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(0) Jurisdiction by certification. The Commissioner, or any other duly authorized oficer of the Service, or the Board may in any case arising under paragraph (b) of this section require certification of such case to the Board.
(d) Powers of the Board. (1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case,
(1-a) Summary dismissal of appeals. Notwithstanding the provisions of paragraph (e) of this section, the Board may deny oral argument concerning, and summarily dismiss, any appeal in any deportation proceeding under Part 242 of this chapter in any case in which (1) the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal), (i) the only reason specified by the party concerned for his appeal involves a finding of fact or a conclusion of law which was conceded by him at the hearing, or (iii) the appeal is from an order that granted the party concerned the relief which he requested.
(2) Finality of decision. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (b) of this section. The Board may return a case to the Service for such further action as may be appropriate, without entering a final decision on the merits of the case.
(3) Rules of practice; discipline of attorneys and representatives. The Board shall have authority, with the approval of the Attorney General, to prescribe rules governing proceedings before it. It shall also determine whether any organization desiring respresentation is of a kind described in § 1.1(j) of this chapter, and shall regulate the conduct of, any may disbar for cause, attorneys, representatives of organizations, and others who appear in a representative capacity before the Board or the Service.
(e) Oral argument. Oral argument shall be heard by the Board, upon request, in any case over which the Board acquires jurisdiction by appeal or certification as provided in this part. If an appeal has been taken, request for oral
argument, if desired, shall be included in the Notice of Appeal. The Board shall have authority to fix any date or change any date upon which oral argument is to be heard. The Service may be represented in argument before the Board by an officer of the Service designated by the Commissioner. The Board shall convene for the purpose of hearing oral argument at its office in Washington, D.C., at 2:00 p.m., or such other time as it may designate on every day except Saturday, Sunday, and legal holidays.
(f) Service of Board decisions. The decision of the Board shall be in writing and copies thereof shall be transmitted by the Board to the Service and a copy shall be served upon the alien or party affected as provided in Part 292 of this chapter.
(g) Decisions of the Board as precedents. Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service in the administration of the act, and selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.
(h) Referral of cases to the Attorney General. (1) The Board shall refer to the Attorney General for review of its decision all cases which:
(1) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.
(iii) The Commissioner requests be referred to the Attorney General for review.
(2) In any case in which the Attorney General reviews the decision of the Board, the decision of the Attorney General shall be stated in writing and shall be transmitted to the Board for transmittal and service as provided in paragraph (f) of this section. (Sec. 161 of the Revised Statutes (5 U.S.C. 301), 64 Stat. 1261) (23 F.R. 9117, Nov. 26, 1958, as amended at 27 F.R. 96, Jan. 5, 1962; 27 F.R. 10789, Nov. 6, 1962; 29 F.R. 9709, July 18, 1964; 30 FR. 14772, Nov. 30, 1965) § 3.2 Reopening or reconsideration.
The Board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which & decision has been made by the Board, whether requested by the Commissioner or any other duly authorized officer of the Service, or by the party affected by the decision, shall be only upon written motion to the Board. Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deportation proceedings occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. For the purpose of this section, any final decision made by the Commissioner prior to the effective date of the Act with respect to any case within the classes of cases enumerated in $ 3.1(b) (1), (2), (3), (4), or (5) shall be regarded as a decision of the Board. (27 F.R. 96, Jan. 5, 1962) § 3.3 Notice of appeal.
(a) A party affected by a decision who is entitled under this chapter to appeal to the Board shall be given notice of his right to appeal. An appeal shall be taken by filing Notice of Appeal, Form I-290A, in triplicate, with the officer of the Service having administrative jurisdiction over the case, within the time specified in the governing sections of this chapter. The certification of a case as provided in this part shall not relieve the party affected from compliance with the provisions of this section in the event that he is entitled, and desires, to appeal from an initial decision, nor shall it serve to extend the time specified in the applicable parts of this chapter for the taking
of an appeal. Departure from the United States of a person under deportation proceedings prior to the taking of an appeal from a decision in his case shall constitute a waiver of his right to appeal.;
(b) Fees: Except as otherwise provided in this section, a notice of appeal or a motion filed under this part by any person other than an oficer of the Seryice shall be accompanied by the appropriate fee specified by, and remitted in accordance with, the provisions of g 103.7 of this chapter. In any case in which an alien or other party affected is unable to pay the fee fixed for an appeal or a motion, he shall file with the notice of appeal or the motion his afidavit stating the nature of the motion or appeal, his belief that he is entitled to redress, and his inability to pay the required fee, and shall request permission to prosecute the appeal or motion without prepayment of such fee. When such an affidavit is filed with the oficer of the Service from whose decision the appeal is taken or with respect to whose decision the motion is addressed, such oficer shall, if he believes that the appeal or motion is not taken or made in good faith, certify in writing his reasons for such belief for consideration by the Board. The Board may, in its discretion, authorize the prosecution of any appeal or motion without prepayment of fee.
