8 C.F.R. § 1208.31

Reasonable fear of persecution or torture determinations involving aliens ordered removed under section 238(b) of the Act and aliens whose removal is reinstated under section 241(a)(5) of the Act

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(a) Jurisdiction. This section shall apply to any alien ordered removed under section 238(b) of the Act or whose deportation, exclusion, or removal order is reinstated under section 241(a)(5) of the Act who, in the course of the administrative removal or reinstatement process, expresses a fear of returning to the country of removal. The Service has exclusive jurisdiction to make reasonable fear determinations, and EOIR has exclusive jurisdiction to review such determinations.

(b)-(d) [Reserved]

(e) Referral to Immigration Judge. If an asylum officer determines that an alien described in this section has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form I-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only. Such cases shall be adjudicated by the immigration judge in accordance with the provisions of § 1208.16. Appeal of the immigration judge's decision shall lie to the Board of Immigration Appeals.

(f) Removal of aliens with no reasonable fear of persecution or torture. If the asylum officer determines that the alien has not established a reasonable fear of persecution or torture, the asylum officer shall inform the alien in writing of the decision and shall inquire whether the alien wishes to have an immigration judge review the negative decision, using the Record of Negative Reasonable Fear Finding and Request for Review by Immigration Judge, on which the alien must indicate whether he or she desires such review. If the alien refuses to make an indication, DHS shall consider such a response as a decision to decline review.

(g) Review by immigration judge. The asylum officer's negative decision regarding reasonable fear shall be subject to de novo review by an immigration judge upon the alien's request. The immigration judge's review shall, where relevant, include review of the asylum officer's application of any bars to withholding of removal pursuant to 8 CFR 208.31(c). If the alien requests review of the asylum officer's negative decision regarding reasonable fear, the asylum officer shall serve the alien with a Form I-863, Notice of Referral to Immigration Judge. The record of determination, including copies of the Form I-863, Notice of Referral to Immigration Judge, the asylum officer's 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. In the absence of exceptional circumstances, such review shall be conducted by the immigration judge within 10 days of the filing of the Form I-863, Notice of Referral to Immigration Judge, and the complete record of determination with the immigration court. Upon review of the asylum officer's negative reasonable fear determination:

(1) If the immigration judge concurs with the asylum officer's determination that the alien does not have a reasonable fear of persecution or torture, the case shall be returned to DHS for removal of the alien. No appeal shall lie from the immigration judge's decision.

(2) If the immigration judge finds that the alien has a reasonable fear of persecution or torture, the alien may submit an Application for Asylum and for Withholding of Removal. Such application shall be considered de novo in all respects by an immigration judge regardless of any determination made under this paragraph.

(i) The immigration judge shall consider only the alien's application for withholding of removal under 8 CFR 1208.16 and shall determine whether the alien's removal to the country of removal must be withheld or deferred.

(ii) Appeal of the immigration judge's decision whether removal must be withheld or deferred lies with the Board of Immigration Appeals. If the alien or DHS appeals the immigration judge's decision, the Board shall review only the immigration judge's decision regarding the alien's eligibility for withholding or deferral of removal under 8 CFR 1208.16.

[64 FR 8493, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999, as amended at 85 FR 80400, Dec. 11, 2020; 89 FR 105402, Dec. 27, 2024; 90 FR 41889, Aug. 28, 2025]

Notes of Decisions

Cited in 177 cases (65 in the last 5 years), 2010–2026 · leading case: Rony Perez-Guzman v. Loretta E. Lynch, 835 F.3d 1066 (9th Cir. 2016).

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Rony Perez-Guzman v. Loretta E. Lynch, 835 F.3d 1066 (9th Cir. 2016). · cites it 16× “See 8 C.F.R. § 1208.31 (e).” B. Legal Background Perez’s claim turns on the interplay between two provisions of the INA — 8 U.”

