Quiero saber acerca de...

khammond on DSKJM1Z7X2PROD with PROPOSALS2

46920

Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
For noncitizens who affirmatively request further review by an IJ, the Departments propose that DHS would initiate the review proceedings through the service of a Form I863, Notice of Referral to Immigration Judge, on the noncitizen. As proposed in 8 CFR
1003.48b, DHS would file the following items with the immigration court: 1 A copy of the Notice of Referral; 2 a copy of the record of proceedings before the asylum officer, as outlined in 8 CFR 208.9f; 3 the asylum officers written decision, including the removal order issued under 8 CFR 208.14c5 by the asylum officer; and 4 proof that DHS served the Notice of Referral, the record of proceedings, and the asylum officers written decision, including the removal order, on the noncitizen. Unlike in credible fear determination reviews, where the IJ is provided only asylum officers notes from the interview, the summary of the material facts, and other limited records, see, e.g., 8 CFR
208.30e4, the proposed requirements in 8 CFR 1003.48b would ensure that cases would only be referred to the immigration courts following asylum officers full nonadversarial adjudication of the noncitizens applications, and that IJs and noncitizens would have asylum officers decisions and complete records of the hearings in advance of the IJ review.
This would allow the noncitizen to have notice of the reasons for the asylum officers denial in advance of the immigration court review process, and it would allow the IJ to conduct a thorough review of the asylum officers decision based on the application and complete record developed before the asylum officer. Accordingly, because the IJ would be provided the complete record of proceedings from the asylum officer hearing, the Departments expect that the IJ generally would be able to complete the de novo review solely on the basis of the record before the asylum officer, taking into consideration any arguments raised by the noncitizen, or the noncitizens counsel, and DHS.
That said, the proposed rule recognizes that the factual record as elicited by the asylum officer sometimes will need to be further developed before the IJ. The rule proposes at 8 CFR
1003.48e that an IJ does not have the authority to remand a case to an asylum officer because the Departments believe that this would be unnecessary and inefficient. Instead, the rule proposes that a party may seek to introduce additional testimony or documentation so long as the party demonstrates to the IJ that the testimony or documentation
VerDate Sep<11>2014

17:46 Aug 19, 2021

Jkt 253001

is not duplicative of the testimony or documentation considered by the asylum officer and that it is necessary to develop the factual record to allow the IJ to issue a reasoned decision in the case. The Departments expect that an IJ
may, in appropriate cases, require parties to submit prehearing statements or briefs concerning whether they will seek to introduce additional testimony or documentation and, if so, explaining why this testimony or documentation meets the standard at 8 CFR 1003.48e.
The Departments further expect that, where necessary, for example in cases involving pro se applicants, IJs will, before proceeding with the case, explain in court the standards for submitting additional testimony and documentation. This proposed provision would ensure a full and fair evaluation of the applicants application for asylum, withholding of removal under the Act, or withholding or deferral of removal under the CAT.
The Departments believe that this proposed regulatory schemeunder which IJs typically would rely on the record created at the asylum officer hearing but could allow additional testimony and evidence if a party establishes that doing so is necessary is the best way to balance efficiency and fairness considerations appropriately.56
The Departments believe that these proceedings, as proposed, will be more streamlined than removal proceedings but will still provide the parties with a fair opportunity to present their cases.
Nevertheless, the Departments understand that there are alternative threshold standards for the introduction of evidence or the reopening of proceedings.57 Accordingly, the Departments request the publics comments on the proposed evidentiary threshold requirements, including any suggestions for alternatives that balance efficiency and fairness considerations, particularly taking into account challenges pro se applicants for asylum and related protection sometimes face in developing their claims.
To ensure that noncitizens have a full and fair opportunity to prepare for and receive review of their claims, the Departments propose that many of the procedural safeguards that apply in 56 See, e.g., INS v. Abudu, 485 U.S. 94, 107 1988
There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases..
57 See, e.g., Matter of Coelho, 20 I&N Dec. 464, 473 BIA 1992 providing that the moving party generally must demonstrate that new evidence offered would likely change the result in the case in order for the BIA to consider granting a discretionary motion to remand.

PO 00000

Frm 00016

Fmt 4701

Sfmt 4702

section 240 removal proceedings would apply to the IJ review proceedings as well. Unless specifically indicated in 8
CFR 1003.48 of the EOIR proposed rules, the general rules of procedure that apply in removal proceedings before the immigration courts also would apply to these proceedings. This would include a noncitizens rights 1 to obtain representation by an attorney or other representative authorized to appear before the immigration court, at no cost to the Government, see 8 CFR
1003.16b; 2 to seek a change of venue, see id. 1003.20b; and 3 to seek a continuance for good cause shown, see id. 1003.29. Moreover, the provisions of 8 CFR 1003.2 and 1003.23
governing motions to reopen and reconsider generally would be applicable to decisions rendered by IJs or the BIA in these proceedings. The Departments also propose to add a cross-reference in 8 CFR 1003.12 to the new proceedings under 8 CFR 1003.48
to codify these procedural protections.
The rule further proposes at 8 CFR
1003.48d that the IJ would have the discretion, pursuant to a motion filed by an applicant, to vacate the asylum officers order of removal. For the motion to be granted, the applicant would have to show that he or she is prima facie eligible for a form of relief that cannot be granted in proceedings under 8 CFR 1003.48. With the motion granted, DHS would have the discretion to place the applicant in removal proceedings. An applicant would be permitted to file only one such motion, the motion would have to be filed before the IJ issues a decision on the applications for asylum and related protection, and motions to apply for voluntary departure would not be granted. The Departments believe these limitations are appropriate given the goal of meaningfully streamlining these proceedings as compared with removal proceedings. That said, the Departments seek the publics comments on whether the provisions relating to motions to vacate removal orders appropriately balance fairness and efficiency considerations.
In these proposed proceedings, the IJ
would have the authority to review all decisions issued by the asylum officer, upon request by the applicant. See 8
CFR 1003.48a proposed. For example, if the asylum officer denies an applicants application for asylum but grants the applicants application for withholding of removal under the Act, and the applicant requests review by an IJ, the IJ would have the authority to review not only the denial of asylum but also the grant of withholding of removal as well. In these mixed cases, the
E:FRFM20AUP2.SGM

20AUP2