Imagini ale paginilor
PDF
ePub
[blocks in formation]

AUTHORITY: The provisions of this Part 242 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 242, 244, 292, 66 Stat. 208, as amended, 214, 235; 8 U.S.C. 1252, 1254, 1362. § 242.1 Order to show cause and notice of hearing.

(a) Commencement. Every proceeding to determine the deportability of an alien in the United States is commenced by the issuance and service of an order to show cause by the Service. In the proceeding the alien shall be known as the respondent. Orders to show cause may be issued by district directors, acting district directors, deputy district directors, and officers in charge at Albany, N.Y.; Cincinnati, Ohio; Dallas, Tex.; Hammond, Ind.; Houston, Tex.; Milwaukee, Wis.; Ogdensburg, N.Y.; Pittsburgh, Pa.; Providence, R.I.; San Diego, Calif.; Salt Lake City, Utah; St. Louis, Mo.; Spokane, Wash.

(b) Statement of nature of proceeding. The order to show cause will contain a statement of the nature of the proceeding, the legal authority under which the proceeding is conducted, a concise statement of factual allegations informing the respondent of the acts or conduct alleged to be in violation of the law, and a designation of the charges against the respondent and of the statutory provisions alleged to have been violated. The order will require the respondent to show cause why he should not be deported. The order will call upon the respondent to appear before a special inquiry officer for hearing at a time and place stated in the order, not less than seven days, after the service of such order, except that where the issuing officer, in his discretion, believes that the public interest, safety, or security so requires, he may provide in the order for a shorter period. The issuing officer may, in his discretion, fix a shorter period in any other case at the request of and for the convenience of the respondent.

(c) Service. Service of the order to show cause shall be made by having a copy delivered to the respondent by an immigration officer or by mailing it to the respondent at his last known address by certified or registered mail, return receipt requested. Delivery of a copy within this rule means: handing it to the respondent or leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. The post office return receipt or the certificate by the officer serving the order by personal delivery setting forth the manner of said service shall be proof of service.

[22 F.R. 9796, Dec. 6, 1957, as amended at 28 F.R. 9504, Aug. 30, 1963]

[blocks in formation]

rant may be issued by no one other than a district director, acting district director, or deputy district director, and then only whenever, in his discretion, it appears that the arrest of the respondent is necessary or desirable. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any district director, acting district director, or deputy district director may authorize its cancellation.

(b) Authorized officer. A district director, acting district director, or deputy district director may exercise the authority contained in section 242 of the Act to continue or detain an alien in, or release him from, custody, to determine whether an alien shall be released under bond, and the amount thereof, if any, and shall promptly notify the alien in writing of any determination made in his case. The alien may appeal to the Board of Immigration Appeals from any such determination. Such appeal shall be taken by filing a notice of appeal with the district director within 5 days after the date when written notification of the determination is delivered in person or mailed to the alien. Upon the filing of such a notice of appeal, the district director shall immediately transmit to the Board of Immigration Appeals all records and information pertaining to his action and shall notify the regional commissioner. The filing of such an appeal shall not operate to disturb the custody of the alien or to stay the administrative proceedings or deportation. The foregoing provisions concerning notice, reporting, and appeal shall not apply when the Service notifies the alien that it is ready to execute the order of deportation and takes him into custody for that purpose.

(c) Revocation. When an alien who having been arrested and taken into custody has been released, such release may be revoked at any time in the discretion of the district director, acting district director, or deputy district director, in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and cancelled.

(d) Supervision. Until an alien against whom a final order of deportation has been outstanding for more than six months is deported, he shall be subject to supervision by a district director,

acting district director, or deputy district lirector, and required to comply with the provisions of section 242 (d) of the Act relating to his availability for deportation.

[28 F.R. 8280, Aug. 13, 1963]

§ 242.3

Aliens confined to institutions; incompetents, minors.

(a) Service. If the respondent is confined in a penal or mental institution or hospital and is competent to understand the nature of the proceedings, a copy of the order to show cause, and the warrant of arrest, if issued, shall be served upon him and upon the person in charge of the institution or hospital. If the respondent is not competent to understand the nature of the proceedings, a copy of the order to show cause, and the warrant of arrest, if issued, shall be served only upon the person in charge of the institution or hospital in which the respondent is confined, such service being deemed service upon the respondent. In case of mental incompetency, whether or not confined in an institution, and in the case of a child under 16 years of age, a copy of the order and of the warrant of arrest, if issued, shall be served upon such respondent's guardian, near relative, or friend, whenever possible.

(b) Service custody; cost of maintenance. An alien confined in an institution or hospital shall not be accepted into physical custody by the Service until an order of deportation has been made and the Service is ready to deport the alien. When an alien is an inmate of a public or private institution at the time of the commencement of the deportation proceedings, expense for the maintenance of the alien shall not be incurred by the Government until he is taken into physical custody by the Service.

