but prior to a decision thereon shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

[29 F.R. 2692, Feb. 26, 1964]

§ 3.5 Forwarding of record on appeal. If an appeal is taken from a decision, as provided in this chapter, the entire record of the proceeding shall be forwarded to the Board by the officer of the Service having administrative jurisdiction over the case upon timely receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs.

[29 F.R. 2692, Feb. 26, 1964]

§ 3.6 Stay of execution of decision.

The decision in any proceeding under this chapter from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such decision be executed while an appeal is pending or while a case is before the Board by way of certification.

[23 F.R. 9118, Nov. 26, 1958]

§ 3.7 Notice of certification.

Whenever in accordance with the provisions of § 3.1(c) a case is required to be certified to the Board, the alien or other party affected shall be given notice of certification. A case shall be certified only after an initial decision has been made and before an appeal has been taken. If it is known at the time the initial decision is made that the case will be certified, the notice of certification shall be included in such decision and no further notice of certification shall be required. If it is not known until after the initial decision is made that the case will be certified, the officer of the Service having administrative jurisdiction over the case shall cause a Notice of Certification (Form I-290C) to be served upon the party affected. In either case the notice shall inform the party affected that the case is required to be certified to the Board and that he has the right to make representation before the Board, including the making of oral argument and the submission of a brief. If the party affected desires to submit a brief, it shall be submitted to the officer of the Service having administrative jurisdiction over the case for transmittal to the Board within ten days from the date of

receipt of the notice of certification, unless for good cause shown such officer or the Board extends the time within which the brief may be submitted. The case shall be certified and forwarded to the Board by the officer of the Service having administrative jurisdiction over the case upon receipt of the brief, or upon the expiration of the time within which the brief may be submitted, or upon receipt of a written waiver of the right to submit a brief.

[23 F.R. 9118, Nov. 26, 1958]

§ 3.8 Motion to reopen or motion to reconsider.

(a) Form. Motions to reopen and motions to reconsider shall be submitted in triplicate. A request for oral argument, if desired, shall be incorporated in the motion. The Board in its discretion may grant or deny oral argument. Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material. Motions to reconsider shall state the reasons upon which the motion is based and shall be supported by such precedent decisions as are pertinent. In any case in which a deportation order is in effect, there shall be included in the motion to reopen or reconsider such order a statement by or on behalf of the moving party declaring whether the subject of the deportation order is also the subject of any pending criminal proceeding under section 242 (e) of the Act, and, if so, the current status of that proceeding. If the motion to reopen or reconsider is for the purpose of seeking discretionary relief, there shall be included in the motion a statement by or on behalf of the moving party declaring whether the alien for whose relief the motion is filed is subject to any pending criminal prosecution and, if so, the nature and current status of that prosecution. Motions to reopen or reconsider shall state whether the validity of the deportation 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. The filing of a motion to reopen or a motion to reconsider shall not serve to stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board or the officer of

the Service having administrative jurisdiction over the case.

(b) Distribution of motion papers when alien is moving party. In any case in which a motion to reopen or a motion to reconsider is made by the alien or other party affected, the three copies of the motion papers shall be submitted to the officer of the Service having administrative jurisdiction over the place where the proceedings were conducted. Such officer shall retain one copy, forward one copy to the officer of the Service who made the initial decision in the case, and submit the third copy with the case to the Board.

(c) Distribution of motion papers when the Commissioner, or any other duly authorized officer of the Service is the moving party. Whenever a motion to reopen or a motion to reconsider is made by the Commissioner or any other duly authorized officer of the Service, he shall cause one copy of the motion to be served upon the alien or party affected, as provided in Part 292 of this chapter, and shall cause the record in the case and one copy of the motion to

be filed directly with the Board, together with proof of service upon the alien or other party affected. Such alien or party shall have a period of ten days from the date of service upon him of the motion within which he may apply, if he so desires, submit a brief in opposition to the motion. If such a brief is submitted, two copies thereof shall be filed directly with the Board and one copy directly with the Commissioner. The Board, in its discretion, for good cause shown may extend the time within which such brief may be submitted.

