 1003 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 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, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 
106-386; 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-
554, 114 Stat. 2763A-326 to -328.

    2. Section 1003.42 is amended by adding new paragraph (h) to read 
as follows:


Sec.  1003.42  Review of credible fear determinations.

* * * * *
    (h) Safe third country agreement--(1) Arriving alien. An 
immigration judge shall have no jurisdiction to review a determination 
by an asylum officer that an arriving alien is not eligible to apply 
for asylum pursuant to a bilateral or multilateral agreement (the 
agreement) under section 208(a)(2)(A) of the Act and should be returned 
to a safe third country to pursue his or her asylum claims under the 
laws of that country. See 8 CFR 208.30(e)(6).
    (2) Aliens in transit. An immigration judge has no jurisdiction to 
review any determination by DHS that an alien being removed from Canada 
in transit through the United States should be returned to Canada to 
pursue asylum claims under Canadian law, under the terms of a safe 
third country agreement with Canada.
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

    3. The authority citation for part 1208 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282.

    4. Section 1208.4 is amended by adding new paragraph (a)(6) to read 
as follows:


Sec.  1208.4  Filing the application.

* * * * *
    (a) * * *
    (6) Safe third country agreement. Immigration judges have authority 
to consider issues under section 208(a)(2)(A) of the Act, relating to 
the determination of whether an alien is ineligible to apply for asylum 
and should be removed to a safe third

[[Page 10633]]

country pursuant to a bilateral or multilateral agreement, only with 
respect to aliens whom DHS has chosen to place in removal proceedings 
under section 240 of the Act, as provided in 8 CFR 1240.11(g). For DHS 
regulations relating to determinations by asylum officers on this 
subject, see 8 CFR 208.30(e)(6).
* * * * *
    5. Section 1208.30 is amended by:
    a. Revising paragraphs (a) and (e); and by
    b. Removing and reserving paragraphs (c), (d), (f) and (g)(1).
    The revisions read as follows:


Sec.  1208.30  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.

    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B), asylum officers have exclusive jurisdiction to 
make credible fear determinations, and the immigration judges have 
exclusive jurisdiction to review such determinations.
* * * * *
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and in making positive 
and negative credible fear determinations, see 8 CFR 208.30(b), (c), 
(d), (e), (f), and (g)(1). The immigration judges will review such 
determinations as provided in paragraph (g)(2) of this section and 8 
CFR 1003.42.
* * * * *

PART 1212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    6. The authority citation for part 1212 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1103.

    7. Section 1212.5 is revised to read as follows:


Sec.  1212.5  Parole of aliens into the United States.

    Procedures and standards for the granting of parole by the 
Department of Homeland Security can be found at 8 CFR 212.5.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    8. The authority citation for part 1240 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; sec. 1101, Pub. L. 107-269, 116 Stat. 2135.

    9. Section 1240.11 is amended by adding a new paragraph (g), to 
read as follows:


Sec.  1240.11  Ancillary matters, applications.

* * * * *
    (g) Safe third country agreement. (1) The immigration judge has 
authority to apply section 208(a)(2)(A) of the Act, relating to a 
determination that an alien may be removed to a safe third country 
pursuant to a bilateral or multilateral agreement, in the case of an 
alien who is subject to the terms of the agreement and is placed in 
proceedings pursuant to section 240 of the Act without being processed 
under section 235 of the Act. In an appropriate case, the immigration 
judge shall determine whether under the Agreement the alien should be 
returned to the safe third country, or whether the alien should be 
permitted to pursue asylum or other protection claims in the United 
States.
    (2) An alien described in paragraph (g)(1) of this section is 
ineligible to apply for asylum, pursuant to section 208(a)(2)(A) of the 
Act, unless the immigration judge determines, by preponderance of the 
evidence, that:
    (i) The agreement does not apply to the alien or does not preclude 
the alien from applying for asylum in the United States; or
    (ii) The alien qualifies for an exception to the agreement as set 
forth in paragraph (g)(3) of this section.
    (3) The immigration judge shall apply the applicable regulations in 
deciding whether the alien qualifies for any exception under the 
agreement that would permit the United States to exercise authority 
over the alien's asylum claim. The exceptions under the agreement are 
codified at 8 CFR 208.30(e)(6)(iii). The immigration judge shall not 
review, consider, or decide any issues pertaining to any discretionary 
determination on whether the alien should be permitted to pursue an 
asylum claim in the United States notwithstanding the general terms of 
the agreement, as such discretionary public interest determinations are 
reserved to the Department of Homeland Security. However, an alien in 
removal proceedings who is otherwise ineligible to apply for asylum 
under the agreement may apply for asylum if the Department of Homeland 
Security files a written notice in the proceedings before the 
immigration judge that it has decided in the public interest to allow 
the alien to pursue claims for asylum or withholding of removal in the 
United States.
    (4) An alien who is found to be ineligible to apply for asylum 
under section 208(a)(2)(A) of the Act is ineligible to apply for 
withholding of removal pursuant to section 241(b)(3) of the Act and the 
Convention against Torture. However, the alien may apply for any other 
relief from removal for which the alien may be eligible. If an alien 
who is subject to section 208(a)(2)(A) of the Act is ordered removed, 
the alien shall be ordered removed to the safe third country in which 
the alien will be able to pursue his or her claims for asylum or 
protection under the laws of that country.

    Dated: March 1, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-5065 Filed 3-5-04; 8:45 am]
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