(8) Decisions on applications for waiver of certain grounds of excludability, as provided in § 212.7(a);

(9) Decisions on applications for waiver of the two-year foreign residence requirement, as provided in § 212.7 (c) of this chapter;

(10) Decisions on petitions for approval of schools, as provided in § 214.3;

(10a) Decisions by special inquiry officers in proceedings to withdraw the approval of petitions by schools, as provided in § 214.4(j);

(11) Decisions on petitions for temporary workers or trainees and fiancees or fiances of citizens of the United States, as provided in § 214.2;

(12) Decisions on applications for reentry permits, as provided in § 223.1;

(13) Decisions on applications for benefits of section 13 of the Act of September 11, 1957, as provided in § 245.3;

(14) Decisions on adjustment of status of certain resident aliens to nonimmigrants, as provided in § 247.12(b);

(15) Decisions on applications for change of nonimmigrant status, as provided in § 248.4 of this chapter.

(16) Decisions on applications to preserve residence of naturalization purposes, as provided in § 316a.21(c);

(17) Decision on applications for certificates of citizenship, as provided in § 341.6;

(18) Decisions on administrative cancellation of certificates, documents, or records, as provided in § 342.8;

(19) Decisions on applications for certificates of naturalization or repatriation, as provided in § 343.1;

(20) Decisions on applications for new naturalization or citizenship papers, as provided in § 343a.1 (c); and

(21) Decisions on applications for special certificates of naturalization, as provided in § 343b.11 (b).

(f) District directors. Under the executive direction of a regional commissioner (except district directors outside the United States who operate under the executive direction of the Assistant Commissioner, Special Projects), the grant or denial of any application or petition submitted to the Service, the initiation of any authorized proceeding in their respective districts, and the exercise of the authorities under §§ 242.1(a), 242.2(a), and 242.7 of this chapter without regard to geographical limitations. District directors outside the United States have all appellate jurisdiction specified in this chapter not reserved to

the Board of Immigration Appeals for matters arising in their respective districts. District directors outside the United States (except Mexico) have all appellate jurisdiction specified in this chapter not reserved to the Board of Immigration Appeals for matters arising in their respective districts.

(g) Officers in charge. The supervision of inspection at ports of entries and the authorizations of extensions of nonimmigrant admission period and of voluntary departure prior to the commencement of deportation hearings. Officers in Charge in Districts 33, 34, and 37 have the same powers with respect to petitions and applications submitted by citizens or aliens residing in their respective areas as are conferred on district directors in the United States. The officers in charge of the places enumerated in § 212.1(i) of this chapter have the authority to act on requests for waiver of visa and passport requirements under the provisions of section 212(d) (4) (A) of the Act. The officers in charge of the offices located in Frankfurt, Germany; Athens, Greece; Rome, Italy; Naples, Italy; Palermo, Italy; Vienna, Austria; Manila, Philippines; Tokyo, Japan; and Hong Kong, B.C.C., are authorized to perform the following functions: Authorize waivers of grounds of excludability under sections 212 (h) and (i) of the Act; adjudicate applications for permission to reapply for admission to the United States after deportation or removal if filed by an applicant for an immigrant visa in conjunction with an application for waiver of grounds of excludability under section 212 (h) or (i) of the Act, or if filed by an applicant for a nonimmigrant visa under section 101(a) (15) (K) of the Act; approve visa petitions for any immediate relative or preference status except third and sixth preferences; in cases in which the Department of State had delegated recommending power to the consular officer, approve recommendations made by consular officers for waiver of grounds of excludability in behalf of nonimmigrant visa applicants under section 212(d) (3) of the Act and concur in proposed waivers by consular officers of the requirement of visa or passport by a nonimmigrant on the basis of unforeseen emergency; exercise discretion to grant applications for the benefits of sections 211 and 212(c) of the Act; process Form I-90 applications and deliver duplicate Form I-151; extend reentry permits;

and process Form N-565 applications and deliver certificates issued thereunder. The officers in charge of the offices located in the following places are authorized to perform the following functions:

Athens-Authorize

Frankfurt-Authorize

conditional entry

under section 203 (a) (7) of the Act; conditional entry under section 203 (a) (7) of the Act;

Hamilton-Preinspection of passengers and crew on aircraft and surface vessels departing directly to the U.S. mainland;

Hong Kong-Authorize conditional entry under section 203 (a) (7) of the Act.

