235.6

235.7

Referral to special inquiry officer. Referral of certain cases to district director.

235.8 Temporary exclusion.

AUTHORITY: The provisions of this Part 235 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 101, 212, 213, 221, 234, 235, 236, 237, 238, 242, 66 Stat. 166, 182, as amended, 188, 191, 198, 200, 201, 202, 208, as amended; 8 U.S.C. 1101, 1182, 1183, 1201, 1224, 1225, 1226, 1227, 1228, 1252.

§ 235.1 General qualifications.

The following general qualifications and requirements shall be met by an alien seeking to enter the United States regardless of whether he seeks to enter for permanent, indefinite, or temporary stay, and regardless of the purpose for which he seeks to enter: he shall apply in person at a place designated as a port of entry for aliens at a time when the immigration office at the port is open for inspection; he shall make his application in person to an immigration officer and shall present whatever documents are required; and he shall establish to the satisfaction of the immigration officer that he is not subject to exclusion under the immigration laws, Executive orders, or Presidential proclamations and is entitled under all of the applicable provisions of the immigration laws and this chapter to enter the United States. For the purpose of this part, any coming to a United States port from a foreign port, from an outlying possession of the United States, from Guam, Puerto Rico, or the Virgin Islands of the United States or from another port of the United States at which examination under this part was not completed shall be regarded as an arrival. Any persons (including an alien crewman) passing through the Canal Zone on board a vessel which enters and clears at a Canal Zone port only to transit that Zone, to refuel, or to land passengers or crewmen for medical treatment, shall not be regarded as coming from a foreign port solely by reason of such passage.

[22 F.R. 9791, Dec. 6, 1957, as amended at 23 F.R. 9123, Nov. 26, 1958; 24 F.R. 6477, Aug. 12, 1959]

§ 235.2 Examination postponed.

Whenever an alien on arrival is found or believed to be suffering from a disability which renders it impractical to proceed with the examination under the act, the examination of such alien, members of his family concerning whose admissibility it is necessary to have such alien testify, and any accompanying aliens whose protection or guardianship will be required should such alien be found inadmissible shall be deferred for such time and under such conditions as the district director in whose district the port is located imposes.

[22 F.R. 9791, Dec. 6, 1957]

All persons arriving at a port in the United States by vessel or aircraft shall be detained aboard the vessel or at the airport of arrival by the master, commanding officer, purser, person in charge, agent, owner, or consignee of such vessel or aircraft until admitted or otherwise permitted to land by an officer of the Service. Notice or order to so detain shall not be required.

[22 F.R. 9791, Dec. 6, 1957] § 235.4

Notations on documents.

The admitting examining officer shall by means of a stamp record in each passport required to be presented the word "Admitted" and the date and place of admission and shall record the same information on any immigrant visa, reentry permit, or Form I-94 presented by or prepared for an arriving admitted alien. One copy of the Form I-94, so endorsed, shall be returned to the admitted alien by whom it was presented or for whom it was prepared for his retention while in the United States and for surrender at the time of his departure from the United States, except that the copy of the I-94 shall be delivered to a representative of the carrier which brought him in the case of each alien who is authorized direct transit through the United States under section 238 (d) of the act. [22 F.R. 9791, Dec. 6, 1957]

such places or to one of the States of the United States or the District of Columbia, the examination required by the act of the passengers and crew may be made prior to the departure of the aircraft, and in such event, final determination of admissibility shall be made immediately prior to such departure. The examination shall be conducted in accordance with sections 234, 235, 236, and 237 of the act and this part and Parts 236 and 237 of this chapter, except that if it appears to the examining immigration officer that any person in the United States being examined under this section is prima facie deportable from the United States, further action with respect to his examination shall be deferred and further proceedings conducted as provided in section 242 of the act and Part 242 of this chapter. When the foregoing inspection procedure is applied to any aircraft, persons examined and found admissible shall be placed aboard the aircraft, or kept at the airport separate and apart from the general public until they are permitted to board the aircraft. No other person shall be permitted to depart on such aircraft until and unless he is found to be admissible as provided in this section.

(b) In contiguous territory and adjacent islands. On and after December 24, 1952, in the case of any aircraft or vessel proceeding directly from a port or place in foreign contiguous territory or adiacent islands to a port of entry in the United States, the examination and inspection of passengers and crew required by the act and final determination of admissibility may be made immediately prior to such departure at the port or place in foreign contiguous territory or adjacent islands and shall have the same effect under the act as though made as the destined port of entry in the United States.