(d) Ruling on motion. Rulings upon motions to reopen or motions to reconsider shall be by written order. If the order directs a reopening, the record shall be returned to the officer of the Service having administrative jurisdiction over the place where the reopened proceedings are to be conducted. If the motion to reconsider is granted, the decision upon such reconsideration shall affirm, modify, or reverse the original decision made in the case.

[23 F.R. 9118, Nov. 26, 1958, as amended at 27 F.R. 7488, July 31, 1962]

PART 101-PRESUMPTION OF
LAWFUL ADMISSION

§ 101.1 Presumption of lawful admission.

A member of the following classes shall be presumed to have been lawfully admitted for permanent residence even though a record of his admission cannot be found, except as otherwise provided in this section, unless he abandoned his lawful permanent resident status or subsequently lost that status by operation of law:

(a) Prior to June 30, 1906. An alien who establishes that he entered the United States prior to June 30, 1906.

(b) United States land borders. An alien who establishes that, while a citizen of Canada or Newfoundland, he entered the United States across the Canadian border prior to October 1, 1906; an alien who establishes that while a citizen of Mexico he entered the United States across the Mexican border prior to July 1, 1908; an alien who establishes that, while a citizen of Mexico, he entered the United States at the port of Presidio, Texas, prior to October 21, 1918;

and an alien for whom a record of his actual admission to the United States does not exist but who establishes that he gained admission to the United States prior to July 1, 1924, pursuant to preexamination at a United States immigration station in Canada and that a record of such preexamination exists.

(c) Virgin Islands. An alien who establishes that he entered the Virgin Islands of the United States prior to July 1, 1938, even though a record of his admission prior to that date exists as a non-immigrant under the Immigration Act of 1924.

(d) Asiatic barred zone. An alien who establishes that he is of a race indigenous to, and a native of a country within, the Asiatic zone defined in section 3 of the Act of February 5, 1917, as amended, that he was a member of a class of aliens exempted from exclusion by the provisions of that section, and that he entered the United States prior to July 1, 1924, provided that a record of his admission exists.

(e) Chinese and Japanese aliens—(1) Prior to July 1, 1924. A Chinese alien for whom there exists a record of his

admission to the United States prior to July 1, 1924, under the laws and regulations formerly applicable to Chinese and who establishes that at the time of his admission he was a merchant, teacher, or student, and his son or daughter under 21 or wife accompanying or following to join him; a traveler for curiosity or pleasure and his accompanying son or daughter under 21 or accompanying wife; a wife of a United States citizen; a returning laborer; and a person erroneously admitted as a United States citizen under section 1993 of the Revised Statutes of the United States, amended, his father not having resided in the United States prior to his birth.

as

(2) On or after July 1, 1924. A Chinese alien for whom there exists a record of his admission to the United States as a member of one of the following classes; an alien who establishes that he was readmitted between July 1, 1924, and December 16, 1943, inclusive, as a returning Chinese laborer who acquired lawful permanent residence prior to July 1, 1924; a person erroneously admitted between July 1, 1924, and June 6, 1927, inclusive, as a United States citizen under section 1993 of the Revised Statutes of the United States, as amended, his father not having resided in the United States prior to his birth; an alien admitted at any time after June 30, 1924, under section 4 (b) or (d) of the Immigration Act of 1924; an alien wife of a United States citizen admitted between June 13, 1930, and December 16, 1943, inclusive, under section 4(a) of the Immigration Act of 1924; an alien admitted on or after December 17, 1943, under section 4(f) of the Immigration Act of 1924; an alien admitted on or after December 17, 1943, under section 317(c) of the Nationality Act of 1940, as amended; an alien admitted on or after December 17, 1943, as a preference or nonpreference quota immigrant pursuant to section 2 of that act; and a Chinese or Japanese alien admitted to the United States between July 1, 1924, and December 23, 1952, both dates inclusive, as the wife or minor son or daughter of a treaty merchant admitted before July 1, 1924, if the husband-father was lawfully admitted to the United States as a treaty merchant before July 1, 1924, or, while maintaining another status under which he was admitted before that date, had his status changed to that of a treaty merchant or treaty trader after that date, and was

maintaining the changed status at the time his wife or minor son or daughter entered the United States.