Montreal-Preinspection of passengers and crew of aircraft departing directly to the U.S. mainland and authorize waivers of grounds of excludability under sections 212 (h) and (i); also, approve applications for permission to reapply for admission to the United States after deportation or removal, when filed in conjunction with an application for waiver of grounds of excludability under section 212 (h) or (1) of the Act;

Nassau-Preinspection of passengers and crew on aircraft and surface vessels departing directly to the U.S. mainland;

Rome Authorize conditional entry under section 203 (a) (7) of the Act; and

Vienna-Authorize conditional entry under section 203 (a) (7) of the Act.

(h) Special inquiry officers. Following selection by the Commissioners, the exercise of the powers and duties in this chapter regarding the conduct of exclusion and expulsion hearings, proceedings for withdrawal of school approval, proceedings for rescission of adjustment of status, and such other proceedings which the Commissioner may assign them to conduct.

(i) Immigration officer. Any immigration inspector, immigration examiner, border patrol agent, airplane pilot, deportation officer, detention guard, investigator, general attorney (nationality), trial attorney (immigration) or supervisory officer of such employees is hereby designated as an immigration officer authorized to exercise the powers and duties of such officer as specified by the Act, or this chapter.

(j) Chief patrol agents. Under the executive direction of a regional commissioner, the Border Patrol activities of the Service within their respective sector areas, including exercise of the authority contained in section 242(b) of the Act to permit aliens to depart voluntarily from the United States prior to commencement of hearing.

[23 F.R. 9120, Nov. 26, 1958, as amended at 25 F.R. 581, Jan. 23, 1960; 26 F.R. 12212, Dec. 21, 1961; 29 F.R. 9660, July 17, 1964; 29 F.R.

11956, Aug. 21, 1964; 30 F.R. 5472, Apr. 16, 1965; 30 F.R. 14772, Nov. 30, 1965; 31 F.R. 5547, Apr. 8, 1966; 32 F.R. 9622, July 4, 1967; 32 F.R. 11628, Aug. 11, 1967; 33 F.R. 6232, Apr. 24, 1968; 33 F.R. 15200, Oct. 11, 1968; 33 F.R. 17135, Nov. 19, 1968; 34 F.R. 1007, Jan. 23, 1969; 35 F.R. 5958, Apr. 10, 1970; 35 F.R. 7284, May 9, 1970; 35 F.R. 16361, Oct. 20, 1970; 36 F.R. 316, Jan. 9, 1971; 36 F.R. 5835, Mar. 30, 1971; 36 F.R. 9001, May 18, 1971; 36 F.R. 11634, June 17, 1971; 37 F.R. 17462, 17463, Aug. 29, 1972]

§ 103.2 Applications, other documents.

petitions, and

(a) General. Every application, petition, or other document submitted on a form prescribed by this chapter shall be executed and filed in accordance with the instructions contained on the form, such instructions being hereby incorporated into the particular section of the regulations requiring its submission. The native form of a name may also be required if such a document has been executed in an anglicized version thereof. A parent, guardian, or other adult having a legitimate interest in a person who is under 14 years of age may file on such a person's behalf, and a guardian of a mentally incompetent person may file on such a person's behalf. Any required oath may be administered by an immigration officer or person generally authorized to administer oaths, including persons so authorized by Article 136 of the Uniform Code of Military Justice. Applications or petitions received in any Service office shall be stamped to show the time and date of their actual receipt and, unless otherwise specified in Part 204 or Part 245 of this chapter or returned because they are improperly executed, shall be regarded as filed when so stamped. An application or petition which is presented at an office of this Service by a travel agent, a notary public, or by any individual other than the applicant, petitioner, or an attorney or representative authorized and qualified to represent the applicant or petitioner pursuant to § 292.1 of this chapter, shall be disposed of in the same manner as an application or petition received through the mail. The person submitting the application or petition shall be advised that, since he is not regarded as the authorized representative of the applicant or petitioner, the applicant or petitioner will be notified directly regarding the action taken.

(b) Evidence-(1) Requirements. Each application or petition shall be accompanied by the documents required

