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liminary examination. Such employee shall examine and cross-examine witnesses produced in behalf of the Government or the petitioner and present evidence pertinent to the petitioner's admissibility to citizenship. The designated examiner may take such part in the interrogation of the petitioner and witnesses and the introduction of evidence as he may deem necessary.

(d) Stenographic reporting of proceedings; mechanical recording equipment. A stenographer shall be in attendance whenever, in the opinion of the designated examiner, such attendance is desirable, and in every case to which an examining officer is assigned. The stenographer shall record verbatim the entire proceedings, including the oaths administered and rulings on objections, but shall not record arguments in support of objections, or statements made off the record with the consent of the petitioner. The stenographer shall certify that the transcribed minutes constitute a complete and accurate record of the examination. Whenever, in the opinion of the designated examiner the use of mechanical recording equipment in lieu of a stenographer is deemed desirable, the proceedings may be recorded by such equipment.

(e) Issuance of subpenas; attendance and mileage fees. Subpenas requiring the attendance of witnesses or the production of documentary evidence, or both, may be issued by the designated examiner, upon his own volition or upon written application of the petitioner or his attorney or representative, the examining officer, or the Service. Such written application shall specify, as nearly as may be, the relevance, materiality, and scope of the testimony or documentary evidence sought and show affirmatively that the testimony or documentary evidence cannot otherwise be produced. Subpenas shall be issued on Form I138 and due record shall be made of their service. The subpena may be served by any person over 18 years of age, not a party to the case, designated to make such service by the district director. Mileage and fees for witnesses subpenaed under this section shall be paid by the party at whose instance the subpena is issued at rates allowed

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and under conditions prescribed by the naturalization court in which the petition is pending. Before issuing a subpena the designated examiner may require a deposit of an amount adequate to cover the fees and mileage involved. If the witness subpenaed neglects or refuses to testify or produce documentary evidence as directed by the subpena, the district director shall request the United States Attorney for the proper district to report such neglect or refusal to any court exercising naturalization jurisdiction and to file a motion in such court for an order directing the witness to appear and testify and to produce the documentary evidence described in the subpena.

(f) Briefs. At the conclusion of the preliminary examination the petitioner or his attorney or representative, and the examining officer if one was assigned, may submit briefs in support of arguments made or issues raised at the examination.

(g) Representation by attorney or representative; absence of representative; advice to petitioner. The petitioner may be represented by an attorney or representative who has filed an appearance in accordance with Part 292 of this chapter. If at any stage of the preliminary examination it appears to the designated examiner that he may recommend denial of the petition, or granting thereof with the facts to be presented to the court, he shall advise the petitioner of his right to be represented by an attorney or representative. A continuance of the examination shall be granted upon the petitioner's motion for the purpose of obtaining an attorney or representative. The petitioner's attorney or a representative shall be permitted to be present at all times during the preliminary examination or at any subsequent examinations and the petitioner shall not in any such examination or subsequent examinations be interrogated in the absence of his attorney or representative, unless the petitioner waives such appearance. The attorney or a representative shall be permitted to offer evidence to meet any evidence presented or adduced by the Government or the designated examiner. A petitioner who is not represented by an attorney or a representative shall be entitled to

all the benefits and the privileges provided for in this section.

(h) Designation of Service employees to conduct preliminary examinations. All employees of the Service who have been designated to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts under the provisions of section 333 of the Nationality Act of 1940, as amended, and whose designations are still in force on December 24, 1952, are hereby designated under the provisions of section 335 of the Immigration and Nationality Act to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts. Designations under this paragraph and under paragraph (b) of this section shall remain in force until revoked.

[22 FR 9821, Dec. 6, 1957, as amended at 23 FR 2673, Apr. 23, 1958; 39 FR 40580, Nov. 19, 1974]

§ 335.12 Recommendations of the designated examiner and the regional commissioner; notice.

As soon as practicable after conclusion of the preliminary examination, the designated examiner shall prepare an appropriate recommendation to the court. If the recommendation is for denial, or for granting with the facts to be presented to the court, the designated examiner shall prepare a memorandum summarizing the evidence, and setting forth findings of fact and conclusions of law, and his recommendation. No evidence dehors the record or evidence not admissible in judicial proceedings under recognized rules of evidence shall be considered in the preparation of the memorandum. The memorandum shall be submitted before final hearing to the regional commissioner, in those cases or classes of cases designated by him, for review and recommendation. If the regional commissioner does not agree with the recommendation of the designated examiner, he shall prepare an appropriate memorandum, with findings of fact, conclusions of law, and the recommendation of the Service, subject

to review and approval by the Commissioner in those cases or classes of cases designated by him, for presentation to the court with the designated examiner's memorandum. In the preparation of memoranda, designated examiners and regional commissioners shall be bound by the interpretations and rulings by the Attorney General or the Commissioner on Questions of law.

