The Board of Immigration Appeals has determined that the regulation contained at 8 C.F.R. § 1240.17 does not apply to an asylum applicant who initially received a negative credible fear determination which was overturned by an Immigration Judge. The Board noted that the regulation only applies to those applicants initially placed in expedited removal proceedings and whose asylum applicant was initially adjudicated by the asylum officer. “The respondent is not included in the category of individuals covered by the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in expedited removal proceedings and USCIS did not adjudicate his asylum application.”
Although USCIS did not adjudicate this individual’s asylum application in the first instance, the Board’s finding that he was not initially placed in expedited removal proceedings is curious, as the agency has long considered a person going through the credible fear process to be subject to an expedited removal order until a positive credible fear determination is made.
The full text of Matter of F-C-S- can be found here:
https://www.justice.gov/d9/2024-03/4074.pdf
The Board of Immigration Appeals has issued an amended opinion recognizing that F-C-S- was placed in expedited removal proceedings, but reaffirming that the regulation at issue only applies to asylum applications initially adjudicated by USCIS:
https://www.justice.gov/d9/2024-04/4074_amended.pdf
The Board of Immigration Appeals issued another amended opinion clarifying the procedural history of the case: