(a) Jurisdiction. This section shall apply to any noncitizen 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 a noncitizen described in this section has a reasonable fear of persecution or torture, the officer shall so inform the noncitizen 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 noncitizens with no reasonable fear of persecution or torture. If the asylum officer determines that the noncitizen has not established a reasonable fear of persecution or torture, the asylum officer shall inform the noncitizen in writing of the decision and shall inquire whether the noncitizen 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 noncitizen must indicate whether he or she desires such review. If the noncitizen 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 noncitizen'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 noncitizen requests review of the asylum officer's negative decision regarding reasonable fear, the asylum officer shall serve the noncitizen 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 noncitizen does not have a reasonable fear of persecution or torture, the case shall be returned to DHS for removal of the noncitizen. No appeal shall lie from the immigration judge's decision.

(2) If the immigration judge finds that the noncitizen has a reasonable fear of persecution or torture, the noncitizen 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 noncitizen's application for withholding of removal under 8 CFR 1208.16 and shall determine whether the noncitizen'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 noncitizen or DHS appeals the immigration judge's decision, the Board shall review only the immigration judge's decision regarding the noncitizen's eligibility for withholding or deferral of removal under 8 CFR 1208.16.