[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Rules and Regulations]
[Pages 23329-23330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07966]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2720-22; DHS Docket No. USCIS-2023-0003]
RIN 1615-AC84

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1240

[EOIR No. 23-0010; AG Order No. 5632-2023]
RIN 1125-AB29


Implementation of the 2022 Additional Protocol to the 2002 U.S.-
Canada Agreement for Cooperation in the Examination of Refugee Status 
Claims From Nationals of Third Countries; Correction

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; Executive Office for Immigration Review, Department 
of Justice.

ACTION: Final rule; correction and correcting amendment.

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SUMMARY: The Department of Justice (``DOJ'') and the Department of 
Homeland Security (``DHS'') (``collectively, ``the Departments'') are 
correcting inadvertent errors and omissions in the preamble and the 
amendatory language of the final rule titled ``Implementation of the 
2022 Additional Protocol to the 2002 U.S.-Canada Agreement for 
Cooperation in the Examination of Refugee Status Claims from Nationals 
of Third Countries'' published in the Federal Register on March 28, 
2023.

DATES: This correction is effective April 17, 2023, and is applicable 
beginning at 12:01 a.m. on Saturday, March 25, 2023.

FOR FURTHER INFORMATION CONTACT: For U.S. Citizenship and Immigration 
Services: Ren[aacute] Cutlip-Mason, Chief, Division of Humanitarian 
Affairs, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 5900 Capital 
Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000 
(not a toll-free call).
    For Executive Office of Immigration Review: Lauren Alder Reid, 
Assistant Director, Office of Policy, Executive Office for Immigration 
Review, Department of Justice, 5107 Leesburg Pike, Suite 1800, Falls 
Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

Need for Correction

    On March 28, 2023, the Departments published a final rule in the 
Federal Register at 88 FR 18227 to implement the Additional Protocol to 
the Agreement between The Government of the United States of America 
and The Government of Canada For Cooperation in the Examination of 
Refugee Status Claims From Nationals of Third Countries (``Additional 
Protocol of 2022'') negotiated by the Governments of the United States 
and Canada, and signed in Ottawa, Ontario, Canada, on March 29, 2022, 
and in Washington, DC, United States, on April 15, 2022, 
respectively.\1\ The Additional Protocol of 2022 supplements certain 
terms of the December 5, 2002 Agreement between The Government of the 
United States and The Government of Canada For Cooperation in the 
Examination of Refugee Status Claims from Nationals of Third Countries 
(``Safe Third Country Agreement,'' ``STCA'').\2\ This document corrects 
inadvertent errors and omissions in the final rule published on March 
28, 2023.
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    \1\ See 88 FR 18227.
    \2\ See id.
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    In the final rule, DHS amended 8 CFR 208.30(e)(7) to clarify that 
the STCA includes the Additional Protocol of 2022.\3\ The regulations 
at 8 CFR 208.30(e)(7) consists of paragraph (e)(7) introductory text 
paragraphs (e)(7)(i) through (iv). DHS intended to revise only the 
introductory text of paragraph (e)(7) of 8 CFR 208.30 and to leave 
paragraphs (e)(7)(i) through (iv) intact. However, through its 
instructions, DHS inadvertently removed paragraphs (e)(7)(i) through 
(iv) of Sec.  208.30. This document corrects this error and the 
amendatory language to ensure that these paragraphs remain in the Code 
of Federal Regulations (``CFR''). DHS makes no additional changes to 8 
CFR 208.30(e)(7) with this correction.
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    \3\ See 88 FR 18227 at 18232-33, 18234-35.
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    Additionally, in the final rule, DOJ amended 8 CFR 1003.42(h). DOJ 
revised paragraphs (h)(1) and (2) by making conforming amendments, 
including amendments to clarify that any determination under the STCA 
includes the Additional Protocol of 2022.\4\ The regulatory text also 
indicated a change in the heading of paragraph (h)--i.e., changing 
``Asylum cooperative agreement-'' to ``Safe Third Country Agreement--
''.\5\ That change was inadvertent, as reflected by the fact that DOJ 
omitted any reference to changing

[[Page 23330]]

the paragraph (h) heading in the associated amendatory text.\6\ 
Further, because DOJ did not include a change to the paragraph (h) 
heading in the amendatory text, the current text of the CFR retains the 
original wording--i.e., ``Asylum Cooperative Agreement--''. Because the 
current CFR text uses the correct heading, DOJ is not altering the 
paragraph (h) heading with this document. DOJ now clarifies, however, 
that no change in the paragraph (h) heading was intended by the 
publication of the rule at 88 FR 18227 or the inadvertent use of the 
phrase ``Safe Third Country Agreement--'' at 88 FR 18240.
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    \4\ See 88 FR at 18233 and 18235.
    \5\ See 88 FR at 18240.
    \6\ See id.
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    Finally, the Departments are correcting the omission of a reference 
to the CFR in a citation in the preamble at 88 FR 18232 n.43.

