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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
Application for Asylum and for Withholding of Removal Form I
589, until after being placed into removal proceedings. In many cases, the application may be filed many months after removal proceedings are initiated, thus potentially delaying adjudication.
In many other cases, an application is never filed. EOIR has reported that, for individuals who were referred to USCIS
for the credible fear screening process and then placed into proceedings before EOIR between FY 2008 and the third quarter of FY 2020, only 62 percent have filed an asylum application with EOIR as of July 2020.40
Under this proposed rule, an individual who passes the initial credible fear screening would have his claim reviewed by an asylum officer in USCIS in the first instance, rather than by an IJ in a removal hearing under section 240 of the INA. As part of this new procedure for further consideration, and to eliminate delays between a positive credible fear determination and the filing of an application for asylum, the Departments propose that the written record of the credible fear determination created by USCIS during the credible fear process, and subsequently served on the individual together with the service of the credible fear decision itself, would be treated as an application for asylum, with the date of service on the individual considered the date of filing.
8 CFR 208.3a2 proposed. Every individual who receives a positive credible fear determination would be considered to have filed an application for asylum at the time the determination is served on him or her. The application would be considered filed or received as of the service date for purposes of the 1-year filing deadline for asylum, see INA 208a2B, 8 U.S.C. 1158a2B, and for starting the clock for eligibility to file for work authorization on the basis of a pending asylum application, 8 CFR 208.3c3 current. The Departments propose that this application for asylum would not be subject to the completeness requirement of 8 CFR 208.3c and 208.9a in order to qualify for hearing and adjudication, but it would be subject to the other conditions and consequences provided for in 8 CFR 208.3c once the noncitizen signs the documentation under penalty of perjury and with notice of the consequences of the filing 40 EOIR, Executive Office for Immigration Review Adjudication Statistics: Rates of Asylum Filings in Cases Originating with a Credible Fear Claim July 2020, https www.justice.gov/eoir/page/file/
1062971/download.

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of a frivolous asylum application at the time of the asylum officer hearing.41
The Departments plan to implement these changes to the credible fear process by having the trained USCIS
asylum officer conducting the credible fear interview advise the noncitizen of the consequences of filing a frivolous asylum application and capture the noncitizens relevant information through testimony provided under oath.
During this process, the asylum officer would elicit all relevant and useful information for the credible fear determination, id. 208.30d, create a summary of the material facts presented by the noncitizen during the interview, read the summary back to the noncitizen, and allow the noncitizen to correct any errors, id. 208.30d6.
The record created would contain the necessary biographical information and sufficient information related to the noncitizens fear claim to be considered an application. The information captured by the asylum officer during the credible fear interview will contain information about the noncitizens spouse and children, including those who were not part of the credible fear determinationbut under this proposed rule only a spouse or children who were included in the credible fear determination issued pursuant to proposed 8 CFR 208.30c or have a pending asylum application with USCIS
pursuant to 208.2a1ii can be included on the request for asylum.42 See id. 208.3a2. A copy of 41 In addition, the Departments are proposing to amend 8 CFR 1208.3 and 1208.4 to account for changes made by this proposed rule, including the proposed provisions that would treat the credible fear interviews as an application for asylum in the circumstances addressed by the proposed rule. The amendment at 8 CFR 1208.3c3 affects language that was enacted by DOJ in 2020. See Procedures for Asylum and Withholding of Removal, 85 FR
81698 Dec. 16, 2020. The December 16, 2020
rulemaking made various changes to DOJ
regulations, including 8 CFR 1208.3c3. Id. Those changes remain enjoined. See National Immigrant Justice Center, et. al., v. Exec. Office for Immigration Review, et. al., No. 21CV00056
D.D.C.. As noted above, the proposed rule would make changes to the regulations only as necessary to effectuate its goals. The Departments anticipate that additional changes to the relevant regulations, including rescission of or revision to the language added by the enjoined regulation, will be made through later rulemakings.
42 While only a spouse or dependent included on the credible fear determination or who presently has an asylum application pending with USCIS
after a positive credible fear determination can be included on the subsequent asylum application under this proposed process, the noncitizen granted asylum remains eligible to apply for accompanying or follow-to-join benefits for any qualified spouse or child not included on the asylum application, as provided for in 8 CFR 208.21. The Departments believe that it is procedurally impractical to attempt to include a spouse or child on the application when the spouse or child has not previously been
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this application for asylum, including the officers notes from the interview and basis for the determination, would be provided to the noncitizen at the time that the credible fear determination is served. See id. 208.30f, g1. As proposed in this rule, the noncitizen would be allowed to supplement or request modifications or corrections to this application up until 7 days prior to the scheduled asylum hearing before a USCIS asylum officer, or for documents submitted by mail, postmarked no later than 10 days before the scheduled asylum hearing. Id. 208.3a2.
The information required to be gathered during the credible fear screening process is based on the noncitizens own testimony under oath in response to questions from a trained USCIS asylum officer. Thus, the Departments believe that the screening would provide sufficient information upon which to conduct a full asylum interview. Under this proposed rule, all noncitizens who receive a positive credible fear determination would have an asylum application on file with the Government within days of their credible fear screenings, thereby meeting the one-year asylum filing deadline, avoiding the risk of filing delays, and immediately beginning the waiting period for work authorization eligibility. Understanding that noncitizens may want to modify, correct, or supplement the initial presentation of their protection claims, this proposed rule would allow the noncitizen to do so in advance of the hearing before the asylum officer. The Departments seek comments on all aspects of this proposed change.
D. Proceedings for Further Consideration of the Application for Asylum by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for Noncitizens With Credible Fear Proposed 8 CFR 208.2a and c;
208.9a, f, and g; 208.14c5;
208.30e and f; 235.6a1; 1003.42;
and 1208.30g As noted earlier in the preamble, under the current regulatory framework, if an asylum officer determines that a noncitizen subject to expedited removal has a credible fear of persecution or placed into expedited removal and subsequently referred to USCIS after a positive credible fear determination. This is similar to the inability to include a spouse or child not in removal proceedings under section 240 of the INA on the asylum application of a principal asylum application who is in such removal proceedings.
Under such circumstances, there is no clear basis for issuing a final order of removal against such an individual spouse or child should the asylum application be denied. The Departments seek comments on this proposed approach.

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