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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 pursuant to E.O. 13323, 69 FR
241, 3 CFR, 2003 Comp., p. 278, 1201, 1224, 1225, 1226, 1228, 1365a note, 1365b, 1379, 173132; 48 U.S.C. 1806, 1807, and 1808 and 48 U.S.C. 1806 notes Title VII of Pub. L.
110229, 122 Stat. 754; 8 U.S.C. 1185 note section 7209 of Pub. L. 108458, 118 Stat.
3638 and Pub. L. 11254, 125 Stat. 550.

15. Amend 235.3 by revising paragraphs b2iii and b4ii to read as follows:

235.3 Inadmissible aliens and expedited removal.

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b
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iii Detention and parole of alien in expedited removal. An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal. Parole of such alien, in accordance with section 212d5 of the Act and 212.5 of this chapter, may be permitted only when DHS determines, in the exercise of discretion, that parole is required to meet a medical emergency, for a legitimate law enforcement objective, or because detention is unavailable or impracticable including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities.

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ii Detention pending credible fear interview. Pending the credible fear determination by an asylum officer and any review of that determination by an immigration judge, the alien shall be detained. Parole of such alien, in accordance with section 212d5 of the Act and 212.5 of this chapter, may be permitted only when DHS determines, in the exercise of discretion, that parole is required to meet a medical emergency, for a legitimate law enforcement objective, or because detention is unavailable or impracticable including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities. A grant of parole would be for the limited purpose of parole out of custody and cannot serve as an independent basis for employment authorization under 274a.12c11 of this chapter. Prior to the interview, the alien shall be given time to contact and consult with any person or persons of his or her choosing. If the alien is detained, such consultation shall be made available in accordance with the
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policies and procedures of the detention facility where the alien is detained, shall be at no expense to the Government, and shall not unreasonably delay the process.

16. Amend 235.6 by:
a. Removing and reserving paragraphs a1iii and iv; and b. Revising paragraph a2i;
c. Removing the period at the end of paragraph c2ii and adding ; or in its place; and d. Revising paragraph a2iii.
The revisions read as follows:
235.6

Referral to immigration judge.

a
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i If an asylum officer determines that the alien does not have a credible fear of persecution or torture, and the alien requests a review of that determination by an immigration judge;

iii If an immigration officer refers an applicant in accordance with the provisions of 208.2c1 or 2 of this chapter to an immigration judge for an asylumor withholding-only hearing.

DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, the Attorney General proposes to amend 8 CFR parts 1003, 1208, and 1235 as follows:
PART 1003EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
17. The authority citation for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 19491953 Comp., p. 1002;
section 203 of Pub. L. 105100, 111 Stat.
2196200; sections 1506 and 1510 of Pub. L.
106386, 114 Stat. 152729, 153132; section 1505 of Pub. L. 106554, 114 Stat. 2763A
326 to 328.

18. Amend 1003.1 by adding paragraph b15 to read as follows:

1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals.

b
15 Decisions of immigration judges in proceedings pursuant to 1003.48, including immigration judges decisions on motions under 1003.48d to vacate removal orders. Immigration judges decisions denying applications because the applicant failed to appear cannot be appealed, but immigration judges
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decisions on motions to reopen and motions to reconsider can be appealed.

19. Amend 1003.12 by revising the second sentence to read as follows:
1003.

12 Scope of rules.

Except where specifically stated, the rules in this subpart apply to matters before immigration judges, including, but not limited to:
Deportation, exclusion, removal, bond, rescission, departure control, asylum proceedings including application review proceedings under 1003.48, and disciplinary proceedings.
20. Add 1003.48 to read as follows:
1003.48 Review of applications denied after a positive credible fear determination.

a Scope. In proceedings conducted under this section, immigration judges shall have the authority, upon the request of an applicant under 8 CFR
208.14c5, to review asylum officers decisions on applications for asylum under section 208 of the Act, withholding of removal under section 241b3 of the Act, and withholding or deferral of removal under the Convention Against Torture. Where an asylum officer grants one application but denies another, the immigration judge has the authority to review both the denial and the grant. An immigration judge shall not have the authority in these proceedings to consider an application for a form of relief and protection other than those listed in the first sentence of this paragraph a, or to review an asylum officers inadmissibility determination under section 235b1Ai of the Act.
However, an applicant can file a motion to vacate a removal order as specified in paragraph d of this section.
b Commencement of proceedings.
Proceedings under this section shall commence when DHS files with the Immigration Court the documents identified in paragraphs b1 through 4 of this section:
1 A Notice of Referral to the immigration judge;
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 the Notice of Referral, the record of proceedings, and the written decision, including the removal order, have been served on the applicant, which may consist of service via mail.
c Proceedings before the immigration judge. After a Notice of
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