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khammond on DSKJM1Z7X2PROD with PROPOSALS2

Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules withholding of deferral or removal under CAT. The Departments also propose to amend 8 CFR 1003.1, 8 CFR
1003.12, 8 CFR 1208.2, and 8 CFR
1208.30 of the EOIR regulations, and to add a new section 8 CFR 1003.48, to make corresponding changes regarding how and when cases involving individuals found to have a credible fear would be referred by DHS to EOIR.
The proposed nonadversarial proceedings for further consideration of asylum applications by asylum officers would provide protections similar to those provided in section 240 removal proceedings. The asylum officers consideration under this proposal, however, would be limited solely to claims for asylum, statutory withholding of removal, and withholding or deferral of removal under the CAT regulations. 8 CFR
208.2a2 proposed. Under this proposed rule, if the asylum officer denies the noncitizen asylum, statutory withholding of removal, and protection under the CAT regulations, the noncitizen would be ordered removed based upon the immigration officers earlier inadmissibility determination under section 235b1Ai of the INA, 8 U.S.C. 1225b1Ai. The noncitizen, may, however appeal an adverse decision to an IJ, and if necessary, to the BIA. 8 CFR
208.14c5, 1003.1b15, 1208.2b.
To allow asylum officers to carry out this new responsibility fully, additional changes to the regulations have been proposed. First, the Departments propose that under 8 CFR 208.9f, asylum officers would be required to record the asylum hearing and that a transcript of that recording would be made part of the record whenever a noncitizen denied protection seeks review of a denial. USCIS would transcribe the asylum hearing recording and a copy of the transcript and the record developed at the hearing would be served on the applicant and filed with the immigration court. The hearing would be transcribed prior to the record being referred for review. Second, the Departments propose that USCIS be required to provide an interpreter for any hearing, just as EOIR is required to do for a removal hearing. 8 CFR 208.9g proposed. Third, as in section 240
removal proceedings, the Departments propose that the noncitizen would be entitled to be represented, at no expense to the Government, by counsel of the noncitizens choosing who is authorized to practice in such proceedings. See id.
1003.12 proposed, 1003.16 current;
cf. 8 U.S.C. 1229ab4.
The Departments propose that the failure to appear rule at 8 CFR 208.10

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be revised to allow for an order of removal to be issued when the noncitizen fails to appear for the scheduled hearing with the asylum officer. Changes to 8 CFR 208.16
through 208.19 also are proposed in order to provide asylum officers authority to adjudicate claims for withholding of removal under section 241b3 of the INA, 8 U.S.C. 1231b3, and withholding and deferral of removal under the regulations implementing the CAT. Existing 8 CFR 208.14b already provides USCIS the authority to grant an asylum application properly within USCISs jurisdiction, including the jurisdiction given USCIS by this proposed rule over asylum applications from noncitizens determined to have a credible fear. Similar authority is provided for immigration judges in existing 8 CFR 1208.14. Finally, the Departments propose that 8 CFR
208.14c5 be added to provide the process for USCIS to deny an application for asylum, including the issuance of a decision on withholding and deferral of removal if asylum is denied; the issuance of an order of removal by the asylum officer after the merits hearing; and the process for the applicant to seek review of an asylum denial before an IJ. Review of these decisions would be governed by proposed 8 CFR 1003.48. The Departments also propose technical edits to 8 CFR 208.22 to include references to corresponding sections of both 8 CFR part 208 and 8 CFR part 1208. The Departments seek comments on all aspects of these proposed changes, including whether different or additional decision and review procedures should apply to applications considered under this proposed process.
The authority of asylum officers to enter an order of removal after denying a noncitizens asylum claim follows from the relevant provisions of the INA.
By definition, noncitizens who are placed into expedited removal already have been determined to be inadmissible and are protected from immediate removal only because their credible fear of persecution entitled them to further consideration of their asylum claim. See INA 235b1, 8
U.S.C. 1225b1. If, after that further consideration, an asylum officer concludes that a noncitizen is not entitled to asylum, that determination removes the only remaining legal barrier to removal. That determination qualifies as an order of removal under the relevant statutory definition, which provides that an order of deportation includes not only an order ordering deportation, but also an order
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concluding that a noncitizen is deportable. INA 101a47A, 8 U.S.C.
110147A. The Seventh Circuit reached the same conclusion in addressing another class of noncitizens whose only defense to removal is a potential asylum claim: Those who entered under the visa-waiver program, INA 217b2, 8 U.S.C. 1187b2. The court explained that an order denying such a noncitizens asylum claim is an order of removal because an order that is proper only if the noncitizen is removable implies an order of removal.
Mitondo v. Mukasey, 523 F.3d 784, 787
7th Cir. 2008. This proposed rule therefore would provide that if the noncitizen is not granted asylum at the conclusion of the asylum hearing, the asylum officer is authorized to issue an order of removal.
E. Application Review Proceedings Before the Immigration Judge Proposed 8 CFR 1208.2c, 1003.48
The Departments propose to amend 8
CFR 1208.2c and add 8 CFR 1003.48
to establish new IJ review proceedings for those noncitizens who establish a credible fear of persecution or torture but 1 were found by USCIS not to merit asylum, statutory withholding of removal, or protection under the CAT
and its implementing regulations; and 2 affirmatively request further review of their applications by an IJ. The Departments propose that upon a referral of the case from USCIS, the IJ
would conduct a de novo review of USCISs denial of the claims.
Under these proposed limited review proceedings, unlike under section 240
of the INA, 8 U.S.C. 1229a, the IJ would not have authority to consider issues related to a noncitizens removability or a noncitizens eligibility for any other relief from removal. Moreover, an IJ
ordinarily would not conduct an evidentiary hearing on the noncitizens asylum application. Rather, the IJ would determine, after de novo review of the full record of proceedings created during asylum officer hearings and consideration of any additional testimony or evidence permitted under the proposed process described below, whether a noncitizen is eligible for asylum or withholding of removal under the Act or withholding or deferral of removal under the CAT. Although the Departments intend these proceedings to be more streamlined than section 240
removal proceedings, asylum officer and IJ review, together, would provide significant protections to ensure that these noncitizens continue to receive full and fair adjudication of their applications.

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