Sec.

PART 108-ASYLUM

108.1 Application.

108.2 Decision.

Authority: Sec. 103; 66 Stat. 173 (8 U.S.C. 1103).

§108.1 Application.

An application for asylum by an alien who is seeking admission to the United States at a land border port or preclearance station shall be referred to the nearest American consul. An application for asylum by any other alien who is within the United States or who is applying for admission to the United States at an airport or seaport of entry shall be submitted on Form I-589 to the district director having jurisdiction over his place of residence in the United States or over the port of entry. The applicant's accompanying spouse and unmarried children under the age of 18 years may be included in the application. [39 F.R. 41832, Dec. 3, 1974] §108.2 Decision.

The applicant shall appear in person before an immigration officer prior to adjudication of the application, except that the personal appearance of any children included in the application may be waived by the district director. The district director shall request the views of the Department of State before making his decision unless in his opinion the application is clearly meritorious or clearly lacking in substance. The district director may approve or deny the application in the exercise of discretion. The district director's decision shall be in writing, and no appeal shall lie therefrom. If an application is denied for the reason that that it is clearly lacking in substance, notification shall be given to the Department of State, with opportunity to supply a statement containing matter favorable to the application, and departure shall not be enforced until 30 days following the date of notification unless a reply has been received from the Department of State prior to that time. A case shall be certified to the regional commissioner for final decision if the Department of State has made a favorable statement, but, notwithstanding, the district director has chosen to deny the application. If any decision will be based in whole or in part upon a statement furnished by the Department of State, the statement shall be made a part of the record of proceeding, and the applicant shall have an opportunity for inspection, explanation, and rebuttal thereof as prescribed in §103.2(b)(2) of this chapter. A

(a) Relative. A petition to accord preference classification under section 203(a) (1), (2), (4), or (5) of the Act or classification as an immediate relative under section 201(b) of the Act, other than a child as defined in section 101(b)(1)(F) of the Act, shall be filed on a separate Form I-130 for each beneficiary and shall be accompanied by the fee required under § 103.7(b) of this chapter. The petition shall be filed in the office of the Service having jurisdiction over the place where the petitioner is residing in the United States. When the petitioner resides outside of the United States, the petition shall be filed with the foreign office of the Service designated to act on the petition which can be ascertained by consulting the nearest American consul. American consular officers assigned to visa-issuing posts abroad, except those is Austria, Germany, Greece, Italy, Japan, the Philippines, Hong Kong, and Mexico are also authorized to approve any petition on Form I-130 when the petitioner and beneficiary are physically present in the area over which the consular officers have jurisdiction. While such consular officers are authorized to approve such peti

(c) Prompt response.-(1) Response within 10 days. Within 10 days (excluding Saturdays, Sundays and legal public holidays) of the receipt of a request by the Service (or in the case of an improperly addressed request, of its receipt by the appropriate office as specified in paragraph (a) of this section), the authorized Service official shall either comply with or deny such request unless an extension is made under 28 CFR 16.5(c). A request improperly addressed will not be deemed to have been received for purposes of the time period set forth in 5 U.S.C. 552(a) (6) until forwarding to the appropriate office has been effected, or until such forwarding would have been effected with the exercise of due diligence by Service personnel. On receipt of a request forwarded as set forth in paragraph (a) of this section to the appropriate office, such office shall notify the requester of the date on which the time period commenced to run.

(2) Treatment of delay as a denial. If no substantive reply is forthcoming at the end of the 10-day period, or the last extension thereof under 28 CFR 16.5(c), the requester may deem his request denied, and exercise a right of appeal in accordance with 28 CFR 16.7. When no substantive reply can be made within the applicable time limit, the responsible Service office shall nevertheless continue to process the request; it shall inform the requester upon expiration of the time limit of the reason for the delay, of the date on which a determination may be expected to be dispatched, and of his right to treat the delay as a denial and appeal to the Attorney General in accordance with 28 CFR 16.7; and it may ask the requester to forego appeal until a determination is made.

(d) Disposition of requests.—(1) Form of grant. When a requested record is available, the responsible office shall notify the requester when and where the record is available or copies will be available. The notification shall also advise the requester of any applicable fees under 28 CFR 16.9.

