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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 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 8 CFR 208.2a1ii to consider the application for asylum, and that application for asylum is denied. In exclusion, deportation, or removal proceedings, an immigration judge may adjudicate both an asylum claim and a request for withholding of removal, whether or not asylum is granted.

28. Amend 1208.18 by revising paragraph b1 to read as follows:
1208.18 Implementation of the Convention Against Torture.

b
1 Aliens in proceedings on or after March 22, 1999. i An alien who is in exclusion, deportation, or removal proceedings on or after March 22, 1999, may apply for withholding of removal under 1208.16c, and, if applicable, may be considered for deferral of removal under 1208.17a.
ii In addition, an alien may apply for withholding of removal under 8 CFR
208.16c, and, if applicable, may be considered for deferral of removal under 8 CFR 208.17a, in the following situation: the alien is determined to be an applicant for admission under section 235b1 of the Act, the alien is found to have a credible fear of persecution or torture, and the aliens case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at 8 CFR
208.2a1ii to consider the application for asylum, and that application for asylum is denied.

1208.19

Removed and Reserved
29. Remove and reserve 1208.19.
30. Revise 1208.22 to read as follows:

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1208.22 Effect on exclusion, deportation, and removal proceedings.

An alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated pursuant to 8 CFR 208.24 or 1208.24. An alien who is granted withholding of removal or deportation, or deferral of removal, may not be deported or removed to the country to which his or her deportation or removal
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is ordered withheld or deferred unless the withholding order is terminated pursuant to 8 CFR 208.24 or 1208.24
or deferral is terminated pursuant to 8
CFR 208.17 or 1208.17d or e.
31. Amend 1208.30 by revising the section heading and paragraphs a, e, and g2 to read as follows:
1208.30 Credible fear of persecution or torture determinations involving stowaways and applicants for admission who are found inadmissible pursuant to section 212a6C or 212a7 of the Act.

a Jurisdiction. The provisions of this subpart apply to aliens subject to sections 235a2 and 235b1 of the Act. Pursuant to section 235b1B of the Act, DHS has exclusive jurisdiction to make the determinations described in this subpart. Except as otherwise provided in this subpart, paragraphs b through g of this section are the exclusive procedures applicable to stowaways and applicants for admission who are found inadmissible pursuant to section 212a6C or 212a7 of the Act and who receive fear interviews, determinations, and reviews under section 235b1B of the Act. Prior to January 1, 2030, an alien physically present in or arriving in the Commonwealth of the Northern Mariana Islands is ineligible to apply for asylum and may only establish eligibility for withholding of removal pursuant to section 241b3 of the Act or withholding or deferral of removal under the regulations in 1208.16c through f, 1208.17, and 1208.18 issued pursuant to the Convention Against Tortures implementing legislation.

e Determination. For the standards and procedures for asylum officers in conducting credible fear interviews and hearings, and in making positive and negative credible fear determinations, see 8 CFR 208.30. The immigration judges will review such determinations as provided in paragraph g of this section and 8 CFR 1003.42 and 1003.48.

g
2 Review by immigration judge of a negative credible fear finding. i The asylum officers negative decision regarding credible fear shall be subject to review by an immigration judge upon the applicants request, or upon the applicants refusal either to request or to decline the review after being given such opportunity, in accordance with section 235b1BiiiIII of the Act.
The immigration judge shall not have the authority to remand the case to the asylum officer.
ii The record of the negative credible fear determination, including copies of
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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.
iii A credible fear hearing shall be closed to the public unless the alien states for the record or submits a written statement that the alien is waiving that requirement; in that event the hearing shall be open to the public, subject to the immigration judges discretion as provided in 8 CFR 1003.27.
iv Upon review of the asylum officers negative credible fear determination:
A If the immigration judge concurs with the determination of the asylum officer that the alien does not have a credible fear of persecution or torture, the case shall be returned to DHS for removal of the alien. The immigration judges decision is final and may not be appealed.
B If the immigration judge finds that the alien, other than an alien stowaway, possesses a credible fear of persecution or torture, the immigration judge shall vacate the Notice and Order of Expedited Removal and refer the case back to DHS for further proceedings consistent with 1208.2a1ii.
Alternatively, DHS may commence removal proceedings under section 240
of the Act, during which time the alien may file an application for asylum and withholding of removal in accordance with 1208.4b3i.
C If the immigration judge finds that an alien stowaway possesses a credible fear of persecution or torture, the alien shall be allowed to file an application for asylum and withholding of removal before the immigration judge in accordance with 1208.4b3iii. The immigration judge shall decide the application as provided in that section.
Such decision may be appealed by either the stowaway or DHS to the Board of Immigration Appeals. If a denial of the application for asylum and for withholding of removal becomes final, the alien shall be removed from the United States in accordance with section 235a2 of the Act. If an approval of the application for asylum or for withholding of removal becomes final, DHS shall terminate removal proceedings under section 235a2 of the Act.
PART 1235INSPECTION OF
PERSONS APPLYING FOR ADMISSION
32. The authority citation for part 1235 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 pursuant to E.O. 13323, 69 FR

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