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 FR 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. 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. The immigration officer shall, if possible, take a brief sworn question and answer statement from the alien, and the alien shall be notified by personal service of Form I-147 of the action taken and the right to make written representations. 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 FR 9791, Dec. 6. 1957; 22 FR 9619. Nov. 28, 1957, as amended at 37 FR 11470, June 8, 19721

1235.9 Conditional entries.

(a) Countries in which applications may be filed Pursuant to agreements entered into with the governments of the countries concerned, officers of the Service are authorized to accept applications and to examine the quali fications of applicants for conditional entry under section 203(aX7) of the Act in Austria, Belgium, France, Germany, Greece, Hong Kong, Italy, Lebanon and Spain. Applications for conditional entry may be filed only by aliens who are physically present within one of the designated countries.

(b) Applicants afflicted with tuberculosis, or applicants found inadmissible under section 212(a) (1) or (3). The provisions of section 212(g) of the Act shall apply to an applicant for conditional entry excludable from the United States under section 212(a)(6) because of affliction with tuberculosis or who is excludable under section 212(a) (1) or (3) of the Act, if the applicant has one of the family relation ships specified in section 212(g), including the relationship specified to an alien whose conditional entry has been authorized.

(c) Application. A separate application for conditional entry under section 203(a)(7) of the Act shall be executed by each applicant on Form I590 except that, in the case of a family group, a separate Form I-590 need be executed only for those members of the family who are 18 years of age or older and a carbon or machine copy of the Form I-590 executed by the principal adult applicant may be submitted as the application for each accompanying child under 18 years of age listed on such principal's application. The Forms I-590 shall be submitted to the officer in charge of the nearest Service office outside the United States. Each application shall be accompanied by a properly executed and signed Form G-325C if the applicant has reached his 14th birthday. An application for conditional entry filed by an alien who can qualify as an immediate relative or as a special immigrant shall be rejected. An applicant who ap

pears to be eligible for classification under section 203(a) (1), (2), (3), (4), or (5) of the Act shall be advised, but not required to seek such classification if a visa number is available. An applicant for whom a nonpreference visa number is available and who is not coming to the United States to perform skilled or unskilled labor shall be advised but not required to apply for a nonpreference immigrant visa. Each applicant under this paragraph shall appear in person before an immigration officer and excepting a child under 14 years of age shall, prior to the adjudication of his application, be interrogated under oath concerning his eligibility for conditional entry into the United States. Conditional entry will not be authorized until a medical examination has been completed and until assurances of employment and housing in the United States for a period of 2 years on Form I-591 and assurances of transportation from the applicant's place of abode to point of final destination in the United States have been provided. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the officer in charge.

(d) Approved application. The approval of an application by an officer in charge outside the United States authorizes the district director at a port of entry to effect the conditional entry of the applicant upon arrival at such port within 4 months after the date of the approval. Upon arrival, every conditional entrant 14 years old or over shall execute Form I-592. For the purposes of section 203 (g) and (h) of the Act, the 2-year period shall commence on the date of the applicant's conditional entry into the United States.

(e) Inspection of conditional entrant as to admissibility for permanent residence. Two years subsequent to conditional entry in the United States, each conditional entrant shall be required to appear before an immigration officer. The conditional entrant, if over 14 years of age, shall be interrogated by an immigration officer under oath and a determination of admissibility shall be made in accordance with Parts 235

and 236 of this chapter. Except as provided in Parts 245 and 249 of this chapter, an application under this part shall be the sole method of requesting the exercise of discretion under section 212 (g), (h), or (i) of the Act, insofar as they relate to the excludability of an alien in the United States.

