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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules Referral is filed with the immigration court, the case shall be scheduled for a hearing, and a hearing notice shall be served on the parties.
d Motion to vacate removal order.
The applicant may file a motion with the immigration judge to vacate the asylum officers order of removal. For the motion to be granted, the applicant must show that he or she is prima facie eligible for a form of relief or protection under the Act that cannot be considered in proceedings under this section. If the applicant makes such a showing, the immigration judge may, in the exercise of his or her discretion, grant the motion. If the immigration judge grants the motion, DHS may, in the exercise of its discretion, place the applicant in removal proceedings, by issuing a Notice to Appear and filing it with the immigration court. An applicant may file only one such a motion, and the motion must be filed before the immigration judge issues a decision under paragraph e of this section. A
motion to vacate to apply for voluntary departure under section 240B of the Act shall be denied.
e Immigration judge review. 1 The immigration judge shall determine, de novo, whether the applicant qualifies for the relief or protection at issue and, if applicable, whether the applicant merits relief in the exercise of discretion. In reaching a decision in proceedings under this section, the immigration judge shall review the record created before the asylum officer, as well as the asylum officers decision.
Either party may provide additional testimony and documentation, but the party must establish that the testimony or documentation is not duplicative of testimony or documentation already presented to the asylum officer, and that the testimony or documentation is necessary to ensure a sufficient factual record upon which to base a reasoned decision on the application or applications. The immigration judge shall not have the authority to remand the case to the asylum officer.
2 If the immigration judge grants the applicant asylum under section 208 of the Act, the immigration judge shall issue orders granting the application and vacating the removal order issued by an asylum officer under 8 CFR
208.14c5. If the immigration judge grants the application for withholding of removal under section 241b3 of the Act, or withholding or deferral of removal under the Convention Against Torture, the immigration judge shall issue an order granting the application at issue, but shall not vacate the removal order issued by the asylum officer under 8 CFR 208.14c5.

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f Failure to appear. 1 If the applicant fails to appear at a hearing in proceedings conducted under this section, and DHS establishes by clear, unequivocal, and convincing evidence that written notice of the hearing was served on the applicant, the immigration judge shall deny the application or applications under review. There is no appeal from an immigration judges decision denying an application or applications for failure to appear. However, following such a decision, the applicant may file a motion to reopen with the immigration judge. In the motion, the applicant must establish that:
i The failure to appear was because of exceptional circumstances such as battery or extreme cruelty to the applicant or any child or parent of the applicant, serious illness of the applicant, or serious illness or death of the spouse, child, or parent of the applicant, but not including less compelling circumstances beyond the control of the applicant;
ii The applicant did not receive notice of the hearing; or iii The applicant was in Federal or State custody at the time of the hearing, and the failure to appear was through no fault of the applicant.
2 A motion filed under paragraph f1i of this section must be filed within 180 days of the hearing. A
motion filed under paragraph f1ii or iii of this section may be filed at any time. When a motion under this paragraph f is granted, the applicants proceedings under this section are reopened. The granting of such a motion does not entitle the applicant to be placed in removal proceedings.
PART 1208PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
21. The authority section for part 1208
continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110
229; Pub. L. 115218.

22. Amend 1208.2 by:
a. Revising paragraph a;
b. Revising the last sentence of paragraph b;
c. Removing the word or at the end of paragraph c1vii;
d. Removing the period at the end of paragraph c1viii and adding ; or in its place;
e. Removing and reserving paragraph c1ix;
f. Adding paragraph c1x; and g. In paragraph c3i:

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i. Adding the words and in 8 CFR
1003.48 after the words Except as provided in this section; and ii. Removing paragraph c1 or c2 and adding paragraph c1 or 2 in its place.
The revisions and addition read as follows:

1208.2

Jurisdiction.

a U.S. Citizenship and Immigration Services USCIS. 1 Except as provided in paragraph b or c of this section, USCIS shall have initial jurisdiction over:
i An asylum application filed by an alien physically present in the United States or seeking admission at a port-ofentry; and ii Hearings provided in accordance with section 235b1Bii of the Act to further consider the application for asylum of an alien, other than a stowaway, found to have a credible fear of persecution or torture in accordance with 8 CFR 208.30f and retained by USCIS, or referred to USCIS by an immigration judge pursuant to 1003.42 of this chapter and 1208.30
after the immigration judge has vacated a negative credible fear determination.
Hearings to further consider applications for asylum under this paragraph a1ii are governed by the procedures provided for under 8 CFR
208.9. Further consideration of an asylum application filed by a stowaway who has received a positive credible fear determination will be under the jurisdiction of an immigration judge pursuant to paragraph c of this section.
2 USCIS shall also have initial jurisdiction over credible fear determinations under 8 CFR 208.30 and reasonable fear determinations under 8
CFR 208.31.
b Immigration judges shall also have the authority to review credible fear determinations referred to the Immigration Court under 1208.30, reasonable fear determinations referred to the Immigration Court under 1208.31, and asylum officers decisions on applications, under 8 CFR
208.14c5, referred to the Immigration Court for review under 1003.48 of this chapter.
c
1
x An alien referred for proceedings under 1003.48 of this chapter on or after effective date of the final rule.

23. Amend 1208.3 by revising paragraphs a and c3 to read as follows:

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20AUP2