[38 FR 29878, Oct. 30, 1973]

§ 335.13 Notice of recommendation of designated examiner.

(a) Recommendation that petition be denied. When the designated examiner proposes to recommend denial of the petition, the petitioner or his attorney or representative shall be notified thereof and furnished a copy of the designated examiner's memorandum. The notice shall be given in conjunction with notification of the date, place, and time of holding the final hearing. The notice shall be sent by certified mail, with return receipt requested, after any review made by the regional commissioner.

(b) Recommendation that petition be granted. When the designated examiner proposes to recommend granting of the petition and to present the facts and issues to the court, the petitioner or his attorney or representative shall be notified of the recommendation and furnished a copy of the designated examiner's memorandum prior to the date of the hearing, and after any review made by the regional commissioner.

(c) Disagreement between recommendations of designated examiner and the regional commissioner. In those cases reviewed by the regional commissioner in which his views and recommendations do not agree with those of the designated examiner, the notice required by paragraphs (a) and (b) of this section shall also advise the petitioner of the recommendation of the regional commissioner and that both recommendations will be presented to the court. There shall also be enclosed with such notice a copy of the regional commissioner's memorandum.

(d) Briefs. If the petitioner intends to file a brief or memorandum at the

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which shall be attached to the original petition and the other to the duplicate petition.

§ 335b.2 Substitution of witnesses.

When the witnesses who verified the petition have not been excused from appearance at the final hearing and the petitioner is unable to produce them, other witnesses may be presented upon notice given by the petitioner to the district director within a reasonable time in advance of the date set for final hearing. If any of the verifying witnesses appear to be incompetent and the petitioner has acted in good faith in producing them, other witnesses may be substituted upon similar notice. A final hearing shall not be held until after examination of the substitute witnesses by a Service representative and an affidavit on Form N-451 has been executed, in duplicate, by the witnesses before such representative or the clerk of the court in the manner described in § 335b.1.

§ 335b.3 Depositions.

(a) In the United States. Depositions may be used to prove compliance with the requirements for naturalization during any period except the minimum period of State residence. Such depositions shall be taken only upon written interrogatories on Form N462A. Except as otherwise provided in this section, they shall be made in the United States before an employee of the Service authorized to administer oaths and take depositions under Part 332d of this chapter, unless there is a likelihood of unusual delay or hardship, in which case the district director may authorize such depositions to be taken before a postmaster, without charge, or before a notary public or other person authorized to administer oaths for general purposes. In cases in which the depositions are taken other than before an employee of the Service or a postmaster, the petitioner, independently of the Service, shall arrange with the officer who will take the depositions to defray all costs and expenses incident thereto. The petitioner or his attorney or representative may be present when the depositions are taken. Depositions taken

all the benefits and the privileges provided for in this section.

(h) Designation of Service employees to conduct preliminary examinations. All employees of the Service who have been designated to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts under the provisions of section 333 of the Nationality Act of 1940, as amended, and whose designations are still in force on December 24, 1952, are hereby designated under the provisions of section 335 of the Immigration and Nationality Act to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts. Designations under this paragraph and under paragraph (b) of this section shall remain in force until revoked.

[22 FR 9821, Dec. 6, 1957, as amended at 23 FR 2673, Apr. 23, 1958; 39 FR 40580, Nov. 19, 1974]

§ 335.12 Recommendations of the designated examiner and the regional commissioner; notice.

As soon as practicable after conclusion of the preliminary examination, the designated examiner shall prepare an appropriate recommendation to the court. If the recommendation is for denial, or for granting with the facts to be presented to the court, the designated examiner shall prepare a memorandum summarizing the evidence, and setting forth findings of fact and conclusions of law, and his recommendation. No evidence dehors the record or evidence not admissible in judicial proceedings under recognized rules of evidence shall be considered in the preparation of the memorandum. The memorandum shall be submitted before final hearing to the regional commissioner, in those cases or classes of cases designated by him, for review and recommendation. If the regional commissioner does not agree with the recommendation of the designated examiner, he shall prepare an appropriate memorandum, with findings of fact, conclusions of law, and the recommendation of the Service, subject

to review and approval by the Commissioner in those cases or classes of cases designated by him, for presentation to the court with the designated examiner's memorandum. In the preparation of memoranda, designated examiners and regional commissioners shall be bound by the interpretations and rulings by the Attorney General or the Commissioner on Questions of law.