by the particular section of the regulations under which submitted. Form I-134 may be used if an affidavit of support would be helpful in resolving any public charge aspect. All accompanying documents must be submitted in the original and will not be returned unless accompanied by a copy. Except as provided in §§ 204.2(f), 214.2 (h) (5), 214.2 (1) (2), and 214.2(k) of this chapter, a copy unaccompanied by an original will be accepted only if the accuracy of the copy has been certified by an immigration or consular officer who has examined the original. A foreign document must be accompanied by an English translation. The translator must certify that he is competent to translate, and that the translation is accurate. If any required documents are unavailable, church or school records, or other evidence pertinent to the facts in issue, may be submitted. If such documents are unavailable, affidavits may be submitted. The Service may require proof of unsuccessfull efforts to obtain documents claimed to be unavailable. The Service may also require the submission of additional evidence, including blood tests, may require the taking of testimony, and may direct the making of any necessary investigation. When any statement is taken from a person and that statement is signed by him, he shall be furnished a copy thereof, on request, without fee. Any allegations made in addition to, or in substitution for, those originally made shall be under oath and filed in the same manner as the original application, petition, or other document or noted on the original application, petition, or document and acknowledged under oath thereon. The status of an applicant or petitioner who claims that he is a lawful permanent resident alien of the United States will be verified from official records of the Service. Under the conditions hereinafter prescribed, the term 'official records,' as used herein, includes Service files, arrival manifests, arrival records, Service index cards. Immigrant Identification Cards, Certificates Registry, Declarations of Intention issued after July 1, 1929, Alien Registration Receipt Cards (Form AR-3, AR103, or I-151), passports, and reentry permits. To constitute an 'official record' the Service index card must bear a designated immigrant visa symbol and have been prepared in processing immigrant admissions or adjustments to perma

of

nent resident status. The other cards, certificates, declarations, permits, and passports must have been issued or have been endorsed by the Service to show admission for permanent residence. Except as otherwise provided in Part 101 of this chapter, and in the absence of countervailing evidence, such official records shall be regarded as establishing lawful admission for permanent residence.

(2) Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as hereinafter provided. If the decision will be adverse to the applicant or petitioner on the basis of derogatory evidence considered by the Service and of which the applicant or petitioner is unaware, he shall be advised thereof and offered an opportunity to rebut it and present evidence in his behalf before the decision is rendered, except that classified evidence shall not be made available to him. Any explanation, rebuttal, or evidence presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding. A determination of statutory ineligibility shall not be valid unless based on evidence contained in the record of proceeding. In exercising discretionary power when considering an application or petition, the district director or the officer in charge, in any case in which he is authorized to make the decision, may consider and base his decision upon information not contained in the record and not made available for inspection by the applicant or petitioner, provided the regional commissioner has determined that such information is classified under Executive Order No. 11652 of March 8, 1972 (37 F.R. 5209, March 10, 1972; effective June 1, 1972), that it is relevant to the disposition of the case and, in his discretion, has concluded that its disclosure would be prejudicial to the national security and safety. If the decision of the district director or officer in charge is based in whole or in part upon information not contained in the record, the decision shall so state and cite the authority therefor.

[29 F.R. 11956, Aug. 21, 1964, as amended at 30 F.R. 14772, Nov. 30, 1965; 31 F.R. 535, Jan. 15, 1966; 32 F.R. 9622, July 4, 1967; 33 F.R. 7751, May 28, 1968; 33 F.R. 11644, Aug. 16, 1968; 36 F.R. 13676, July 23, 1971; 37 F.R. 8523, Apr. 28, 1972; 37 F.R. 12379, June 23, 1972]

§ 103.3 Denials, appeals, and precedent decisions.

(a) Denials and appeals. Whenever a formal application or petition filed under § 103.2 is denied, the applicant shall be given written notice setting forth the specific reasons for such denial. If the notification is made on Form I-292, the signed duplicate thereof constitutes the order of denial. When the applicant is entitled to appeal to another Service officer, the notice shall advise him that he may appeal from the decision, and that such appeal may be taken within 15 days after the service of the notification of decision, accompanied by a supporting brief if desired and a fee of $25, by filing Notice of Appeal, Form I-290B, which shall be furnished with the written notice. For good cause shown, the time within which the brief may be submitted may be extended. The party taking the appeal may, prior to appellate decision, file a written withdrawal of such appeal. An appeal, cross-appeal, answers thereto and accompanying brief, if any, shall become part of the record of proceeding and, if filed by an officer of the Service, a copy shall be served on the party affected.

(b) Dismissal of appeals. Notwithstanding the provisions of paragraph (c) of this section, the officer to whom an appeal is taken may deny oral argument and dismiss any appeal when (1) the party concerned fails to specify the reasons for his appeal, or (2) the appeal is patently frivolous.

(c) Oral argument. If an appeal is taken, request for oral argument, if desired, shall be included in the notice of appeal. The officer to whom the appeal is taken shall have the authority to designate the time, date, and place where oral argument may be heard. Oral argument may be heard by the officer to whom the appeal is taken or by an officer designated by him.

(d) Decisions on appeal. The decision of the Service officer considering the appeal shall be in writing and a copy thereof shall be served upon the applicant, petitioner, or other party affected, or his attorney or representative of record.