(f) Termination of conditional entrant status. Whenever a district director has reason to believe that a conditional entrant under section 203(a)(7), whose status has not otherwise been terminated or changed, is or has become inadmissible to the United States under any provision of section 212(a) of the Act (except section 212(a)(20)), he shall cause to be served upon the alien, in accordance with the provisions of § 235.6, Form I-122, Notice to Alien Detained for Hearing by a Special Inquiry Officer. The alien shall be referred for inquiry before a special inquiry officer in accordance with the provisions of sections 235, 236, and 237 of the Act and of this chapter. The special inquiry officer, if he determines that the alien is not inadmissible to the United States or, if inadmissible, that the alien is prima facie eligible for a waiver of the grounds of excludability pursuant to sections 212 (g), (h), or (i) of the Act, shall order the proceedings terminated and shall refer the matter to the district director for further proceedings in accordance with section 203(g) of the Act. Such order shall be without prejudice to reinstitution of proceedings or institution of new proceedings under this section. No appeal shall lie from a decision of a district director denying an application for a waiver under section 212 (g), (h), or (i) of the Act, but such denial shall be without prejudice to the renewal of the application in the course of proceedings before a special inquiry officer. The special inquiry officer, if he determines that the alien is inadmissible to the United States for permanent residence under any provision of the Act except section 212(a)(20) and that the alien is not entitled to the benefits of sections 212 (g), (h), or (i) of the Act, shall order the termination of the alien's conditional entry and shall make such further order as may be proper. From the decision of the spe

cial inquiry officer an appeal shall lie in accordance with the provisions of § 236.5 of this chapter.

[30 FR 14777, Nov. 30, 1965, as amended at 31 FR 5118, Mar. 30, 1966; 31 FR 16125, Dec. 16, 1966, 32 FR 9628, July 4, 1967; 33 FR 10504, July 24, 1968; 33 FR 17136, Nov. 19, 1968; 35 FR 17322, Nov. 11, 1970; 42 FR 36449, July 15, 1977]

§ 235.10 U.S. Citizen Identification Card.

(a) General. Solely as a convenience to facilitate identification in the United States by immigration officers and entry over land borders from foreign contiguous territory, a citizen who is physically present in the United States may apply for a U.S. Citizen Identification Card, Form I197, to the Service office having jurisdiction over the place where he is present. Possession of the card shall not be mandatory for any purpose. A U.S. citizen identification card is and never ceases to be the property of the United States.

(b) Eligibility. No United States citizen shall be eligible for an identification card unless he is physically present in the United States at the time of application therefor and at the time of issuance of the card and, if other than a nativeborn citizen, has been issued a certificate of naturalization or citizenship.

(c) Application. An application for an identification card shall be made on Form I-196, accompanied by the fee required under § 103.7 of this chapter and one photograph 11⁄2 inches by 11⁄2 inches, and evidence of his birth in the United States or, in the case of a United States citizen who was not born in the United States, a certificate of naturalization or citizenship. The applicant, when notified to do so, and his parent or guardian, if one is acting in his behalf, shall appear in person before an immigration officer in the United States for examination under oath or affirmation upon the application.

(d) Denial of application. If the decision of the district director is that the application shall be denied, notification thereof and the reasons therefor shall be furnished the applicant. No appeal shall lie from the denial of an application by the district director.

(e) Issuance of identification card. If the applicant establishes his citizenship and eligibility to the satisfaction of the district director, the identification card shall be issued to the applicant. The delivery of such card shall be made only in the United States.

(f) Replacement. If a U.S. citizen identification card has been lost, mutilated or destroyed, the person to whom such card was issued may apply for a new card (Form I-197) in accordance with the provisions of this section. If subsequent to issuance of an identification card the holder's name has been changed by marriage or by order of a court of competent jurisdiction, application for a new card may be made in accordance with the provisions of this section. A mutilated card may be replaced only if it is surrendered to the Service. A card in a changed name may be issued only if the previously-issued card is surrendered, unless it was lost or destroyed, and a certified copy of the marriage record or court decree ordering the name change is submitted. The holder of an identification card which is in poor condition because of improper lamination or which contains an error made by the Service may be issued a new one without submitting a fee or application upon surrender of the original card.