Corrections

Preamble Correction

    In FR Doc. 2023-06351, appearing on page 18227 in the March 28, 
2023, issue of the Federal Register, the following correction is made:
    1. On page 18232, in the third column in footnote 43, revise the 
last sentence (the citation sentence) to read as follows: ``See 8 CFR 
1240.11(h)(1) (revised).''

CFR Correction

List of Subjects in 8 CFR Part 208

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

    For reasons stated in the preamble, the Department of Homeland 
Security amends 8 CFR part 208 with the following correcting amendment:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. In Sec.  208.30, add paragraphs (e)(7)(i) through (iv) 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.

* * * * *
    (e) * * *
    (7) * * *
    (i)(A) If the asylum officer, with concurrence from a supervisory 
asylum officer, determines during the threshold screening interview 
that an alien does not qualify for an exception under the applicable 
agreement, and, if applicable, that the alien has not demonstrated that 
it is more likely than not that he or she would be persecuted on 
account of a protected ground or tortured in the receiving country, the 
alien is ineligible to apply for asylum in the United States. Subject 
to paragraph (e)(7)(i)(B) of this section, after the asylum officer's 
documented finding is reviewed by a supervisory asylum officer, the 
alien shall be advised that he or she will be removed to the receiving 
country, as appropriate under the applicable agreement, in order to 
pursue his or her claims relating to a fear of persecution or torture 
under the law of the receiving country. Prior to removal to a receiving 
country under an agreement authorized by section 208(a)(2)(A), the 
alien shall be informed that, in the receiving country, the alien will 
have an opportunity to pursue the alien's claim for asylum or 
equivalent temporary protection.
    (B) Aliens found ineligible to apply for asylum under this 
paragraph (e)(7) shall be removed to the receiving country, depending 
on the applicable agreement, unless the alien voluntarily withdraws his 
or her request for asylum.
    (ii) If the alien establishes by a preponderance of the evidence 
that he or she qualifies for an exception under the terms of the 
applicable agreement, or would more likely than not be persecuted on 
account of his or her race, religion, nationality, membership in a 
particular social group, or tortured, in the receiving country, the 
asylum officer shall make a written notation to that effect, and may 
then proceed to determine whether any other agreement is applicable to 
the alien under the procedures set forth in this paragraph (e)(7). If 
the alien establishes by a preponderance of the evidence that he or she 
qualifies for an exception under the terms of each of the applicable 
agreements, or would more likely than not be persecuted on account of 
his or her race, religion, nationality, membership in a particular 
social group, or tortured, in each of the prospective receiving 
countries, the asylum officer shall make a written notation to that 
effect, and then proceed immediately to a determination concerning 
whether the alien has a credible fear of persecution, reasonable 
possibility of persecution, or a reasonable possibility of torture, 
under paragraph (d) of this section.
    (iii) An exception to an applicable agreement is defined under the 
terms of the agreement itself. Each agreement, including any 
exceptions, will be announced in a Federal Register document. If the 
asylum officer determines that an alien is within one of the classes 
covered by a section 208(a)(2)(A) agreement, the officer shall next 
determine whether the alien meets any of the applicable agreement's 
exceptions. Regardless of whether the text of the applicable agreement 
provides for the following exceptions, all such agreements, by 
operation of section 208(a)(2)(A) of the Act, and as applicable to the 
United States, are deemed to contain the following provisions:
    (A) No alien may be removed, pursuant to an agreement authorized by 
section 208(a)(2)(A), to the alien's country of nationality, or, if the 
alien has no nationality, to the alien's country of last habitual 
residence; and
    (B) No alien may be removed, pursuant to an agreement authorized by 
section 208(a)(2)(A), where the Director of USCIS, or the Director's 
designee, determines, in the exercise of unreviewable discretion, that 
it is in the public interest for the alien to receive asylum in the 
United States, and that the alien therefore may apply for asylum, 
withholding of removal, or protection under the Convention Against 
Torture, in the United States.
    (iv) If the asylum officer determines the alien meets an exception 
under the applicable agreement, or would more likely than not be 
persecuted on account of a protected ground or tortured in the 
prospective receiving country, the officer may consider whether the 
alien is subject to another agreement and its exceptions or would more 
likely than not be persecuted on account of a protected ground or 
tortured in another receiving country. If another section 208(a)(2)(A) 
agreement may not be applied to the alien, the officer should 
immediately proceed to a credible fear interview.
* * * * *

Christina E. McDonald,
Associate General Counsel for Regulatory Affairs, U.S. Department of 
Homeland Security.

    Dated: April 11, 2023.
Rosemary Hart,
Special Counsel, U.S. Department of Justice.
[FR Doc. 2023-07966 Filed 4-14-23; 8:45 am]
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