(c) Briefs. Briefs in support of or in opposition to an appeal shall be filed in triplicate with the officer of the Service having administrative jurisdiction over the case within the time fixed for appeal or within any other additional period designated by the special inquiry officer or other Service oficer who made the decision. Such oficer or the Board for good cause may extend the time for filing a brief or reply brief. The Board in its discretion may authorize the filing of briefs directly with it, in which event the opposing party shall be allowed a specified time to respond. (23 F.R. 9118, Nov. 26, 1958, as amended by Order No. 325-64, 29 F.R. 14717, Oct. 29, 1964) $ 3.4 Withdrawal of appeal.
In any case in which an appeal has been taken, the party taking the appeal may file & written withdrawal thereof with the officer with whom the notice of appeal was filed. If the appeal has been taken by a trial attorney, such written withdrawal may be made by the district
director or regional commissioner having initial decision is made that the case will administrative jurisdiction over the case be certified, the notice of certification or by the General Counsel. If the record shall be included in such decision and no in the case has not been forwarded to further notice of certification shall be the Board on appeal in accordance with required. If it is not known until after Section 3.5 the decision made in the the initial decision is made that the case case shall be final to the same extent as will be certified, the officer of the Service though no appeal had been taken. If having administrative jurisdiction over the record has been forwarded on appeal, the case shall cause a Notice of Certificathe withdrawal of the appeal shall be tion (Form I-290C) to be served upon. forwarded to the Board and, if no deci- the party affected. In either case the sion in the case has been made on the notice shall inform the party affected appeal, the record shall be returned, and that the case is required to be certified the initial decision shall be final to the to the Board and that he has the right to same extent as though no appeal had make representation before the Board, been taken. If a decision on the appeal including the making of oral argument shall have been made by the Board in and the submission of a brief. If the the case, further action shall be taken party affected desires to submit a brief, in accordance therewith. Departure It shall be submitted to the officer of the from the United States of a person who Service ha ing administrative jurisdicis the subject to deportation proceedings tion over the case for transmittal to the subsequent to the taking of an appeal Board within ten days from the date of but prior to a decision thereon shall con- receipt of the notice of certification, unstitute a withdrawal of the appeal, and less for good cause shown such oficer the initial decision in the case shall be or the Board extends the time within final to the same extent as though no which the brief may be submitted. The appeal had been taken.
case shall be certified and forwarded to (29 F.R. 2692, Feb. 26, 1964)
the Board by the officer of the Service
having administrative jurisdiction over § 3.5. Forwarding of record on appeal.
the case upon receipt of the brief, or If an appeal is taken from a decision,
upon the expiration of the time within as provided in this chapter, the entire which the brief may be submitted, or record of the proceeding shall be for
upon receipt of a written waiver of the warded to the Board by the oficer of right to submit a brief.* the Service having administrative juris
(23 F.R. 9118, Nov. 26, 1958) diction over the case upon timely receipt of the briefs of the parties, or upon
$ 3.8 Motion to reopen or motion to. expiration of the time allowed for the
reconsider. submission of such briefs.
(a) Form. Motions to reopen and [29 F.R. 2692, Feb. 26, 1964)
motions to reconsider shall be submitted
in triplicate. A request for oral argu$ 3.6 Stay of execution of decision.
ment, if desired, shall be incorporated: The decision in any proceeding under in the motion. The Board in its disthis chapter from which an appeal to cretion may grant or deny oral arguthe Board may be taken shall not be ment. Motions to reopen shall state the executed during the time allowed for new facts to be proved at the reopened! the filing of an appeal unless a waiver of hearing and shall be supported by afithe right to appeal is filed, nor shall such davits or other evidentiary material. decision be executed while an appeal is Motions to reconsider shall state the reapending or while a case is before the sons upon which the motion is based and Board by way of certification.
shall be supported by such precedent de(23 F.R. 9118, Nov. 26, 1958]
cisions as are pertinent. In any case
in which a deportation order is in effect, $ 3.7 Notice of certification.
there shall be included in the motion to Whenever in accordance with the pro
reopen or reconsider such order a statevisions of g 3.1(c) a case is required to be ment by or on behalf of the moving party certified to the Board, the alien or other declaring whether the subject of the departy affected shall be given notice of portation order is also the subject of any certification. A case shall be certified pending criminal proceeding, under seconly after an initial decision has been tion 242(e) of the Act, and, if so, the made and before an appeal has been current status of that proceeding. If taken. If it is known at the time the 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 prose-, cution 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 afirm, 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)
SUBCHAPTER B IMMIGRATION REGULATIONS
PART 100_STATEMENT OF $ 100.1 Introduction.
The following sections describe the Sec.
organization of the Immigration and 100.1 Introduction.