(2) Form of denial. A reply denying a written request for a record in whole or in part shall be in writing, signed by the Associate Commissioner, Management, by a regional commissioner, or by a district director, and it shall include a reference to the specific exemption under the Freedom of Information Act authorizing withholding of the record. To the extent consistent with the purpose of the exemption, the notice of denial shall contain a brief explanation of how the exemption applies

to the record withheld, and if the deciding official considers it appropriate, a statement of why the exempt record is being withheld. The notice of denial shall include a statement of the right of appeal to the Attorney General in accordance with 28 CFR 16.7 (see subparagraph (3) of this paragraph), and that judicial review will thereafter be available in the district in which the requester resides or has his principal place of business or the district in which the agency records are situated or the District of Columbia.

(3) Right of appeal. When a request for records has been denied in whole or in part the requester may, within 30 days of its receipt, appeal the denial to the Attorney General (Attention: Freedom of Information Appeals Unit), Department of Justice, Washington, D.C. 20530, and both the envelope and the letter shall be clearly marked: "FREEDOM OF INFORMATION APPEAL” or "INFORMATION APPEAL.”

(e) Copies of responses to Deputy Attorney General. A copy of each notification to a requester of a delay, notice of extension, denial or of inability to locate a requested record shall be furnished to the Deputy Attorney General.

(f) Verification of information from Service records. When a requester desires, not a copy of a record, but a formal statement by the Service verifying particular information based on Service records, his request is not being made pursuant to the Freedom of Information Act and shall be submitted on Form G-641 to the Service office having jurisdiction over his place of residence.

[40 F.R. 7237, Feb. 19, 1975, as amended at 40 F.R. 17743, Apr. 22, 1975; 41 F.R. 34938, Aug. 18, 1976]

§103.20 Purpose and scope.

(a) Sections 103.20 through 103.36 comprise the regulations of the Service implementing the Privacy Act of 1974, P.L. 93-597. The regulations apply to all records contained in systems of records maintained by the Service which are identifiable by individual name or identifier and which are retrieved by individual name or identifier, except those personnel records governed by Civil Service Commission regulations. The regulations set forth the procedures by which individuals may seek access to records pertaining to themselves and request correction of those records. The regulations also set forth the requirements applicable to Service employees maintaining, collecting, using or disseminating such records.

(b) The Associate Commissioner, Management, shall provide that the provisions of 88103.20 through 103.36 of this chapter and 28 CFR 16.40 through 16.56, and any revisions thereof, shall be brought to the attention of and made available to:

(1) Each employee at the time of issuance of the aforesaid regulations and any amendment thereto; and

(2) Each new employee at the time of employment.

(c) The Associate Commissioner, Management, shall be responsible for insuring that employees of the Service are trained in the obligations imposed by the Privacy Act of 1974 and by these regulations.

§103.21 Access by individuals to records maintained about them.

(a) Access to available records. An individual seeking access to records about himself in a system of records, which have not been exempted from access pursuant to the Privacy Act of 1974, shall present his request in person or in writing to the manager of the particular system of records to which he seeks access. Systems managers are identified in the "Notice of Systems of Records" published by the National Archives and Records Service, General Services Administration. Access to records in multiple systems of records shall be addressed to the Office of the Associate Commissioner, Management, which shall assist the requester in identifying his request more precisely and shall be responsible for forwarding the request to the appropriate system managers.

(b) Verification of identity. The following standards are applicable to any individual who requests records concerning himself, unless other provisions for identity verification are specified in the published notice pertaining to the particular system of records.

(1) An individual seeking access to records about himself in person shall establish his identity by the presentation of a single document bearing a photograph (such as a passport, alien registration receipt card or identification badge) or by the presentation of two items of identification which do not bear a photograph but do bear both a name and address (such as a driver's license, or credit card).

(2) An individual seeking access to records about himself by mail shall establish his identity by a signature, address, date of birth, place of birth, alien or employee identification number, if any, and one other identifier such as a photocopy of an identifying document.

of

(3) An individual seeking access to records about himself by mail or in person who cannot provide the necessary documentation identification may provide a notarized statement swearing or affirming to his identity and to the fact that he understands the penalties for false statements pursuant to 18 U.S.C. 1001. Forms for such notarized statements may be obtained on request from the office of the system manager of a system of records at a system location listed in the "Notice of Systems of Records" published in the FEDERAL REGISTER.

