§1003.42. Review of credible fear determinations.
8 C.F.R. § 1003.42
Referral. Jurisdiction for an immigration judge to review a negative credible fear determination by an asylum officer pursuant to section 235(b)(1)(B) of the Act shall commence with the filing by DHS of Form I-863, Notice of Referral to Immigration Judge, and a complete copy of the record of determination as defined in section 235(b)(1)(B)(iii)(II) of the Act with the immigration court.
Record of proceeding. The immigration court shall create a Record of Proceeding for a review of a negative fear determination. This record shall not be merged with any later proceeding involving the same alien.
Procedures and evidence. The immigration judge may receive into evidence any oral or written statement which is material and relevant to any issue in the review. The testimony of the alien shall be under oath or affirmation administered by the immigration judge. If an interpreter is necessary, one will be provided by the immigration court. The immigration judge shall determine whether the review shall be in person, or through telephonic or video connection (where available). The alien may consult with a person or persons of the alien's choosing prior to the review.
Standard of review. The immigration judge shall make a de novo determination as to whether there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim, and such other facts as are known to the immigration judge, that the alien could establish eligibility for asylum under section 208 of the Act, or could establish eligibility for withholding of removal under section 241(b)(3)(B) of the Act, or withholding or deferral of removal under the Convention Against Torture with respect to the country or countries of removal identified pursuant to section 241(b) of the Act. This determination shall, where relevant, include review of the asylum officer's application of any bars to asylum and withholding of removal pursuant to 8 CFR 208.30(e)(5).
Timing. The immigration judge shall conclude the review to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date the supervisory asylum officer has concurred with the asylum officer's negative credible fear determination issued on the Form I-869, Record of Negative Credible Fear Finding and Request for Review.
Decision.
The decision of the immigration judge shall be rendered in accordance with the provisions of 8 CFR 1208.30(g)(2). In reviewing the negative fear determination by DHS, the immigration judge shall apply relevant precedent issued by the Board of Immigration Appeals, the Attorney General, the Federal circuit court of appeals having jurisdiction over the immigration court where the Request for Review is filed, and the Supreme Court.
No appeal shall lie from a review of a negative fear determination made by an immigration judge, but the Attorney General, in the Attorney General's sole and unreviewable discretion, may direct that the immigration judge refer a case for the Attorney General's review following the Immigration Judge's review of a negative fear determination.
In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board for transmittal and service as provided in 8 CFR 1003.1(f). Such decision by the Attorney General may be designated as precedent as provided in 8 CFR 1003.1(g).
Custody. An immigration judge shall have no authority to review an alien's custody status in the course of a review of a negative fear determination made by DHS.
Asylum cooperative agreement—
Applicants for admission, 2002 U.S.-Canada Agreement, which includes the Additional Protocol of 2022. An immigration judge has no jurisdiction to review a determination by an asylum officer that an applicant for admission is not eligible to apply for asylum pursuant to the 2002 U.S.-Canada Agreement, which includes the Additional Protocol of 2022, formed under section 208(a)(2)(A) of the Act and should be returned to Canada to pursue their claims for asylum or other protection under the laws of Canada. See 8 CFR 208.30(e)(6). However, in any case where an asylum officer has found that an applicant for admission qualifies for an exception to that Agreement, which includes the Additional Protocol of 2022, or that the Agreement, which includes the Additional Protocol of 2022, does not apply, an immigration judge does have jurisdiction to review a negative credible fear finding made thereafter by the asylum officer as provided in this section.
Aliens in transit. An immigration judge has no jurisdiction to review any determination by DHS that an alien being removed from Canada in transit through the United States should be returned to Canada to pursue asylum claims under Canadian law, under the terms of the 2002 U.S.-Canada Agreement, which includes the Additional Protocol of 2022.
Applicants for admission. An immigration judge has no jurisdiction to review a determination by an asylum officer that an alien is not eligible to apply for asylum pursuant to a bilateral or multilateral agreement with a third country under section 208(a)(2)(A) of the Act and should be removed to the third country to pursue his or her claims for asylum or other protection under the laws of that country. See 8 CFR 208.30(e)(7). However, if the asylum officer has determined that the alien may not or should not be removed to a third country under section 208(a)(2)(A) of the Act and subsequently makes a negative fear determination, an immigration judge has jurisdiction to review the negative fear finding as provided in this section.
Aliens in transit through the United States from countries other than Canada. An immigration judge has no jurisdiction to review any determination by DHS that an alien being removed from a receiving country in transit through the United States should be returned to pursue asylum claims under the receiving country's law, under the terms of the applicable cooperative agreement. See 8 CFR 208.30(e)(7).
Severability. The provisions of part 1003 are separate and severable from one another. In the event that any provision in part 1003 is stayed, enjoined, not implemented, or otherwise held invalid, the remaining provisions shall nevertheless be implemented as an independent rule and continue in effect.
Notes, amendments, and revision history
Amendments
[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999; 69 FR 69496, Nov. 29, 2004; 83 FR 55952, Nov. 9, 2018; 84 FR 33844, July 16, 2019; 84 FR 64009, Nov. 19, 2019; 85 FR 80393, Dec. 11, 2020; 87 FR 18220, Mar. 29, 2022; 88 FR 18240, Mar. 28, 2023; 88 FR 31451, May 16, 2023; 89 FR 105401, Dec. 27, 2024; 90 FR 41888, Aug. 28, 2025; 91 FR 5278, Feb. 6, 2026]
Authority
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, 1801, 1802, 1808, 1812; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002.
Source
Source: Redesignated at 68 FR 9830, Feb. 28, 2003.
Amendments
[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999; 69 FR 69496, Nov. 29, 2004; 83 FR 55952, Nov. 9, 2018; 84 FR 33844, July 16, 2019; 84 FR 64009, Nov. 19, 2019; 85 FR 80393, Dec. 11, 2020; 87 FR 18220, Mar. 29, 2022; 88 FR 18240, Mar. 28, 2023; 88 FR 31451, May 16, 2023; 89 FR 105401, Dec. 27, 2024; 90 FR 41888, Aug. 28, 2025; 91 FR 5278, Feb. 6, 2026]