Naturalization Service, including state100.2 Organization and delegations.
ments of delegations of final authority, 100.3 Places where, and methods whereby, indicate the established places at which,
Information may be secured or sub- and methods whereby, the public may mittals or requests made.
secure information, direct attention to 100.4 Field service.
the regulations relating to the general 100.5 Regulations.
course and method by which its func100.6 Rule making.
tions are channeled and determined.
Part 103 oî this chapter sets forth the AUTHORITY: The provisions of this part
procedures governing the availability of 100 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103.
Service opinions, orders, and records.
$ 100.2 Organization and delegations. SOURCE: The provisions of this Part 100 appear at 32 F.R. 9616, July 4, 1967, unless The Attorney General has delegated to otherwise noted.
the Commissioner, the principal officer of
the Immigration and Naturalization Service, authority to direct the administration of the Service and enforce the Act and all other laws relating to immigration and naturalization, except the authority delegated to the Board of Immigration Appeals. The Commissioner has delegated his authority to the following-described officers of the Service, within their respective operational areas of activity: Associate Commissioner, Operations; Associate Commissioner, Management; Deputy Associate Commissioner, Domestic Control; Deputy Associate Commissioner, Travel Control; Deputy Associate Commissioner, Security; Deputy Association Commissioner, Administrative Services; Assistant Commissioner, Investigations; Assistant Commissioner, Enforcement; Assistant Commissioner, Examinations; Assistant Commissioner, Special Projects; Assistant Commissioner, Field Inspection and Security; Assistant Commissioner, Naturalization; Assistant Commissioner, Administration; Assistant Commissioner, Detention and Deportation; General Counsel; Chief Special Inquiry Officer; regional commissioners; district directors; officers in charge; immigration officers; special inquiry officers, and chief patrol inspectors. (32 F.R. 9616, July 4, 1967, as amended at 34 F.R. 1007, Jan. 23, 1969) $ 100.3 Places where, and methods
whereby, information may be secured
or submittals or requests made. Any person desiring information relative to a matter handled by the Immigration and Naturalization Service, or any person desiring to make a submittal or request in connection with such a matter should communicate cither qrally or in writing with a district headquarters office or suboffice of the Service. If the office receiving the communication does not have jurisdiction to handle the matter, the communication, if written, will be forwarded to the proper office of the Service or, if oral, the person will be advised how to proceed. When the submittal or request consists of a formal application for one of the documents, privileges, or other benefits provided for in the laws administered by the Service or the regulations implementing those laws, the instructions on the form as to preparation and place of submission should be followed. In such cases, the provi
sions of this chapter dealing with the particular type of application may be consulted for regulatory provisions. § 100.4 Field service.
The territory within which oficials of the Immigration and Naturalization Service are located is divided into regions, districts, suboffices, and Border Patrol sectors as follows:
(a) Regional Offices. The Northeast Regional Office, located in Burlington, Vermont, has jurisdiction over districts 1, 2, 3, 7, 21, 22, and 23 and Border Patrol sectors 1, 2, 3, and 4. The Southeast Regional Office, located in Richmond, Va., has jurisdiction over districts 4, 5, 6, 24, 25, 26, 27, and 28 and Border Patrol sectors 21 and 22. The Northwest Regional Office, located in St. Paul, Minn., has jurisdiction over districts 8, 9, 10, 11, 12, 29, 30, 31, and 32 and Border Patrol sectors 5, 6, 7, 8, and 9. The Southwest Regional Ofice, located in San Pedro, Calif. has jurisdiction over districts 13, 14, 15, 16, 17, 18, 19, 35, and 36, and Border Patrol sectors 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20.
(b) District Offices. The following districts, which are designated by numbers, have fixed headquarters and are divided as follows:
1. St. Albans, Vt. The district office in St. Albans, Vt., has jurisdiction over the State of Vermont; also, over the U.S. immigration office located in the Province of Quebec, Canada.
2. Boston, Mass. The district office in Boston, Mass., has jurisdiction over the States of New Hampshire, Massachusetts, and Rhode Island.
3. New York City, N.Y. The district office in New York City, N.Y., has jurisdiction over the following counties in the State of New York: Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, and Westchester; and for primary inspection purposes only, the following counties in the State of New Jersey: Bergen, Essex, Hudson, Middlesex, and Union; also, over the U.S. immi. gration office located in Hamilton, Bermuda.
4. Philadelphia, Pa. The district office in Philadelphia, Pa., has jurisdiction over the States of Pennsylvania, Delaware, and West Virginia.
5. Baltimore, Md. The district office in Baltimore, Md., has jurisdiction over the State of Maryland.
6. Miami, Fla. The district office in Miami, Fla., has jurisdiction over the State of Florida, Cuba, the Caribbean Islands, except the Dominican Republic, and South America; also, over the U.S. immigration office located in Nassau, Bahamas.