[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Rules and Regulations]
[Pages 15367-15369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7051]


U.S. Citizenship and Immigration Services

8 CFR Part 208

[CIS No. 2440-08; DHS Docket No. USCIS 2008-0022]
RIN 1615-AB59

Forwarding of Affirmative Asylum Applications to the Department 
of State

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.


SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations to alter the process by which it forwards Form I-589, 
Application for Asylum and Withholding of Removal, for asylum 
applications filed affirmatively with U.S. Citizenship and Immigration 
Services (USCIS) to the Department of State (DOS). The affirmative 
asylum process allows individuals, who are physically present in the 
United States, regardless of their manner of arrival and regardless of 
their current immigration status, to apply for asylum. The current 
regulation requires USCIS (formerly Immigration and Naturalization 
Service (INS)) to forward to DOS a copy of each completed asylum 
application it receives. This rule provides that USCIS will no longer 
forward all affirmative asylum applications to DOS. Instead, USCIS will 
send affirmative asylum applications to DOS only when USCIS believes 
DOS may have country conditions information relevant to the case. This 
change will increase the efficiency of DOS' review of asylum 
applications. Additionally, in accordance with the Homeland Security 
Act, this rule revises references to legacy INS in 8 CFR 208.11.

DATES: Effective date: This final rule is effective April 6, 2009.
    Comment date: Written comments must be submitted on or before June 
5, 2009 in order to be assured of consideration.

ADDRESSES: The public may submit comments, identified by DHS Docket No. 
USCIS-2008-0022, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 

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Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure 
proper handling, please reference DHS Docket No. USCIS-2008-0022 on the 
correspondence. This mailing address may be used for paper, disk, or 
CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202) 

FOR FURTHER INFORMATION CONTACT: Jedidah M. Hussey, Deputy Chief, 
Asylum Division, Refugee, Asylum, and International Operations 
Directorate, U.S. Citizenship and Immigration Services, 20 
Massachusetts Avenue, NW., Third Floor, Washington, DC 20529; Telephone 
(202) 272-1614.


I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
final rule. USCIS also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this final 
rule. Comments that will provide the most assistance to USCIS in 
developing these procedures will reference a specific portion of the 
final rule, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.
     Instructions: All submissions received should include the 
agency name and DHS Docket No. USCIS-2008-0022 for this rulemaking. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov. 
Submitted comments may also be inspected at the Regulatory Management 
Division, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, 
Washington, DC 20529.

II. Background

    DHS regulations, at 8 CFR 208.11(a), currently state, ``[T]he 
Service shall forward to the Department of State a copy of each 
completed application it receives. At its option, the Department of 
State may provide detailed country conditions information relevant to 
eligibility for asylum or withholding of removal.'' Under the 
affirmative asylum application process, USCIS receives asylum 
applications filed by applicants who are not in removal proceedings at 
its service centers. Upon receipt of an asylum application, service 
center personnel review the asylum application to confirm that the 
application is properly filed and complete, after which the service 
center forwards the application to one of the Asylum Division's eight 
field asylum offices for adjudication by an asylum officer. 
Simultaneously, the service center forwards a copy of the asylum 
application to DOS's Bureau of Democracy, Human Rights and Labor (DRL). 
However, when an asylum applicant is permitted to file an asylum 
application directly with an Asylum Office, the Asylum Office is 
responsible for forwarding a copy of the application to DRL.
    In fiscal year 2007, USCIS received 25,680 affirmative asylum 
applications and forwarded a copy of each to DOS. DOS and USCIS have 
determined that the current forwarding process is not an efficient 
method for the agencies to identify and review cases for which DOS 
review would yield the most value. To address this problem, this rule 
permits USCIS, in its discretion, to send affirmative asylum 
applications to DOS in those cases where USCIS believes DOS would be 
likely to have information relevant to the applicant's eligibility for 
asylum and withholding of removal. Generally, this would be information 
that is not otherwise available or confirmation of publicly available 
information, where such validation would be helpful to the 
    Additionally, USCIS and DOS have already implemented an arrangement 
in which USCIS's Asylum Division headquarters (HQASM) forwards certain 
applications to DRL for review and comment. USCIS requires all Asylum 
Offices to send specific categories of cases to HQASM for further 
review after the Asylum Office completes its initial interview and 
preliminary assessment of eligibility. HQASM reviews these cases for 
quality assurance purposes to ensure that eligibility standards are 
properly applied. In conducting the quality assurance review, an asylum 
officer at HQASM seeks DRL comments if the asylum officer believes that 
DRL could provide information specific to the applicant or the 
applicant's situation. This process has proven to be a productive 
system by which USCIS obtains country conditions information on 
specific cases. USCIS and DOS intend to maintain this system, which has 
been in place for several years.
    DRL applies its country conditions expertise to asylum matters in a 
variety of ways, which as a whole are referred to as DRL's asylum 
function. Consistent with the regulation currently at 8 CFR 208.11(c), 
and as will be retained in the amended regulation, DRL responds to 
requests for comments on cases specifically brought to its attention by 
USCIS's Asylum Division and by the Department of Justice (DOJ), 
Executive Office for Immigration Review (EOIR) immigration judges. DRL 
also produces updated issue papers or ``country profiles'' for use in 
asylum adjudications, and it responds to certain DHS, U.S. Immigration 
and Customs Enforcement's requests for document verification in asylum 
cases before EOIR. Additionally, DRL is required to provide to Congress 
annually Country Reports on Human Rights Practices and International 
Religious Freedom Reports which provide country conditions information 
that will continue to be useful to the adjudication of asylum 
applications. This rule will not alter these DRL functions. This rule 
also does not affect how USCIS reviews and considers these DRL 
published reports in asylum adjudications. USCIS will continue to 
review the aforementioned reports, which provide country conditions 
information useful to the adjudication of asylum applications.
    Finally, this rule is limited to 8 CFR 208.11. This rule only 
addresses submissions of affirmative asylum applications from USCIS to 
DOS. It does not make any amendments to 8 CFR 1208.11, which governs 
the defensive application procedure for asylum applications filed by 
individuals in removal proceedings before EOIR.

