ent. The special inquiry officer shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative, or friend; nor from an officer of an institution in which a respondent is an inmate or patient.

(c) Issues of deportability. When deportability is not determined under the provisions of paragraph (b) of this section, the special inquiry officer shall request the assignment of a trail attorney, and shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading.

(d) Additional charges. A trial attorney who has been assigned to a case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent. The additional factual allegations and charges shall be submitted in writing and entered as an exhibit in the record. The special inquiry officer shall read the additional factual allegations and charges to the respondent and explain them to him in nontechnical language. The special inquiry officer shall advise the respondent if he is not represented by counsel that he may be so represented and also that he may have a reasonable time within which to meet the additional factual allegations and charges. The respondent shall be required to state then and there whether he desires a continuance for either of these reasons. Thereafter, the provisions of paragraph (b) of this section shall apply to the additional factual allegations and lodged charges.

[27 F.R. 9646, Sept. 29, 1962; 29 F.R. 13243, Sept. 24, 1964]

§ 242.17 Ancillary matters, applications.

(a) Creation of the status of an alien lawfully admitted for permanent residence. The respondent may apply to the special inquiry officer for suspension of deportation under section 244 (a) of the Act, for adjustment of status under section 245 of the Act, or for creation of a record of lawful admission for permanent residence under section 249 of the Act; such applications shall be subject to the requirements contained in Parts 244, 245, and 249 of this chapter. The special inquiry officer shall inform the

respondent of his apparent eligibility to apply for any of the benefits enumerated in this paragraph and shall afford him an opportunity to make application therefor during the hearing. In exercising discretionary powers to grant or deny an application under this paragraph, the special inquiry officer may consider and rely upon information not contained in the record, provided the Commissioner has determined that it is in the interest of the national security and safety to do so.

(b) Voluntary departure. The respondent may apply to the special inquiry officer for voluntary departure in lieu of deportation pursuant to section 244(e) of the Act and Part 244 of this chapter.

(c) Temporary withholding of deportation. The special inquiry officer shall notify the respondent that if he is finally ordered deported his deportation will in the first instance be directed pursuant to section 243 (a) of the Act to the country designated by him and shall afford the respondent an opportunity then and there to make such designation. The special inquiry officer shall then specify and state for the record the country, or countries in the alternate, to which respondent's deportation will be directed pursuant to section 243 (a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a country. The respondent shall be advised that pursuant to section 243 (h) of the Act he may apply for temporary withholding of deportation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. The application shall consist of respondent's statement setting forth the reasons in support of his request. The respondent shall be examined under oath on his application and may present such pertinent evidence or information as he has readily available. The respondent has the burden of satisfying the special inquiry officer that he would be subject to physical persecution as claimed. The determination under section 243 (h) of the Act may be based upon information not of record if, in the opinion of the special inquiry officer or the Board, the disclosure of such information would be prejudicial to the interests of the United States.

(d) General. An application under this section shall be made only during the hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability. The respondent shall have the burden of establishing that he is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. The respondent shall not be required to pay a fee on more than one application (including a motion to reopen the proceeding in conjunction therewith) within paragraphs (a) and (c) of this section. Nothing contained herein is intended to foreclose the respondent from applying for any benefit or privilege which he believes himself eligible to receive in proceedings under this part.

[26 F.R. 12112, Dec. 19, 1961, as amended at 27 F.R. 8583, Aug. 28, 1962]

§ 242.18 Decision of special inquiry

officer.

(a) Contents. The decision of the special inquiry officer may be oral or written. Except when deportability is determined on the pleadings pursuant to § 242.16(b), the decision of the special inquiry officer shall include a discussion of the evidence and findings as to deportability. The formal enumeration of findings is not required. The decision shall also contain a discussion of the evidence pertinent to any application made by the respondent under § 242.17 and the reasons for granting or denying the request. The decision shall be concluded with the order of the special inquiry officer.

(b) Summary decision. Notwithstanding the provisions of paragraph (a) of this section, in any case where deportability is determined on the pleadings pursuant to § 242.16(b) and the respondent does not make an application under § 242.17, or the respondent applies for voluntary departure only and the special inquiry officer grants the application, the special inquiry officer may enter a summary decision on Form I-38, if deportation is ordered, or on Form I-39, if voluntary departure is granted with an alternate order of deportation.