[38 FR 29878, Oct. 30, 1973]

§ 335.13 Notice of recommendation of designated examiner.

(a) Recommendation that petition be denied. When the designated examiner proposes to recommend denial of the petition, the petitioner or his attorney or representative shall be notified thereof and furnished a copy of the designated examiner's memorandum. The notice shall be given in conjunction with notification of the date, place, and time of holding the final hearing. The notice shall be sent by certified mail, with return receipt requested, after any review made by the regional commissioner.

(b) Recommendation that petition be granted. When the designated examiner proposes to recommend granting of the petition and to present the facts and issues to the court, the petitioner or his attorney or representative shall be notified of the recommendation and furnished a copy of the designated examiner's memorandum prior to the date of the hearing, and after any review made by the regional commissioner.

(c) Disagreement between recommendations of designated examiner and the regional commissioner. In those cases reviewed by the regional commissioner in which his views and recommendations do not agree with those of the designated examiner, the notice required by paragraphs (a) and (b) of this section shall also advise the petitioner of the recommendation of the regional commissioner and that both recommendations will be presented to the court. There shall also be enclosed with such notice a copy of the regional commissioner's memorandum.

(d) Briefs. If the petitioner intends to file a brief or memorandum at the

final hearing, he shall furnish a copy thereof to the Service office from which the notice on Form N-425 emanated at least 5 days prior to the date of the final hearing. Failure to do so will result in a motion for a continuance if deemed essential for the proper presentation of the Government's case.

[22 FR 9822, Dec. 6, 1957, as amended at 35 FR 17530, Nov. 14, 1970]

PART 335a-TRANSFER, WITHDRAWAL OR FAILURE TO PROSECUTE PETITION FOR NATURALIZATION

Sec. 335a.11

Transfer of petition; procedure. 335a.12 Withdrawal of or failure to prosecute petition; procedure.

§ 335a.11 Transfer of petition; procedure. See § 334.17 of this chapter.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103)

[22 FR 9822, Dec. 6, 1957)

§ 335a.12 Withdrawal of or failure to prosecute petition; procedure.

See § 334.18 of this chapter.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103) [22 FR 9822, Dec. 6, 1957]

PART 335b-PROOF OF QUALIFICATIONS FOR NATURALIZATION:

WITNESSES; DEPOSITIONS

Sec.

335b.1 Proof of residence and other qualifications.

335b.2 Substitution of witnesses. 335b.3 Depositions.

AUTHORITY: Secs. 103, 332, 335, 66 Stat. 173, 252, 255; 8 U.S.C. 1103, 1443, 1446.

SOURCE: 23 FR 5820, Aug. 1, 1958, unless otherwise noted.

§ 335b.1 Proof of residence and other qualifications.

If oral testimony is taken at the preliminary examination or at the final hearing from witnesses other than the verifying witnesses to cover the petitioner's qualifications during the statutory period, affidavits on Form N-451 shall be executed by them, in duplicate, before the designated examiner or the clerk of the court, one copy of

which shall be attached to the original petition and the other to the duplicate petition.

§ 335b.2 Substitution of witnesses.

When the witnesses who verified the petition have not been excused from appearance at the final hearing and the petitioner is unable to produce them, other witnesses may be presented upon notice given by the petitioner to the district director within a reasonable time in advance of the date set for final hearing. If any of the verifying witnesses appear to be incompetent and the petitioner has acted in good faith in producing them, other witnesses may be substituted upon similar notice. A final hearing shall not be held until after examination of the substitute witnesses by a Service representative and an affidavit on Form N-451 has been executed, in duplicate, by the witnesses before such representative or the clerk of the court in the manner described in § 335b.1.

§ 335b.3 Depositions.

(a) In the United States. Depositions may be used to prove compliance with the requirements for naturalization during any period except the minimum period of State residence. Such depositions shall be taken only upon written interrogatories on Form N462A. Except as otherwise provided in this section, they shall be made in the United States before an employee of the Service authorized to administer oaths and take depositions under Part 332d of this chapter, unless there is a likelihood of unusual delay or hardship, in which case the district director may authorize such depositions to be taken before a postmaster, without charge, or before a notary public or other person authorized to administer oaths for general purposes. In cases in which the depositions are taken other than before an employee of the Service or a postmaster, the petitioner, independently of the Service, shall arrange with the officer who will take the depositions to defray all costs and expenses incident thereto. The petitioner or his attorney or representative may be present when the depositions are taken. Depositions taken

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