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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules significant possibility, taking into account the credibility of the statements made by the alien in support of the aliens claim and such other facts as are known to the officer, the alien can establish eligibility for asylum under section 208 of the Act or for withholding of removal under section 241b3 of the Act. However, prior to January 1, 2030, in the case of an alien physically present in or arriving in the Commonwealth of the Northern Mariana Islands, the officer may only find a credible fear of persecution if there is a significant possibility that the alien can establish eligibility for withholding of removal pursuant to section 241b3 of the Act.
3 An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 208.16 or 208.17.
4 In determining whether the alien has a credible fear of persecution, as defined in section 235b1Bv of the Act, or a credible fear of torture, the asylum officer shall consider whether the aliens case presents novel or unique issues that merit a positive credible fear finding pursuant to paragraph f of this section in order to receive further consideration of the application for asylum and withholding of removal.
5iA Except as provided in paragraphs e5ii through iv or paragraph e6 or 7 of this section, if an alien is able to establish a credible fear of persecution or torture but appears to be subject to one or more of the mandatory bars to applying for, or being granted, asylum contained in section 208a2 and b2 of the Act, or to withholding of removal contained in section 241b3B of the Act, the Department of Homeland Security shall nonetheless retain or refer the alien for further consideration of the aliens claim pursuant to paragraph f of this section, if the alien is not a stowaway.
If the alien is a stowaway, the Department shall place the alien in proceedings for consideration of the aliens claim pursuant to 208.2c3.

6 Prior to any determination concerning whether an alien arriving in the United States at a U.S.-Canada land border port-of-entry or in transit through the United States during removal by Canada has a credible fear of persecution or torture, the asylum officer shall conduct a threshold screening interview to determine whether such an alien is ineligible to apply for asylum pursuant to section
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208a2A of the Act and subject to removal to Canada by operation of the Agreement Between the Government of the United States and the Government of Canada For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries Agreement. In conducting this threshold screening interview, the asylum officer shall apply all relevant interview procedures outlined in paragraph d of this section, provided, however, that paragraph d2 of this section shall not apply to aliens described in this paragraph e6. The asylum officer shall advise the alien of the Agreements exceptions and question the alien as to applicability of any of these exceptions to the aliens case.

ii If the alien establishes by a preponderance of the evidence that he or she qualifies for an exception under the terms of the Agreement, the asylum officer shall make a written notation of the basis of the exception, and then proceed immediately to a determination concerning whether the alien has a credible fear of persecution or torture under paragraph d of this section.

f Procedures for a positive credible fear finding. If an alien, other than an alien stowaway, is found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue the alien a record of the positive credible fear determination, including copies of the asylum officers notes, the summary of the material facts, and other materials upon which the determination was based. The documents may be served in-person, by mail, or electronically. USCIS will retain jurisdiction over the application for asylum pursuant to 208.2a1ii for further consideration in a hearing pursuant to 208.9 or refer for consideration of the asylum and withholding of removal claim in proceedings under section 240 of the Act. If an alien stowaway is found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue a Form I863, Notice of Referral to Immigration Judge, for full consideration of the asylum claim, or the withholding of removal claim, in proceedings under 208.2c.
Parole of the alien may be considered only in accordance with section 212d5 of the Act and 8 CFR 212.5.
g Procedures for a negative credible fear finding. 1 If an alien is found not to have a credible fear of persecution or torture, the asylum officer shall provide the alien with a written notice of
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decision and issue the alien a record of the credible fear determination, including copies of the asylum officers notes, the summary of the material facts, and other materials upon which the determination was based. The documents may be served in-person, by mail, or electronically. The asylum officer shall inquire whether the alien wishes to have an immigration judge review the negative decision, which shall include an opportunity for the alien to be heard and questioned by the immigration judge as provided for under section 235b1BiiiIII of the Act, using Form I869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. The alien shall indicate whether he or she desires such review on Form I869. A refusal by the alien to make such indication shall be considered a request for review.
i If the alien requests such review, or refuses to either request or decline such review, the asylum officer shall serve him or her with a Form I863, Notice of Referral to Immigration Judge, for review of the credible fear determination in accordance with paragraph g2 of this section. Once the asylum officer has served the alien with Form I863, the immigration judge shall have sole jurisdiction to review whether the alien has established a credible fear of persecution or torture, and an asylum officer may not reconsider or reopen the determination.
ii If the alien is not a stowaway and does not request a review by an immigration judge, the officer shall order the alien removed and issue a Form I860, Notice and Order of Expedited Removal, after review by a supervisory asylum officer.
iii If the alien is a stowaway and the alien does not request a review by an immigration judge, the asylum officer shall refer the alien to the district director for completion of removal proceedings in accordance with section 235a2 of the Act.
2i Immigration judges will review negative credible fear findings as provided in 8 CFR 1003.42 and 1208.30g.
ii The record of the negative credible fear determination, including copies of the Form I863, the asylum officers notes, the summary of the material facts, and other materials upon which the determination was based shall be provided to the immigration judge with the negative determination.
PART 235INSPECTION OF PERSONS
APPLYING FOR ADMISSION
14. The authority citation for part 235
is revised to read as follows:

E:FRFM20AUP2.SGM

20AUP2