[28 FR 8280, Aug. 13, 1963, as amended at 32 FR 5619, Apr. 6, 1967; 39 FR 20367, June 10, 1974; 39 FR 20959, June 17, 1974; 40 FR 30470, July 21, 1975; 40 FR 50250, Oct. 29, 1975]

§ 242.3 Confined aliens, incompetents, and minors.

(a) Service. If the respondent is confined, or if he is an incompetent, or a minor under the age of 14, the order to show cause, and the warrant of arrest, if issued, shall be served in the manner prescribed in § 242.1(c) upon the person or persons named in § 103.5a(c) of this chapter.

(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 FR 9796, Dec. 6, 1957, as amended at 37 FR 11470, June 8, 1972]

§ 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 FR 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 agents.

(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 agent.

[23 FR 9123, Nov. 26, 1958, as amended at 29 FR 13242, Sept. 24, 1964; 35 FR 16362, Oct. 20, 1970]

§ 242.7 Cancellation of proceedings.

(a) If an order to show cause has been issued, any district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of

an office enumerated in § 242.1(a) 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, or that the proceedings was improvidently begun; or after actual commencement of hearing such officer may move that the case be dismissed for any of the foregoing reasons or that the case be remanded to his jurisdiction on the ground that it has come to his attention that there are involved the foreign relations of the United States which require further consideration. Cancellation of an order to show cause or termination of proceedings or remand of a case pursuant to the foregoing shall be without prejudice to the alien or the Service. 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. A special inquiry officer may, in his discretion, terminate deportation proceedings to permit respondent to proceed to a final hearing on a pending application or petition for naturalization when the respondent has established prima facie eligibility for naturalization and the case involves exceptionally appealing or humanitarian factors; in every other case, the deportation hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings. (Sec. 103, 66 Stat. 173 (8 U.S.C. 1103))

(b) The basis and purpose of the above-prescribed regulations are to empower assistant district directors for investigations to issue and cancel orders to show cause and to empower assistant district directors for investigations and certain specified officers in charge to issue warrants of arrest.

(c) Compliance with the provisions of section 553 of Title 5 of the United States Code (80 Stat. 383) as to delayed effective date is unnecessary in this instance and would serve no useful purpose because the amend

ments to §§ 242.1, 242.2, and 242.7, which concern solely an internal reallocation of delegated authority, relate to agency management.

[39 FR 20368, June 10, 1974; 39 FR 20959, June 17, 1974]

§ 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 FR 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 consider claims for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees; 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

(a) Service. If the respondent is confined, or if he is an incompetent, or a minor under the age of 14, the order to show cause, and the warrant of arrest, if issued, shall be served in the manner prescribed in § 242.1(c) upon the person or persons named in § 103.5a(c) of this chapter.

(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 FR 9796, Dec. 6, 1957, as amended at 37 FR 11470, June 8, 1972]

§ 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 FR 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 agents.

(b) Application. Any alien who be lieves 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 agent.

[23 FR 9123, Nov. 26, 1958, as amended at 29 FR 13242, Sept. 24, 1964; 35 FR 16362, Oct. 20, 1970]

§ 242.7 Cancellation of proceedings.

(a) If an order to show cause has been issued, any district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of

an office enumerated in § 242.1(a) 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, or that the proceedings was improvidently begun; or after actual commencement of hearing such officer may move that the case be dismissed for any of the foregoing reasons or that the case be remanded to his jurisdiction on the ground that it has come to his attention that there are involved the foreign relations of the United States which require further consideration. Cancellation of an order to show cause or termination of proceedings or remand of a case pursuant to the foregoing shall be without prejudice to the alien or the Service. 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. A special inquiry officer may, in his discretion, terminate deportation proceedings to permit respondent to proceed to a final hearing on a pending application or petition for naturalization when the respondent has established prima facie eligibility for naturalization and the case involves exceptionally appealing or humanitarian factors; in every other case, the deportation hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings. (Sec. 103, 66 Stat. 173 (8 U.S.C. 1103))

(b) The basis and purpose of the above-prescribed regulations are to empower assistant district directors for investigations to issue and cancel orders to show cause and to empower assistant district directors for investigations and certain specified officers in charge to issue warrants of arrest.

(c) Compliance with the provisions of section 553 of Title 5 of the United States Code (80 Stat. 383) as to delayed effective date is unnecessary in this instance and would serve no useful purpose because the amend

ments to §§ 242.1, 242.2, and 242.7, which concern solely an internal reallocation of delegated authority, relate to agency management.

[39 FR 20368, June 10, 1974; 39 FR 20959, June 17, 1974]

§ 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 FR 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 consider claims for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees; 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. A special inquiry officer shall have authority to certify his decision in any case to the Board of Immigration Appeals when it involves an unusually complex or novel question of law or fact. 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. The 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 FR 9797, Dec. 6, 1957, as amended at 39 FR 17304, May 15, 1974]

a trial attorney. He shall also assign a trial attorney to every case in which the Commissioner approves the submission of nonrecord information (§ 242.17(a)). In his discretion, whenever he deems such assignment necessary or advantageous, the district director may assign a trial attorney to any other case at any stage of the proceeding.

[27 FR 9646, Sept. 29, 1962, as amended at 32 FR 9631, July 4, 1967]

§ 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 FR 9797, Dec. 6, 1950]

§ 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 FR 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 FR 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