(c) Verification of guardianship. The parent or guardian of a child or of a person judicially determined to be incompetent and seeking to act on behalf of such child or incompetent, shall, in addition to establishing his own identity, establish the identity of the child or other person he represents as required in paragraph (b) of this section, and establish his own parentage or guardianship of the subject of the record by furnishing either a copy of a birth certificate showing parentage or a court order establishing the guardianship.

(d) Accompanying persons. An individual seeking to review records pertaining to himself may be accompanied by another individual of his own choosing. Both the individual seeking access and the individual accompanying him shall be required to sign the required form indicating that the Service is authorized to discuss the contents of the subject record in the presence of both individuals.

(e) Specification of records sought. Requests for access to records, either in person or by mail, shall describe the nature of the records sought, the approximate dates covered by the record, the system in which it is thought to be included as described in the "Notice of Systems of Records" published in the FEDERAL REGISTER, and the identity of the individual or office of the Service having custody of the system of records. In addition, the published “. Notice of Systems of Records" for individual systems may include further requirements of specification, where necessary, to retrieve the individual record from the system.

[40 F.R. 44481, Sept. 26, 1975; 40 F.R. 46092, Oct. 6, 1975]

§103.22 Records exempt in whole or in part.

(a) When an individual requests records about himself which have been exempted from individual access pursuant to 5 U.S.C. 552a(j) or (k)(3) or (k)(4) or which have been compiled in reasonable anticipation of a civil action or proceeding either in a court or before

an administrative tribunal, the Service will neither confirm nor deny the existence of the record but shall advise the individual only that there is no record which is available to him pursuant to the Privacy Act of 1974.

(b) Individual requests for access to records which have been exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as follows:

(1) Requests for information classified by the Service pursuant to Executive Order 11652 require the Service to review the information to determine whether it continues to warrant classification under the criteria of sections 1 and 5 (B), (C), (D), and (E) of the Executive Order. Information which no longer warrants classification under these criteria shall be declassified and made available to the individual, if not otherwise exempt. If the information continues to warrant classification, the individual shall be advised that the information sought is classified; that it has been reviewed and continues to warrant classification; and that it has been exempted from access pursuant to 5 U.S.C. 552a(k)(1). Information which has been exempted pursuant to 5 U.S.C. 552a(j) and which is also classified shall be reviewed as required by this paragraph but the response to the individual shall be in the form prescribed by paragraph (a) of this section.

(2) Requests for information which has been exempted from disclosure pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner provided in paragraph (a) of this section unless a review of the information indicates that the information has been used or is being used to deny the individual any right, privilege or benefit for which he is eligible or to which he would otherwise be entitled under Federal law. In that event, the individual shall be advised of the existence of the record and shall be provided the information except to the extent it would identify a confidential source. If and only if information identifying a confidential source can be deleted or the pertinent parts of the record summarized in a manner which protects the identity of the confidential source, the document with deletions made or the summary shall be furnished to the

requester.

(3) Information compiled as part of an employee background investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5) shall be made available to an individual upon request except to the extent that it identifies a confidential source. If and only

if information identifying a confidential source can be deleted or the pertinent parts of the record summarized in a manner which protects the identity of the confidential source, the document with deletions made or the summary shall be furnished to the requester.

(4) Testing or examination material which has been exempted pursuant to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if disclosure would compromise the objectivity or fairness of the testing or examination process but shall be made available if no such compromise possibility exists.

(5) The Service records which are exempted and the reasons for the exemptions are enumerated in 28 CFR 16.99.

§103.23 Special access procedures.

(a) Records of other agencies. When information sought from a system of records of the Service includes information:

(1) That has been classified pursuant to Executive Order 11652, the request shall be referred to the appropriate classifying authority pursuant to 28 CFR 17.61 and the individual requesting the record shall be so advised unless the record is also exempt from disclosure pursuant to 5 U.S.C. 552a (j) or (k);

(2) That has been furnished by another component of the Department of Justice, the request shall be referred to the component originating the information for a decision as to access or correction;

(3) That has been furnished by another agency, the Service shall consult the other agency before granting access or making a correction and may refer the request to the other agency if referral will provide more expeditious access or correction, but the requester shall be notified of the referral.