[22 F.R. 9796, Dec. 6, 1957]

§ 242.4 Fingerprints and photographs.

Every alien 14 years of age or older against whom proceedings are commenced under this part shall be fingerprinted. Any such alien, regardless of his age, shall be photographed if a photograph is required by the district director, acting district director, deputy district director, or officer in charge authorized to issue an order to show cause. [28 F.R. 9504, Aug. 30, 1963]

§ 242.5 Voluntary departure prior to commencement of hearing.

(a) Authorized officers. The authority contained in section 242(b) of the act to permit aliens to depart voluntarily from the United States may be exercised by district directors, district officers who are in charge of investigations, officers in charge, and chief patrol inspectors.

(b) Application. Any alien who believes himself to be eligible for voluntary departure under section 242(b) of the Act may apply therefor at any office of the Service any time prior to the commencement of deportation proceedings against him or, if deportation proceedings have been commenced, any time prior to the commencement of his hearing. The officers designated in paragraph (a) of this section may deny or grant the application and determine the conditions under which the alien's departure shall be effected. An appeal shall not lie from a denial of an application for voluntary departure under this section, but the denial shall be without prejudice to the alien's right to apply for relief from deportation under any provision of law.

(c) Revocation. If, subsequent to the granting of an application for voluntary departure under this section, it is ascertained that the application should not have been granted, that grant may be revoked without notice by any district director, district officer in charge of investigations, officer in charge, or chief patrol inspector.

[23 F.R. 9123, Nov. 26, 1958; 29 F.R. 13242, Sept. 24, 1964]

§ 242.7

Cancellation of proceedings.

If an order to show cause has been issued, a district director, acting district director, deputy district director, or officer in charge authorized to issue an order to show cause, may cancel the order to show cause or, prior to the actual commencement of the hearing under a served order to show cause, terminate proceedings thereunder, if in either case he is satisfied that the respondent is actually a national of the United States, or is not deportable under the immigration laws, or is deceased, or is not in the United States. If an order

to show cause has been cancelled or proceedings have been terminated pursuant to this section, any outstanding warrant of arrest shall also be cancelled. [28 F.R. 9504, Aug. 30, 1963]

§ 242.7a

Waiver of documents; returning residents.

Pursuant to the authority contained in section 211(b) of the Act, an alien previously lawfully admitted to the United States for permanent residence who, upon return from a temporary absence was excludable because of failure to have or to present a valid passport, immigrant visa, reentry permit, border crossing card, or other document required at the time of entry, may be granted a waiver of such requirement in the discretion of the district director: Provided, That such alien (a) was not otherwise excludable at the time of entry, or (b) having been otherwise excludable at the time of entry is with respect thereto qualified for an exemption from deportability under section 241(f) of the Act, and (c) is not otherwise subject to deportation. Denial of a waiver by the district director shall not be appealable but shall be without prejudice to renewal of an application and reconsideration in proceedings before a special inquiry officer. [29 F.R. 6002, May 7, 1964]

§ 242.8 Special inquiry officers.

(a) Authority. In any proceeding conducted under this part the special inquiry officer shall have the authority to determine deportability and to make decisions, including orders of deportation as provided by section 242(b) of the Act; to reinstate orders of deportation as provided by section 242(f) of the Act; to determine applications under sections 244, 245, and 249 of the Act; to determine the country to which an alien's deportation will be directed in accordance with section 243 (a) of the Act; to order temporary withholding of deportation pursuant to section 243 (h) of the Act, and to take any other action consistent with applicable provisions of law and regulation as may be appropriate to the disposition of the case. Nothing contained in this part shall be construed to diminish the authority conferred on special inquiry officers by the Act.

(b) Withdrawal and substitution of special inquiry officers. This special inquiry officer assigned to conduct the hearing shall at any time withdraw if he deems himself disqualified. If a hearing has begun but no evidence has been adduced other than by the respondent's pleading pursuant to § 242.16(b), or if a special inquiry officer becomes unavailable to complete his duties within a reasonable time, or if at any time the respondent consents to a substitution, another special inquiry officer may be assigned to complete the case. The new special inquiry officer shall familiarize himself with the record in the case and shall state for the record that he has done so.

[22 F.R. 9797, Dec. 6, 1957, as amended at 26 F.R. 12111, Dec. 19, 1961; 26 F.R. 12242, Dec. 22, 1961]

[blocks in formation]

(a) Authority. When an additional immigration officer is assigned to a proceeding under this part to perform the duties of a trial attorney, he shall present on behalf of the Government evidence material to the issues of deportability and any other issues which may require disposition by the special inquiry officer. The trial attorney is authorized to appeal from a decision of the special inquiry officer pursuant to § 242.21 and to move for reopening or reconsideration pursuant to § 242.22.

(b) Assignment. The district director, acting district director, or deputy district director shall assign a trial attorney to every case within the provisions of § 242.16(c). In his discretion, or at the request of the special inquiry officer, the district director, acting district director, or deputy district director, may assign a trial attorney to any other case at any stage of the proceedings.