[23 F.R. 3997, June 7, 1958, as amended at 24 F.R. 2583, Apr. 3, 19591

If the alien is unable to read or understand the notice, it shall be read and explained to him by an employee of the Service, through an interpreter, if necessary, prior to such further inquiry.

(b) Certification for mental condition; medical appeal. An alien certified under paragraph (1), (2), (3), (4), or (5) of section 212(a) of the Act shall be advised by the examining immigration officer that he may appeal to a board of medical officers of the United States Public Health Service pursuant to section 234 of the Act. If such an appeal is taken, the district director shall arrange for the convening of the medical board.

[24 F.R. 6477, Aug. 12, 1959]

§ 235.7 Referral of certain cases to district director.

If the examining immigration officer has reason to believe that the cause of an alien's excludability can readily be removed by the posting of a bond in accordance with section 213 of the Act, or by the exercise of section 211, section 212(d) (3) or (4), or section 212 (c) of the Act, or by granting permission to reapply for admission after deportation or removal, he may in lieu of detaining the alien for hearing in accordance with section 235(b) and section 236 of the Act refer the alien's case to the district director within whose district the port is located for consideration of such action and defer further examination pending the district director's decision. Refusal of a district director to authorize admission under section 213, or to grant an application for the benefits of section 211, section 212(d) (3) or (4), or section 212 (c), or to grant permission to reapply for admission after deportation or removal shall be without prejudice to the renewal of such application or the authorizing of such admission by the special inquiry officer without additional fee.

[28 F.R. 4251, Apr. 30, 1963]

§ 235.8 Temporary exclusion.

(a) Report. Any immigration officer who temporarily excludes an alien under the provisions of section 235 (c) of the act shall report such action promptly to the district director having administrative jurisdiction over the port at which such alien arrived. If the subject of the report is an alien who seeks to enter the United States other than under section

101 (a) (15) (D) of the act, the report shall be forwarded by the district director to the regional commissioner and further action shall be taken thereon as provided in paragraph (b) of this section.

(b) Action by regional commissioner. If the regional commissioner is satisfied that the alien is inadmissible to the United States under paragraph (27), (28), or (29) of section 212 (a) of the act and if the regional commissioner, in the exercise of his discretion, concludes that such inadmissibility is based on information of a confidential nature the disclosure of which would be prejudicial to the public interest, safety, or security, he may deny any hearing or further hearing by a special inquiry officer and order such alien excluded and deported, or enter such other order in the case as he deems appropriate. In any other case the regional commissioner may direct that an immigration officer shall further examine the alien as to his admissibility or that the alien be given a hearing or further hearing before a special inquiry officer.

(c) Finality of decision. The decision of the regional commissioner provided for in paragraph (b) of this section shall be final and no appeal may be taken therefrom. The decision of the regional commissioner shall be in writing, signed

by him and, unless it contains confidential matter, a copy shall be served on the alien. If the decision contains confidential matter, a separate order showing only the ultimate disposition of the case shall be signed by the regional commissioner and served on the alien.

(d) Hearing by special inquiry officer. If the regional commissioner directs that an alien temporarily excluded be given a hearing or further hearing before a special inquiry officer, such hearing and all further proceedings in the case shall be conducted in accordance with the provisions of section 236 and other applicable sections of the act to the same extent as though the alien had been referred to a special inquiry officer by the examining immigration officer; except, that if confidential information, not previously considered in the case, is adduced supporting the exclusion of the alien under paragraph (27), (28), or (29) of section 212 (a) of the act, the disclosure of which, in the discretion of the special inquiry officer, may be prejudicial to the public interest, safety, or security, the special inquiry officer may again temporarily exclude the alien under the authority of section 235 (c) of the act and further action shall be taken as provided in this section.

[22 F. R. 9791, Dec. 6, 1957; 22 F. R. 9519, Nov. 28, 1957]

PART 236-EXCLUSION OF ALIENS Sec.

236.1 Authority of special inquiry officers. 236.2 Hearing.

236.3 Decision of the special inquiry officer; notice to the applicant.

236.4 Finality of order. 236.5 Appeals.

236.6 Fingerprinting of excluded aliens.

AUTHORITY: The provisions of this Part 236 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Intepret or apply secs. 212, 234, 235, 236, 292, 66 Stat. 182, as amended, 198, 200, 235; 8 U.S.C. 1182, 1224, 1225, 1226, 1362.

§ 236.1 Authority of special inquiry officers.

In determining cases referred for further inquiry as provided in section 235 of the act, special inquiry officers shall have the powers and authority conferred upon them by the act and this chapter. Subject to any specific limitation prescribed by the act and this chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the act as is appropriate and necessary for the disposition of such cases.