(c) Order of the special inquiry officer. The order of the special inquiry officer shall direct the respondent's deportation, or the termination of the pro

ceedings, or such other disposition of the case as may be appropriate. When deportation is ordered, the special inquiry officer shall specify the country, or countries in the alternate, to which respondent's deportation shall be directed. The special inquiry officer is authorized to issue orders in the alternative or in combination as he may deem necessary. [26 F.R. 12112, Dec. 19, 1961]

§ 242.19 Notice of decision.

(a) Written decision. A written decision shall be served upon the respondent and the trial attorney, together with the notice referred to in § 3.3 of this chapter. Service by mail is complete upon mailing.

(b) Oral decision. An oral decision shall be stated by the special inquiry officer in the presence of the respondent and the trial attorney, if any, at the conclusion of the hearing. Unless appeal from the decision is waived, the respondent shall be furnished with Notice of Appeal, Form I-290A, and advised of the provisions of § 242.21. A typewritten copy of the oral decision shall be furnished at the request of the respondent or the trial attorney.

(c) Summary decision. When the special inquiry officer renders a summary decision as provided in § 242.18(b), he shall serve a copy thereof upon the respondent at the conclusion of the hearing. Unless appeal from the decision is waived, the respondent shall be furnished with Notice of Appeal, Form I-290A, and advised of the provisions of § 242.21.

[26 F.R. 12212, Dec. 19, 1961, as amended at 27 F.R. 9647, Sept. 29, 1962]

§ 242.20 Finality of order.

The order of the special inquiry officer shall be final except when the case is certified to the Board as provided in Part 3 of this chapter or an appeal is taken to the Board by the respondent or the trial attorney.

[27 F.R. 9647, Sept. 29, 1962]

service of a summary decision on Form I-38 or Form I-39. The reasons for the appeal shall be stated briefly in the Notice of Appeal, Form I-290A; failure to do so may constitute a ground for dismissal of the appeal by the Board. When service of the decision is made by mail, as authorized by this section, 3 days shall be added to the period prescribed for the taking on an appeal.

[29 F.R. 7236, June 3, 1964]

§ 242.22 Reopening or reconsideration.

Except as otherwise provided in this section, a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter. The special inquiry officer may upon his own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any case in which he has made a decision, unless jurisdiction in the case is vested in the Board under Part 3 of this chapter. A motion to reopen will not be granted unless the special inquiry officer is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing; nor will any motion to reopen for the purpose of providing the respondent with an opportunity to make an application under § 242.17 be granted if respondent's right to make such application was fully explained to him by the special inquiry officer and he was afforded an opportunity to do so at the hearing, unless circumstances have arisen thereafter on the basis of which the request is being made.

[27 F.R. 9647, Sept. 29, 1962]

cause shall charge him with deportability under section 242(f) of the Act. The prior order of deportation and evidence of the execution thereof, properly identified, shall constitute prima facie cause for deportability under this section.

(b) Applicable procedure. Except as otherwise provided in this section, proceedings under section 242(f) of the Act shall be conducted in general accordance with the rules prescribed in this part.

(c) Deportability. In determining the deportability of an alien alleged to be within the purview of paragraph (a) of this section, the issues shall be limited solely to a determination of the identity of the respondent, i.e., whether the respondent is in fact an alien who was previously deported, or who departed while an order of deportation was outstanding; whether the respondent was previously deported as a member of any of the classes described in paragraph (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), or (18) of section 241(a) of the Act; and whether respondent has unlawfully reentered the United States.

(d) Order. If deportability as charged in the order to show cause is established, the special inquiry officer shall order that the respondent be deported under the previous order of deportation in accordance with section 242(f) of the Act. The special inquiry officer shall direct respondent's deportation to the country to which respondent was returned under the previous order of deportation or, if that is impracticable, to any country that is willing to accept him into its territory.

(e) Trial attorney; additional charges. When a trial attorney is assigned to a proceeding under this section and additional charges are lodged against the respondent, the provisions of paragraphs (c) and (d) of this section shall cease to apply.

[26 F.R. 12282, Dec. 23, 1961, as amended at 27 F.R. 9647, Sept. 29, 1962]

§ 243.1

Final order of deportation. Except as otherwise required by section 242(c) of the Act for the specific purposes of that section, an order of deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under Part 242 of this chapter shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision. § 243.2 Warrant of deportation.