II. Regulatory Requirements

A. Administrative Procedures Act

    This rule addresses requirements that are procedural in nature and 
does not alter the substantive rights of applicants or petitioners for 
immigration benefits. Accordingly, this rule is exempt from the notice 
and comment requirements under the Administrative Procedures Act (APA) 
at 5 U.S.C. 553(b)(A). This rule does not change the eligibility rules 
governing any immigration benefit and it will not confer rights or 
obligations upon any party. Accordingly, USCIS is implementing these 
amendments effective immediately upon publication in the Federal 
Register. Nonetheless, DHS believes that public comments may be 
valuable and is providing the public the opportunity to make comments 
on this change as a matter of discretion. Comments are welcome about 
the relationship between the USCIS and

[[Page 15369]]

DOS, DHS and DOS, and the role of foreign policy considerations in 
asylum adjudications.

B. Regulatory Flexibility Act

    Because USCIS is not required by the APA to publish a notice of 
proposed rulemaking to make the changes promulgated in this rule, the 
Regulatory Flexibility Act (RFA) is not applicable.

C. 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 

D. 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 Fairness 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.

E. Executive Order 12866

    This rule has been designated as not significant under Executive 
Order 12866, section 3(f), Regulatory Planning and Review. Thus it has 
not been reviewed by the Office of Management and Budget.

F. Executive Order 13132: Federalism

    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.

G. 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.

H. Paperwork Reduction Act

    The information collection requirement (Form I-589) contained in 
this rule has been previously approved by the Office of Management and 
Budget under the provisions of the Paperwork Reduction Act. The OMB 
control numbers for these collections are contained in 8 CFR 299.5, 
Display of control numbers. This rule does not contain a new or revised 
information collection.

List of Subjects in 8 CFR Part 208

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

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


1. The authority citation for part 208 continues to read:

    Authority:  8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

2. Section 208.11 is revised to read as follows:

Sec.  208.11   Comments from the Department of State.

    (a) U.S. Citizenship and Immigration Services (USCIS) may request, 
at its discretion, specific comments from the Department of State 
regarding individual cases or types of claims under consideration, or 
such other information as USCIS deems appropriate.
    (b) With respect to any asylum application, the Department of State 
may provide, at its discretion, to USCIS:
    (1) Detailed country conditions information relevant to eligibility 
for asylum or withholding of removal;
    (2) An assessment of the accuracy of the applicant's assertions 
about conditions in his or her country of nationality or habitual 
residence and his or her particular situation;
    (3) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in the applicant's country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
    (4) Such other information as it deems relevant.
    (c) Any comments received pursuant to paragraph (b) of this section 
shall be made part of the record. Unless the comments are classified 
under the applicable Executive Order, the applicant shall be provided 
an opportunity to review and respond to such comments prior to the 
issuance of any decision to deny the application.

Janet Napolitano,
[FR Doc. E9-7051 Filed 4-3-09; 8:45 am]