(f) Citizens of the Philippine Islands— (1) Entry prior to May 1, 1934. An alien who establishes that he entered the United States prior to May 1, 1934, and that he was on the date of his entry a citizen of the Philippine Islands, provided that for the purpose of petitioning for naturalization he shall not be regarded as having been lawfully admitted for permanent residence unless he was a citizen of the Commonwealth of the Philippines on July 2, 1946.

Entry between May 1, 1934, and July 3, 1946. An alien who establishes that he entered Hawaii between May 1, 1934, and July 3, 1946, inclusive, under the provisions of the last sentence of section 8(a) (1) of the Act of March 24, 1934, as amended, that he was a citizen of the Philippine Islands when he entered, and that a record of such entry exists.

The

(g) Temporarily admitted aliens. following aliens who when admitted expressed an intention to remain in the United States temporarily or to pass in transit through the United States, for whom records of admission exist, but who remained in the United States: An alien admitted prior to June 3, 1921, except if admitted temporarily under the 9th proviso to section 3 of the Immigration Act of 1917, or as an accredited official of a foreign government, his suite, family, or guest, or as a seaman in pursuit of his calling; an alien admitted under the Act of May 19, 1921, as amended, who was admissible for permanent residence under that Act notwithstanding the quota limitations thereof and his accompanying wife or unmarried son or daughter under 21 who was admissible for permanent residence under that Act notwithstanding the quota limitations thereof; and an alien admitted under the Act of May 19, 1921, as amended, who was charged under that Act to the proper quota at the time of his admission or subsequently and who remained so charged.

(h) Citizens of the Trust Territory of the Pacific Islands who entered Guam prior to December 24, 1952. An alien who establishes that while a citizen of the Trust Territory of the Pacific Islands he entered Guam prior to December 24, 1952, by records, such as Service records subsequent to June 15, 1952, records of the Guamanian Immigration Service,

records of the Navy or Air Force, or records of contractors of those agencies, and was residing in Guam on December 24, 1952.

(i) Aliens admitted to Guam. An alien who establishes that he was admitted to Guam prior to December 24, 1952, by records such as Service records subsequent to June 15, 1952, records of the Guamanian Immigration Service, records of the Navy or Air Force, or records of contractors of those agencies; that he was not excludable under the Act of February 5, 1917, as amended; and that he continued to reside in Guam until December 24, 1952, and thereafter was not admitted or readmitted into Guam as a nonimmigrant, provided that the provisions of this paragraph shall not apply to an alien who was exempted from the contract laborer provisions of section 3 of the Immigration Act of February 5, 1917, as amended, through the exercise, expressly or impliedly, of the 4th or 9th provisos to section 3 of that act.

(j) Erroneous admission as United States citizens or as children of citizens. (1) (i) An alien for whom there exists a record of admission prior to September 11, 1957, as a United States citizen who establishes that at the time of such admission he was the child of a United States citizen parent; he was erroneously issued a United States passport or included in the United States passport of his citizen parent accompanying him or to whom he was destined; no fraud or misrepresentation was practiced by him in the issuance of the passport or in gaining admission; he was otherwise admissible at the time of entry except for failure to meet visa or passport requirements; and he has maintained a residence in the United States since the date of admission, or (ii) an alien who meets all of the foregoing requirements except that if he were, in fact, a citizen of the United States a passport would not have been required, or it had been individually waived, and was erroneously admitted as a United States citizen by a Service officer. For the purposes of all of the foregoing, the terms "child" and "parent" shall be defined as in section 101(b) of the Immigration and Nationality Act, as amended.