A warrant of deportation based upon the final administrative order of deportation in the alien's case shall be issued by a district director. The district director shall exercise the authority contained in section 243 of the Act to determine at whose expense the alien shall be deported and whether his mental or physical condition requires personal care and attendance en route to his destination.

§ 243.3 Expulsion.

Once the warrant of deportation is issued an alien, if not in the physical custody of the Service, shall be given not less than 72 hours' advance notice in writing of the time and place of his surrender completely ready for deportation. If the alien fails to surrender as directed, he shall be deported without further notice when located: Notwithstanding

the filing of an application for a stay of deportation, an alien shall surrender as directed unless he shall receive notice prior to the surrender date that a stay has been granted.

§ 243.4 Stay of deportation.

Any request by an alien under a final administrative order of deportation for a stay of deportation, except a request for withholding of deportation pursuant to section 243 (h) of the Act, shall be filed on Form I-246 with the district director having jurisdiction over the place where the alien is at the time of filing. The district director, in his discretion, may grant a stay of deportation for such time and under such conditions as he may deem appropriate. Written notice of the disposition of the alien's request shall be served upon him, but neither the making of the request nor the failure to receive notice of the decision thereon shall relieve or excuse the alien from presenting himself for deportation at the time and place designated for his deportation. Denial by the district director of a request for a stay is not appealable but such denial shall not preIclude the Board from granting a stay in connection with a motion to reopen or a motion to reconsider as provided in Part 3 of this chapter.

§ 243.5 Self-deportation.

A district director may permit an alien ordered deported to depart at his own expense to a destination of his own choice. Any alien who has departed from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law, except that an alien who departed before the expiration of the voluntary departure time granted in connection with an alternate order of deportation shall not be considered to have been so deported.

[29 F.R. 6485, May 19, 1964]

§ 243.6 Notice to transportation line.

When a transportation line is responsible for the expenses of an alien's deportation, notification shall be made to such line on Form I-284, when applicable, and Form I-288. If special care and attention is required, notification to this effect shall be placed on Form I-288.

§ 243.7 Special care and attention for aliens.

When a transportation line is responsible for the expenses of an alien's deportation, the alien shall be delivered to the master, commanding officer, or the officer in charge of the vessel or aircraft on which the alien will be deported, who shall be given Forms I-287, I-287A, and I-287B. The reverse of Form I-287A shall be signed by the officer of the vessel or aircraft to whom the alien has been delivered and immediately returned to the immigration officer effecting delivery. Form I-287B shall be retained by the receiving officer and subsequently filled out by the agents or persons therein designated and returned by mail to the district director named on the form. The transportation line shall at its own expense forward the alien from the foreign port of disembarkation to the final destination specified on Form I-287. The special care and attention shall be continued to such final destination, except when the foreign public officers decline to allow such attendant to proceed and themselves take charge of the alien, in which case this fact shall be recorded by the transportation line on the reverse of Form I-287B. If the transportation line fails, refuses, or neglects to provide the necessary special care and attention or comply with the directions of Form I-287, the district director shall thereafter and without notice employ suitable persons, at the expense of the transpor

tation line, and effect such deportation.

§ 243.8

Imposition of sanctions.

The provisions of section 243(g) of the Act have been applied to residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary; those provisions do not apply to an alien who is residing in Estonia, Latvia, or Lithuania who is not a national, citizen, or subject of the Union of Soviet Socialist Republics. The sanctions imposed on residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary pursuant to section 243 (g) may be waived in an individual case for the beneficiary of a petition accorded a status under section 101(a) (27) (A) or section 203(a) (2), (3), or (4) of the Act, and may also be waived for the beneficiary of a petition accorded a status under section 101(a) (27) (F) or 203(a) (1) of the Act who resides in Hungary. The sanctions also may be waived upon an individual request by the Department of State in behalf of a visa applicant who is not the beneficiary of an approved visa petition. Upon approval of a visa petition or upon an individual request by the Department of State in behalf of a visa applicant who is not the beneficiary of an approved visa petition, the district director will determine whether sanctions shall be waived.

[29 F.R. 14220, Oct. 16, 1964]