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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules c Denial, referral, or dismissal by an asylum officer. If the asylum officer does not grant asylum to an applicant after an interview or hearing conducted in accordance with 208.9, or if, as provided in 208.10, the applicant is deemed to have waived his or her right to an interview, a hearing, or an adjudication by an asylum officer, the asylum officer shall deny, refer, or dismiss the application as follows:
1 Inadmissible or deportable aliens.
Except as provided in paragraph c4
or 5 of this section, in the case of an applicant who appears to be inadmissible or deportable under section 212a or 237a of the Act, the asylum officer shall refer the application to an immigration judge, together with the appropriate charging document, for adjudication in removal proceedings or, where charging documents may not be issued, shall dismiss the application.

5 Alien referred for consideration of asylum application in a hearing before an asylum officer after positive credible fear finding. In the case of an application within the jurisdiction of USCIS pursuant to 208.2a1ii, the asylum officer shall deny the application for asylum. The applicant will be provided a written notice of the decision. The decision will also include an order of removal based on the immigration officers inadmissibility determination under section 235b1Ai of the Act and a decision on any request for withholding of removal under 208.16d and deferral of removal under 208.17, where applicable. The notice shall explain that the alien may seek to have an immigration judge review the decision, in accordance with 8 CFR 1003.48. The alien shall have 30 days to affirmatively request such review as directed on the decision notice. The failure to timely request further review will be processed as the aliens decision not to request review.
i If the alien requests such immigration judge review, USCIS will serve the alien with a notice of referral to an immigration judge for review of the asylum application. USCIS shall provide the record of the proceedings before the asylum officer, as outlined in 208.9f, to the immigration judge and the alien, along with the written notice of decision, including the order of removal issued by the asylum officer, and the aliens request for review.
ii If the alien does not request a review by an immigration judge, the decision and order of removal will be final and the alien shall be subject to removal from the United States.

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iii Once USCIS has commenced proceedings under 8 CFR 1003.48 by filing the notice of referral, the immigration judge has sole jurisdiction to review the application and an asylum officer may not reopen or reconsider the application once it has been referred to the immigration judge.

8. Amend 208.16 by revising paragraphs a and c4 to read as follows:
208.16 Withholding of removal under section 241b3B of the Act and withholding of removal under the Convention Against Torture.

a Consideration of application for withholding of removal. An asylum officer shall not decide whether the exclusion, deportation, or removal of an alien to a country where the aliens life or freedom would be threatened must be withheld, except in the case of an alien who is determined to be an applicant for admission under section 235b1 of the Act, is found to have a credible fear of persecution or torture, and whose case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at 208.2a1ii to consider the application for asylum, and that application for asylum is denied.

c
4 In considering an application for withholding of removal under the Convention Against Torture, the asylum officer shall first determine whether the alien is more likely than not to be tortured in the country of removal. If the asylum officer determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. An alien entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial of withholding of removal under paragraph d2 or 3 of this section. If an alien entitled to such protection is subject to mandatory denial of withholding of removal under paragraph d2 or 3 of this section, the aliens removal shall be deferred under 208.17a.

9. Amend 208.17 by revising paragraph b, d, and e to read as follows:
208.17 Deferral of removal under the Convention Against Torture.

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b Notice to alien. 1 After an asylum officer orders an alien described in paragraph a of this section removed, the asylum officer shall inform the alien that his or her removal to the country where he or she is more likely than not to be tortured shall be deferred until such time as the deferral is terminated under this section or under 8 CFR
1208.17. The asylum officer shall inform the alien that deferral of removal:
i Does not confer upon the alien any lawful or permanent immigration status in the United States;
ii Will not necessarily result in the alien being released from the custody of DHS if the alien is subject to such custody;
iii Is effective only until terminated;
and iv Is subject to review and termination pursuant to this section or 8 CFR 1208.17 if the asylum officer determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated.
2 The asylum officer shall also inform the alien that removal has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured.

d Termination of deferral of removal. 1 At any time while deferral of removal is in effect, the Asylum Office with jurisdiction over an alien whose removal has been deferred under paragraph a of this section may schedule a hearing to consider whether deferral of removal should be terminated.
2 The Asylum Office shall provide notice to the alien of the time, place, and date of the termination hearing.
Such notice shall inform the alien that the alien may supplement the information in his or her initial application for withholding of removal under the Convention Against Torture and shall provide that the alien must submit any such supplemental information within 10 calendar days of service of such notice or 13 calendar days if service of such notice was by mail.
3 The asylum officer shall conduct a hearing and make a de novo determination, based on the record of proceeding and initial application in addition to any new evidence submitted by the alien, as to whether the alien is more likely than not to be tortured in the country to which removal has been
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