[23 F.R. 2671, Apr. 23, 1958]

(a) Opening. The special inquiry officer shall ascertain whether the applicant for admission is the person to whom Form I-122 was previously delivered by the examining immigration officer as provided in Part 235 of this chapter; enter a copy of such form in evidence as an exhibit in the case; inform the applicant of the nature and purpose of the hearing; advise him of the privilege of being represented by an attorney or other representative qualified under Part 292 of this chapter, and request him to state then and there whether he desires representation; advise him that he will have a reasonable opportunity to present evidence in his own behalf, to examine and object to evidence against him, and to cross-examine witnesses presented by the Government; and place the applicant under oath.

(b) Procedure. The special inquiry officer shall receive and adduce material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.

(c) Trial attorney. The district director in his discretion may assign an immigration officer to a proceeding under this part to perfom the duties of a trial attorney in behalf of the Government. Such duties shall include, but are not limited to, the presentation of evidence and the interrogation, examination, and cross-examination of the applicant and other witnesses. Nothing contained herein shall be construed to diminish the authority conferred upon the special inquiry officer in conducting proceedings under this part.

(d) Depositions. The procedures specified in § 242.14(e) of this chapter shall apply.

(e) Record. The hearing before the special inquiry officer, including the testimony and exhibits, the special inquiry officer's decision, and all written orders, motions, appeals, and other papers filed in the proceeding shall constitute the record in the case. The hearing shall be recorded verbatim except for statements made off the record with the permission of the special inquiry officer. [23 F.R. 2671, Apr. 23, 1958, as amended at 23 F.R. 9123, Nov. 26, 1958; 24 F.R. 6477, Aug. 12, 1959; 27 F.R. 9646, Sept. 29, 1962; 29 F.R. 13242, Sept. 24, 1964]

§ 236.3

Decision of the special inquiry officer; notice to the applicant.

(a) Contents. The decision of the special inquiry officer may be oral or written. It shall include a summary of the evidence adduced and shall set forth findings of fact and conclusions of law as to excludability. The decision shall be concluded with the order of the special inquiry officer.

(b) Oral decision. An oral decision shall be stated for the record by the special inquiry officer at the conclusion of the hearing and in the presence of the applicant. When entitled to appeal from an adverse decision of the special inquiry officer, the applicant shall be so advised and shall be required to state then and there whether he wishes to appeal. At his request, the applicant shall be furnished with a typewritten transcript of the oral decision of the special inquiry officer.

(c) Written decision. When the decision of the special inquiry officer is in writing, the district director shall serve a signed copy thereof on the applicant, together with the notice referred to in § 3.3 of this chapter.

[23 F.R. 2671, Apr. 23, 1958, as amended at 23 F.R. 9123, Nov. 26, 1958]

§ 236.4 Finality of order.

The order of the special inquiry officer shall be final except when a case has been certified as provided in Part 3 or Part 103 of this chapter, or when an appeal is taken to the Board of Immigration Appeals. When the order of the special inquiry officer is to admit the applicant, the special inquiry officer shall place him on notice that the decision is subject to appeal by the district director as provided in § 236.5(c).

[23 F.R. 2671, Apr. 23, 1958, as amended at 23 F.R. 9123, Nov. 26, 1958]

§ 236.5 Appeals.

(a) In general. Pursuant to Part 3 of this chapter, an appeal shall lie to the Board of Immigration Appeals from a decision of the special inquiry officer under this part, except as limited by section 236(d) of the act.

(b) By applicant. When the applicant states that he wishes to appeal from

the special inquiry officer's oral decision, he shall be required then and there to submit completed Form I-290A. At his request, the applicant shall be allowed 10 days from the date of the oral decision in which to file a brief. An appeal from the special inquiry officer's written decision shall be taken within 13 days after mailing.

(c) By district director. The district director may, within 5 days from date of decision, appeal from an order of the special inquiry officer to admit the applicant. The applicant shall be notified in writing when an appeal is taken by the district director and advised that he will be allowed 5 days from receipt of notification in which to submit written representations for transmittal to the Board with the record in the case.

[23 F.R. 2671, Apr. 23, 1958, as amended at 24 F.R. 2584, Apr. 2, 1959; 29 F.R. 7236, June 3, 1964]

§ 236.6 Fingerprinting

aliens.

of excluded

Every alien 14 years of age or older who is excluded from admission to the United States by a special inquiry officer shall be fingerprinted, unless during the preceding year he has been fingerprinted at an American consular office. [23 F.R. 2671, Apr. 23, 1958]