\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2004 \ FEDERAL REGISTER FINAL REGULATIONS - 2004 \ Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry [69 FR 69480] [FR 53-04]
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Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry [69 FR 69480] [FR 53-04]
FEDERAL REGISTER CITE:
69 FR 69480
DATE OF PUBLICATION:
November 29, 2004
BILLING CODE: 4410-10
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208, 212, and 235
[CIS No. 2255-03]
Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry
Department of Homeland Security.
This rule codifies specific terms of an agreement between the United States and Canada that permits the respective governments to manage which government decides certain aliens' requests for protection from persecution or torture pursuant to domestic implementation of international treaty obligations. This rule establishes U.S. Citizenship and Immigration Services (“USCIS”) asylum officers' authority to make threshold determinations concerning applicability of this agreement in the expedited removal contex
t. In addition, this rule codifies the existing definitions of “credible fear of persecution” and “credible fear of torture” without altering those definitions.
This final rule is effective December 29, 2004.
FOR FURTHER INFORMATION CONTACT:
Joanna Ruppel, Deputy Director, Asylum Division, Office of Refugee, Asylum, and International Operations, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW, Washington, DC 20536; Telephone (202) 272-1663.
Table of Contents
Validity of the Threshold Screening Process
Procedural Safeguards Under the Threshold Screening Interview Process: Arrivals from Canada
Screening Process Guarantees
V. Adjudicating Exceptions to the Agreement
Unaccompanied Minor Exception
Public Interest Exception
Valid Visa Exception
VI. Procedures for Asylum Seekers Going to and Being Returned from Canada
Process for Asylum Seekers Bound for Canada
Process for Asylum Seekers Returned from Canada
Cost of Processing Returned Asylum Seekers
VII. Monitoring Plans
VIII. Agreement Terms Unrelated to Processing Asylum Seekers Coming to the United States from Canada
Resettlement under the Agreement
Terminating the AgreementIX. Miscellaneous
Resolving U.S.-Canadian Differences in Interpreting the Agreement
Defining “land border port-of-entry'
Aliens “directed back” from Canada
X. Conforming Amendment to Part 235 of Title 8 of the Code of Federal Regulations
On March 8, 2004, the Secretary of Homeland Security and the Attorney General promulgated proposed rules to implement terms of the “Agreement Between the Government of the United States of America and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries' (“Safe Third Country Agreement” or “Agreement”), which, consistent with section 208(a)(2)(A) of the Immigration and Nationality Act (“Act”) (8 U.S.C. 1158(a)(2)(A)), provide for the return of
certain asylum seekers to the “country of last presence.” 69 FR 10620, 69 FR 10627. The Agreement is available both on the USCIS Web site,
, and the Web site for the U.S. Embassy in Canada,
The proposed rules outlined how the Department of Homeland Security (DHS) and the Department of Justice (DOJ) proposed to address the asylum, withholding of removal, and Convention Against Torture claims (“protection claims”) of aliens seeking to enter the U.S. at U.S.-Canada land border ports-of-entry, or in transit through the U.S. during removal by the Canadian government, in accordance with the Safe Third Country Agreement. The Agreement allocates responsibility between the United States and Canada wher
eby one country or the other (but not both) will assume responsibility for processing the claims of certain asylum seekers who are traveling from Canada into the United States or from the United States into Canada. The Agreement provides for a threshold determination to be made concerning which country will consider the merits of an alien's protection claim, enhancing the two nations' ability to manage, in an orderly fashion, asylum claims brought by persons crossing our common border. As discussed in the
section in the preamble to those proposed rules, the Agreement allocates resources and provides for prescreening of asylum and related claims in certain instances during the expedited removal process, where the asylum officer would determine whether any of the Agreement's exceptions apply or whether aliens should be returned to Canada for consideration of their protection claims. The limited number of aliens arriving from Canada at land border ports-of-entry or in transit during removal by the Canadian gove
rnment who are placed in removal proceedings under section 240 of the Act (8 U.S.C. 1229a) (instead of being processed through expedited removal procedures) would have the Agreement applied to them in the first instance by immigration judges of the Executive Office for Immigration Review (“EOIR”), as outlined in the DOJ proposed rule at 69 FR 10627 et seq. In response to the DHS proposed rule, DHS received 7 sets of comments from non-governmental organizations (“NGOs”) and the Office of the United Nations H
igh Commissioner for Refugees (“UNHCR”). While incorporating several of the comments, this final rule implements the basic approach discussed in the March 8 rule proposed by DHS.
The following discussion of the comments received by DHS corresponds generally to the variety of issues raised by commenters and is arranged into the following categories: Validity of the threshold screening process identified in the proposed rule; issues related to detention of asylum seekers; procedural safeguards under the threshold screening process; adjudication of the Agreement's several exceptions to its general rule of returning certain asylum seekers to Canada; procedures for asylum seekers bound f
or and returned from Canada; monitoring of the Agreement's implementation and impact; and Agreement terms unrelated to processing asylum seekers coming to the United States from Canada. Within each category, the discussion summarizes the relevant comments and offers the Department's responses, including an explanation of any changes made to the rule. Following the discussion of the comments is an explanation of one minor conforming regulatory amendment included in the final rule to ensure that existing regu
lations governing the expedited removal process are consistent with the threshold screening interview mechanism adopted in DHS” final rule. Many commenters took issue with the Agreement itself, challenging its wisdom on policy grounds. This
Supplementary Information to the final rule, while endeavoring to address each comment as fully as possible, does not engage in a policy debate about the Agreement itself.