[27 F.R. 9646, Sept. 29, 1962, as amended at 28 F.R. 9504, Aug. 30, 1964]

§ 242.10 Representation by counsel.

The respondent may be represented at the hearing by an attorney or other representative qualified under Part 292 of this chapter.

[22 F.R. 9797, Dec. 6, 1957]

§ 242.11 Incompetent respondents.

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the guardian, near relative, or friend who was served with a copy of the order to show cause shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent. [22 F.R. 9797, Dec. 6, 1957]

§ 242.12 Interpreter.

Any person acting as interpreter in a hearing under this part shall be sworn to interpret and translate accurately, unless the interpreter is an employee of the Service, in which event no such oath shall be required.

[22 F.R. 9797, Dec. 6, 1957]

§ 242.13 Postponement and adjournment of hearing.

Prior to the commencement of a hearing, the district director, acting district director, deputy district director, or officer in charge authorized to issue an order to show cause may grant a reasonable postponement for good cause shown, at his own instance upon notice to the respondent, or upon request of the respondent. After the commencement of the hearing, the special inquiry officer may grant a reasonable adjournment either at his own instance or, for good cause shown, upon application by the respondent or the trial attorney. A continuance of the hearing for the purpose of allowing the respondent to obtain representation shall not be granted more than once unless sufficient cause for the granting of more time is shown. [28 F.R. 9504, Aug. 30, 1963]

§ 242.14 Evidence.

(a) Sufficiency. A determination of deportability shall not be valid unless based on reasonable, substantial, and probative evidence.

(b) [Reserved]

(c) Use of prior statements. The special inquiry officer may receive in evidence any oral or written statement which is material and relevant to any

issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.

(d) Testimony. Testimony of witnesses appearing at the hearing shall be under oath or affirmation administered by the special inquiry officer.

(e) Depositions. Either at his own instance or on application of the trial attorney or the respondent, after due notice to all parties, a special inquiry officer may, if satisfied that a witness is not reasonably available at the place of hearing and that his testimony or other evidence is essential, order the taking of a deposition. Such order may prescribe and limit the content, scope, or manner of taking the deposition, may direct the production of documentary evidence, and may authorize the issuance of a subpoena by the officer designated to take the deposition in the event of the refusal or willful failure of a witness within the United States, after due notice, to appear, give testimony, or produce documentary evidence. Testimony shall be given under oath or affirmation and shall be recorded verbatim. The order of the special inquiry officer to take a deposition shall identify the witness and shall specify the title of the officer before whom the deposition is to be taken, shall set forth the immigration district having administrative jurisdiction over the place where the witness is situated but not the time, date, or place for the taking of the deposition, and shall state whether direct and cross-examination shall be by oral examination or written interrogatories or in combination. The Federal Rules of Civil Procedure shall be used as a guide to the extent practicable. In the United States, examination of the witness should take place before a special inquiry officer; abroad, preferably before a Unied States consular official. The witness shall be notified on Form I-260 to appear for examination. Copies of such notice shall be furnished to the parties to the proceeding. Both the respondent's copy and the record of hearing shall reflect advice as to his privilege to examine the witness and to be represented by counsel at such time. The officer presiding at the taking of the deposition shall note but not rule, upon objections and he shall not comment on the admissibility of evidence or on the credibility and demeaner of the witness.

[22 F.R. 9797, Dec. 6, 1957, as amended at 29 F.R. 13243, Sept. 24, 1964]

[blocks in formation]

The hearing before the special inquiry officer, including the testimony, exhibits, applications and requests, the special inquiry officer's decision, and all written orders, motions, appeals, briefs, 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. In his discretion, the special inquiry officer may exclude from the record any arguments made in connection with motions, applications, requests, or objections, but in such event the person affected may submit a brief. [26 F.R. 12112, Dec. 19, 1961]

[blocks in formation]

(a) Opening. The special inquiry officer shall advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice authorized to practice in the proceedings and require him to state then and there whether he desires representation; advise the respondent that he will have a reasonable opportunity to examine and object to the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; place the respondent under oath; read the factual allegations and the charges in the order to show cause to the respondent and explain them in nontechnical language, and enter the order to show cause as an exhibit in the record. Deportation hearings shall be open to the public, except that the special inquiry officer may, in his discretion and for the purpose of protecting witnesses, respondents, or the public interest, direct that the general public or particular individuals shall be excluded from the hearing in any specific case.

(b) Pleading by respondent. The special inquiry officer shall require the respondent to plead to the order to show cause by stating whether he admits or denies the factual allegations and his deportability under the charges contained therein. If the respondent admits the factual allegations and admits his deportability under the charges and the special inquiry officer is satisfied that no issues of law or fact remain, the special inquiry officer may determine that deportability as charged has been established by the admissions of the respond

« ÎnapoiContinuă »