(g) Surrender and voidance-(1) Institution of proceeding under section 236, 242, or 342 of the Act. A U.S. citizen identification card shall be surrendered provisionally to a Service office upon notification by the district director of such office of institution of a proceeding under section 236, 242, or 342 of the Act against the person to whom the card was issued. The card shall be returned to such person if the final order in the proceeding does not result in the voidance of the document pursuant to this paragraph. A U.S. citizen identification card shall be deemed void automatically if the person to whom it was issued is determined to be an alien in a proceeding conducted pursuant to section 236 or 242 of the Act, or if a certificate, document, or record relating to such person is cancelled pursuant to section 342 of the Act.

(2) Investigation of validity of identification card. A U.S. citizen identification card shall be surrendered provisionally to a Service office upon notification by the district director of such office that the validity of the card is being investigated. The card shall be returned to the person who surrendered it if the investigation does not result in a determination adverse to his claim to be a United States citizen. When an investigation results in a tentative determination adverse to the applicant's claim to be a United States citizen, the applicant shall be so noti fied by certified mail directed to his last known address. The notification shall inform the applicant of the basis for such determination and of the intention of the district director to declare the card void unless within 30 days the applicant objects and demands an opportunity to see and rebut the adverse evidence. Any rebuttal, explanation or evidence presented by the applicant shall be included in the record of proceeding. The determination whether the applicant is a United States citizen shall be based on the entire record and the applicant shall be notified of such determination. If the determination is that the applicant is not a U.S. citizen, he shall be notified of the reasons therefor, and the card shall automatically be deemed void. No appeal shall lie from the district director's decision.

(3) Admission of alienage. A U.S. citizen identification card shall be deemed void if the person to whom it was issued admits in a statement signed before an immigration officer that he is an alien and consents therein to the voidance of the card. Upon the signing of such statement the card shall be surrendered to the immigration officer.

(4) Surrender of void card. A void U.S. citizen identification card which has not been returned to the Service, shall be surrendered forthwith to an immigration officer or to the issuing office of the Service.

(h) U.S. citizen identification card previously issued on Form I-179. A valid U.S. citizen identification card issued on Form I-179 shall continue to

be valid, but shall be subject to the provisions of this section.

[40 FR 3210A, Jan. 20, 1975]

PART 236-EXCLUSION OF ALIENS Sec.

236.1 Authority of immigration judges. 236.2 Hearing.

236.3 Decision of the immigration judge; notice to the applicant. 236.4 Finality of order. 236.5 Appeals.

236.6 Fingerprinting of excluded aliens.

AUTHORITY: Secs. 103, 212, 234, 235, 236, 292, 66 Stat. 173, 182, as amended, 198, 200, 238; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.

SOURCE: 42 FR 46045, Sept. 14, 1977, unless otherwise noted.

§ 236.1 Authority of special immigration judges.

In determining cases referred for further inquiry as provided in section 235 of the Act, immigration judges 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, immigration judges 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.

§ 236.2 Hearing.

(a) Opening. Exclusion hearings shall be closed to the public, unless the alien at his own instance requests that the public, including the press, be permitted to attend; in that event, the hearing shall be open, provided that the alien states for the record that he is waiving the requirement in section 236 of the Act that the inquiry shall be kept separate and apart from the public. When the hearing is to be open, depending upon physical facilities, reasonable limitation may be placed upon the number in attendance at any one time, with priority being given to the press over the general public. The immigration judge 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.

Procedure.

(b) The immigration judge 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 shall assign a trial attorney to every case in which the appellant's nationality is in issue or in which the immigration judge requests such assignment. In his discretion the district director may assign a trial attorney to any case in which he deems such assignment necessary or advantageous. The duties of the trial attorney 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 immigration judge 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 immigration judge, including the testimony and exhibits, the immigration judge'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 immigration judge.

§ 236.3 Decision of the immigration judge; notice to the applicant.

(a) Contents. The decision of the immigration judge may be oral or written. It shall include a discussion of the