(2) An alien admitted to the United States before July 1, 1948, in possession of a section 4(a) 1924 Act nonquota immigration visa issued in accordance with State Department regulations, including a child of a United States citizen after

he reached the age of 21, in the absence of fraud or misrepresentation; a member of a naturalized person's family who was admitted to the United States as a United States citizen or as a section 4(a) 1924 Act nonquota immigrant on the basis of that naturalization, unless he knowlingly participated in the unlawful naturalization of the parent or spouse rendered void by cancellation, or knew at any time prior to his admission to the United States of the cancellation; and a member of a naturalized person's family who knew at any time prior to his admission to the United States of the cancellation of the naturalization of his parent or spouse but was admitted to the United States as a United States citizen pursuant to a State Department or Service determination based upon a then prevailing administrative view, provided the State Department or Service knew of the cancellation.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103) [23 F.R. 9119, Nov. 26, 1958, as amended at 24 F.R. 2583, Apr. 3, 1959; 24 F.R. 6476, Aug. 12, 1959; 25 F.R. 581, Jan. 23, 1960; 31 F.R. 535, Jan. 15, 1966]

AUTHORITY: The provisions of this Part 103 issued under sec. 501, 65 Stat. 290, secs. 103, 281, 332, 343, 344, 405, 66 Stat. 173, 230, 252, 263, 264, 280, 5 U.S.C. 140, 8 U.S.C. 1103, 1351, 1443, 1454, 1455, 1101, and note. § 103.1

Delegations of authority.

Without divesting the Commissioner of any of the powers, privileges, and duties delegated to him by the Attorney General under the immigration and naturalization laws of the United States, coextensive authority is hereby delegated to the following-described officers of the Service:

(a) Associate Commissioner, Operations. All of the operational activities

of the Service.

(1) Deputy Associate Commissioner, Domestic Control. The operational activities of the Service relating to investigations and enforcement.

(i) Assistant Commissioner, Investigations. The investigations and administrative prosecution activities of the Service.

(ii) Assistant Commissioner, Enforcement. The border patrol activities of the Service.

(2) Deputy Associate Commissioner, Travel Control. The operational activities of the Service relating to authorizations, Service activities outside the United States, and inspections at ports of entry.

(i) Assistant Commissioner, Examinations. The authorization and inspection activities of the Service.

(ii) Assistant Commissioner, Special Projects. The Service activities outside the United States.

(b) Associate Commissioner, Management. All of the management activities of the Service.

(1) Deputy Associate Commissioner, Security. The management activities of the Service, relating to field inspections, security, intelligence, and naturalization.

(i) Assistant Commissioner, Field Inspection and Security. The field inspection, intelligence, and security activities of the Service.

(ii) Assistant Commissioner, Naturalization. The naturalization activities of the Service.

(2) Deputy Associate Commissioner, Administrative Services. The management activities of the Service relating to administration, detention, and deporta

(2) Decisions on sixth-preference petitions, as provided in § 204.1(d), except when the denial of the petition is based upon the lack of a certification by the Secretary of Labor pursuant to section 212(a) (14) of the Act;

(3) Decisions on orphan petitions, as provided in § 204.1(b);

(4) Decisions on requests for revalidation of certain petitions, as provided in § 205.1(c), except when the denial of the request for revalidation of a petition for third or sixth preference is based upon the lack of a certification by the Secretary of Labor pursuant to section 212(a) (14) of the Act;

(5) Decisions revoking approval of certain petitions, as provided in § 205.3;

(6) Decisions on applications for permission to reapply for admission to the United States after deportation or removal, as provided in § 212.2;

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

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

(9) Decisions on petitions for temporary workers or trainees, as provided in § 214.2 of this chapter.

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

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

(12) Decisions on adjustment of status of certain resident aliens to nonimmigrants, as provided in § 247.12(b); Decisions on applications for change of nonimmigrant status, as provided in § 248.2;

(13)

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

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

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

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

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

(19) 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 out