Sonia Calla Mejia v. Jefferson Sessions III, 866 F.3d 573 (4th Cir. 2017). · cites it 17× “” 8 C.F.R. § 1208.31 (e). 4 Appeal of the IJ’s decision as to the request for withholding of removal lies with the Board of Immigration 4 This regulation was originally promulgated as 8 C.”

Yoselin Martinez Cazun v. Attorney Gen. United State, 856 F.3d 249 (3rd Cir. 2017). · cites it 10× “(emphasis added) (citing 8 C.F.R. §§ 1208.31 (e), 1208.31(g)(2); 1241.”

Rafael Guerrero-Sanchez v. Warden York Cnty. Prison, 905 F.3d 208 (3rd Cir. 2018). · cites it 4× “See 8 C.F.R. § 1208.31 (e). Guerrero-Sanchez subsequently initiated withholding- only proceedings before the Immigration Court, seeking an order either withholding his removal to Mexico pursuant to 8 U.”

Santos Iraheta-Martinez v. Merrick Garland, 12 F.4th 942 (9th Cir. 2021). · cites it 4× “See 8 C.F.R. § 1208.31 (e) (limiting such proceedings to “consideration of the request for withholding of removal only”).”

Jesus Delgado-Arteaga v. Jeff Sessions, 856 F.3d 1109 (7th Cir. 2017). · cites it 7× “§ 1228 (b) and a corresponding regulation, 8 C.F.R. § 1208.31 (g)(2)(i). He also claims that the Board committed various legal errors.”

Edil Galeas Figueroa v. Attorney Gen. United States, 998 F.3d 77 (3rd Cir. 2021). · cites it 2× “5 During a reasonable-fear interview, see 8 C.F.R. § 1208.31 , Galeas Figueroa again expressed fear of returning to Honduras.”

Garcia-Garcia v. Sessions, 856 F.3d 27 (1st Cir. 2017). · cites it 2× “(emphasis added); see also 8 C.F.R. § 1208.31 (e).5 Thus, under the regulations, an alien subject to a reinstated order of removal may not apply for asylum.”

Mendoza-Ordonez v. Attorney Gen. of the United States, 869 F.3d 164 (3rd Cir. 2017). · cites it 2× “Because we will grant Mendoza’s petition for review on his withholding of removal claim arising from the INA, we clarify that, as we recently held, 8 C.F.R. § 1208.31 does not bar withholding of removal for aliens' who are under a reinstated removal order.”

Tomas Bartolome v. Jefferson Sessions, III, 904 F.3d 803 (9th Cir. 2018). “See 8 C.F.R. § 1208.31 (g) (requiring a hearing be conducted within “10 days”); see also § 208.”

Jose Alanniz v. William Barr, 924 F.3d 1061 (9th Cir. 2019). “7 Alanniz’s reliance on 8 C.F.R. § 1208.31 (c) is misplaced. The regulation addresses the scope of an application for asylum, but does not allow an applicant to reassert before us an issue he did not raise before the BIA.”

R-S-C v. Sessions, 869 F.3d 1176 (10th Cir. 2017). · cites it 3× “8 C.F.R. § 1208.31 (e), (g)(2)(i). R-S-C illegally reentered the United States after having been removed and her prior removal order was reinstated, thus under the Attorney General’s interpretation of the INA, she cannot apply for asylum.”

Show all 177 citing cases →

— 8 C.F.R. § 1208.31(c) — 1 case

Ledesma v. Garland (2d Cir. 2021).

— 8 C.F.R. § 1208.31(e) — 2 cases

Edil Galeas Figueroa v. Attorney Gen. United States, 998 F.3d 77 (3rd Cir. 2021). “5 During a reasonable-fear interview, see 8 C.F.R. § 1208.31 , Galeas Figueroa again expressed fear of returning to Honduras.”

Edil Galeas Figueroa v. Attorney Gen. United States (3rd Cir. 2021).

— 8 C.F.R. § 1208.31(g) — 1 case

Cruz-Medina (D. Maryland 2025).

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