(e) Precedent decisions. In addition to the decisions of the Attorney General and the Board, referred to in § 3.1(g) of this chapter, Service officers' decisions selected by the Commissioner shall serve as precedents in all proceedings involv

ing the same issue or issues and, except as they may be modified or overruled by subsequently selected decisions, shall be binding on all officers and employees of the Service in the administration of the Act. All such decisions shall be published and made available to the public in the manner provided in § 103.9(a). [31 F.R. 3062, Feb. 24, 1966, as amended at 32 F.R. 9622, July 4, 1967; 37 F.R. 927, Jan. 21, 1972; 37 F.R. 11470, June 8, 1972] § 103.4 Certifications.

The Commissioner, regional commissioners, associate commissioners, deputy associate commissioners, assistant commissioners, and district directors outside the United States, within their respective areas of responsibility, may direct that any case or classes of cases be certified for decision. District directors in the United States and officers in charge in Districts 33, 34, and 37 may certify their decisions to the appellate authority designated in this chapter when the case involves an unusually complex or novel question of law or fact. The alien or other party affected shall be given notice on Form I-290C of such certification and of his right to submit a brief within 10 days from receipt of the notice. Cases within the appellate jurisdiction of the Service shall be certified only after an initial decision has been made. In cases within § 3.1(b) of this chapter, the decision of the officer to whom certified, whether made initially or upon review, shall constitute the base decision of the Service from which an appeal may be taken to the Board in accordance with the applicable parts of this chapter. The decision of the Service officer to whom the case has been certified shall be in writing and a copy thereof shall be served upon the applicant, petitioner, or other party affected, or his attorney or representative of record.

[29 F.R. 12583, Sept. 4, 1964, as amended at 32 F.R. 15469, Nov. 7, 1967; 33 F.R. 15200, Oct. 11, 1968; 33 F.R. 17136, Nov. 19, 1968] § 103.5 Reopening or reconsideration.

Except as otherwise provided in Part 242 of this chapter, a proceeding authorized under this chapter may be reopened or the decision made therein reconsidered for proper cause upon motion made by the party affected and granted by the officer who has jurisdiction over the proceeding or who made the decision. When the alien is the

moving party, a motion to reopen or a motion to reconsider shall be filed in duplicate, accompanied by a supporting brief, if any, and the appropriate fee specified by and remitted in accordance with the provisions of § 103.7, with the district director in whose district the proceeding was conducted for transmittal to the officer having jurisdiction. When an officer of the Service is the moving party, a copy of the motion shall be served on the alien or other party in interest and the motion, together with proof of service, shall be filed directly with the officer having jurisdiction. The party opposing the motion shall have 10 days from the date of service thereof within which he may submit a brief, which period may be extended. If the officer who originally decided the case is unavailable, the motion may be referred to another officer. A motion to reopen shall state the new facts to be proved at the reopened proceeding and shall be supported by affidavits or other evidentiary material. A motion to reconsider shall state the reasons for reconsideration and shall be supported by such precedent decisions as are pertinent. Motions to reopen or reconsider shall state whether the validity of the order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. Rulings upon motions to reopen or motions to reconsider shall be by written decision. The filing of a motion to reopen or a motion to reconsider or of a subsequent application after notice of denial shall not, unless the Service directs otherwise, serve to stay the execution of any decision made in the case or to extend a previously set departure date.

(27 F.R. 7562, Aug. 1, 1962, as amended at 30 F.R. 12772, Oct. 7, 1965; 32 F.R. 271, Jan. 11, 1967]

by ordinary mail addressed to a person at his last known address.

(2) Personal service. Personal service, which shall be performed by a Government employee, consists of any of the following, without priority or preference:

(i) Delivery of a copy personally;

(ii) Delivery of a copy at a person's dwelling house or usual place of abode by leaving it with some person of suitable age and discretion;

(iii) Delivery of a copy at the office of an attorney or other person, including a corporation, by leaving it with a person in charge;

(iv) Mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address.

(b) Effect of service by mail. Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.

(c) When personal service required(1) Generally. In any proceeding which is initiated by the Service, with proposed adverse effect, service of the initiating notice and of notice of any decision by a Service officer shall be accomplished by personal service.

(2) Persons confined, minors, and incompetents (i) Persons confined. If a person is confined in a penal or mental institution or hospital and is competent to understand the nature of the proceedings initiated against him, service shall be made both upon him and upon the person in charge of the institution or the hospital. If the confined person is not competent to understand, service shall be made only on the person in charge of the institution or hospital in which he is confined, such service being deemed service on the confined person.

(ii) Incompetents and minors. In case of mental incompetency, whether or not confined in an institution, and in the case of a minor under 14 years of age, service shall be made upon the person with whom the incompetent or the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.

(d) When personal service not required. Service of other types of papers