(b) Medical records. When an individual requests medical records concerning himself, which are not otherwise exempt from disclosure, the system manager shall, if deemed necessary, advise the individual that records will be provided only to a physician designated in writing by the individual. Upon receipt of the designation, the system manager will permit the physician to review the records or to receive copies of the records by mail, upon proper verification of identity. The determination of which records should be made available directly to the individual and which records should not be disclosed because of possible harm to the individual shall be made by the physician.

$103.24 Requests for accounting of record

disclosure.

At the time of his request for access or correction or at any other time, an individual may request an accounting of disclosures made of his record outside the Department of Justice. Requests for accounting shall be directed to the appropriate system manager listed in the “Notice of Systems of Records". Any available accounting, whether kept in accordance with the requirements of the Privacy Act or under procedures established prior to September 27, 1975, shall be made available to the individual except that an accounting need not be made available if it relates to: (a) A disclosure with respect to which no accounting need be kept (see §103.30(c) of this part); (b) A disclosure made to a law enforcement agency pursuant to 5 U.S.C. 552a(b)(7); (c) An accounting which has been exempted from disclosure pursuant to 5 U.S.C. 552a (j) or (k).

§103.25 Notice of access decisions; time limits.

(a) Responsibility for notice. The system manager of the system from which information is sought or his delegate has responsibility for determining whether access to records is available under the Privacy Act and for notifying the individual of that determination in accordance with these regulations. If access is denied because of an exemption, the responsible person shall notify the individual that he may appeal that determination to the Deputy Attorney General within thirty working days of the receipt of the determination.

(b) Time limits for access determinations. The time limits provided by 28 CFR 16.45 shall be applicable to requests for access to information pursuant to the Privacy Act of 1974.

§103.26 Fees for copies of records.

The fees charged by the Service under the Privacy Act shall be those specified in 28 CFR 16.46. Remittances shall be made in accordance with §103.7(a) of this part.

§103.27 Appeals from denials of access.

An individual who has been denied access by the Service to the records concerning him may appeal that decision in the manner prescribed in 28 CFR 16.47.

§103.28 Requests for correction of records.

(a) How made. Unless a record is exempted from correction, an individual may request amendment or correction of a record concern

ing him by addressing his request to the system manager of the system in which the record is maintained either in person or by mail, his identity to be established as provided in §103.21 of this part. The request must indicate the particular record involved, the nature of the correction sought, and the justification for the correction or amendment. Requests made by mail should be addressed to the system manager at the address specified in the Notice of Systems of Records" published by the General Services Administration and shall be clearly marked on the request and on the envelope "Privacy Correction Request." Where the individual cannot determine the precise system manager or believes that the same record appears in more than one system, he may address his request to the office of the Associate Commissioner, Management, Immigration and Naturalization Service, 425 I Street NW, Washington, D.C. 20536, which shall assist him in identifying the system or systems in which the record is located.

(b) Initial determination. Within 10 working days of the receipt of the request, the appropriate Service official shall advise the individual that his request has been received. If the record is to be amended or corrected, the system manager may so advise the individual but if correction is refused, in whole or in part, it must be done by the head of the component in which the record is located, or his designee. If a correction is to be made, the individual shall be advised of his right to obtain a copy of the corrected record upon payment of the standard fee, established in 28 CFR 16.46. If a correction or amendment is refused, in whole or in part, the individual shall be so advised, shall be given reasons for the refusal, and shall be advised of his right to appeal to the Deputy Attorney General in accordance with the procedures set forth in 28 CFR 16.48.

(c) Appeals. A refusal, in whole or in part, to amend or correct a record may be appealed as provided in 28 CFR 16.48.

(d) Appeal determinations. 28 CFR 16.48 provides for appeal determinations.

(e) Statements of disagreement. Statements of disagreement may be furnished by the individual in the manner prescribed in 28 CFR 16.48.

(f) Notices of correction or disagreement. When a record has been corrected, the system manager shall, within thirty working days thereof, advise all prior recipients of the record whose identity can be determined pur