that is necessary to resolve material factual issues in dispute. An evidentiary hearing extending beyond issues related to the basis for a mandatory denial of the application pursuant to 8 CFR 208.14 or 208.16 is not necessary once the immigration judge has determined that such a denial is required. (1) Evidentiary hearings on applications for asylum or withholding of deportation will be closed to the public unless the applicant expressly requests that it be open pursuant to 8 CFR 236.2. (2) Nothing in this section is intended to limit the authority of the immigration judge properly to control the scope of any evidentiary hearing. (3) During the exclusion hearing, the applicant shall be examined under oath on his application and may present evidence and witnesses on his own behalf. The applicant has the burden of establishing that he is a refugee as defined in section 101(a)(42) of the Act pursuant to the standard set forth in §208.13 of this chapter. (4) The trial attorney for the government may call witnesses and present evidence for the record, including information classified under E.O. 12356 (3 CFR, 1982 Comp., p. 166), provided the immigration judge or the Board has determined that such information is relevant to the hearing. When the immigration judge receives such classified information he shall inform the applicant. The agency that provides the classified information to the immigration judge may provide an unclassified summary of the information for release to the applicant whenever it determines it can do so consistently with safeguarding both the classified nature of the information and its source. The summary should be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence. A decision based in whole or in part on such classified information shall state that such information is material to the decision. (d) The decision of an immigration judge to grant or deny asylum or withholding of deportation shall be communicated to the applicant and to the trial attorney for the government. An adverse decision will state why asylum or withholding of deportation was denied. [55 FR 30686, July 27, 1990, as amended at 59 FR 62302, Dec. 5, 1994; 60 FR 34090, June 30, 1995] § 236.4 Renewal of application for adjustment of status under section 245 of the Act. An adjustment application by an alien paroled under section 212(d)(5) of the Act, which has been denied by the district director, may be renewed in exclusion proceedings under section 236 of the Act before an immigration judge under the following two conditions: First, the denied application must have been properly filed subsequent to the applicant's earlier inspection and admission to the United States; second, the applicant's later absence from and return to the United States must have been under the terms of an advance parole authorization on Form I-512 granted to permit the applicant's absence and return to pursue the previously filed adjustment application. [43 FR 16445, Apr. 19, 1978] $236.5 Decision of the immigration judge; notice to the applicant. (a) Decision. The Immigration Judge shall inform the applicant of his or her decision in accordance with §3.35 of this chapter. (b) Advice to alien ordered excluded. An alien ordered excluded shall be furnished with Form I-296, Notice to Alien Ordered Excluded by Immigration Judge, at the time of an oral decision by the immigration judge or upon service of a written decision. (c) Holders of refugee travel documents. Aliens who are the holders of valid unexpired refugee travel documents may be ordered excluded only if they are found to be inadmissible under section 212(a) (9), (10), (12), (23), (27), (28), (29), or (31) of the Act, and it is determined that on the basis of the acts for which they are inadmissible there are compelling reasons of national security or public order for their exclusion. If the immigration judge finds that the alien is inadmissible but determines that there are no compelling reasons of national security or public order for exclusion, the immigration judge shall § 236.9 Visa Waiver Pilot Program. Pursuant to section 217(b)(4)(A) of the Act, an alien who applies for admission to the United States under the provisions of that section must waive any right to review or appeal an immigration officer's determination as to the admissibility of the alien at a port of entry, other than on the basis of an application for asylum. An alien applicant for admission under section 217 of the Act shall be removed from the United States upon a determination by an immigration officer (port director, officer-in-charge, or officer acting in either capacity) that the alien is inadmissible in accordance with procedures in §217.4(b) of this chapter except that such an alien who applies for asylum in the United States shall be referred to an immigration judge for further inquiry as provided in section 235 of the Act and §236.3 of this part. [53 FR 24903, June 30, 1988] § 236.10 Exclusion of alien seeking admission under section 101(a)(15)(S) of the Act. An alien who applies for admission under the provisions of section 101(a)(15)(S) of the Act who is determined by an immigration officer not to be eligible for admission under that section or to be excludable from the United States under one or more of the grounds of excludability listed in section 212 of the Act, which have not been previously waived by the Commissioner, will be taken into custody and will be subject to the exclusion procedures contained in 8 CFR part 236. [60 FR 44268, Aug. 25, 1995] Sec. PART 237-DEPORTATION OF EXCLUDED ALIENS 237.1 Stay of deportation of excluded alien. 237.2 Notice to surrender for deportation. 237.3 Cost of maintenance not assessed. 237.4 [Reserved] 237.5 Notice to transportation line of alien's exclusion. 237.6 Deportation. AUTHORITY: 8 U.S.C. 1103, 1227, and 1255. $237.1 Stay of deportation of excluded alien. The district director in charge of the port of arrival may stay the immediate deportation of an excluded alien pursuant to sections 237 (a) and (d) of the act under such conditions as he may prescribe. [23 FR 5818, Aug. 1, 1958] § 237.2 Notice to surrender for deportation. An alien who has been finally excluded pursuant to part 236 of this chapter may at any time surrender himself to the custody of the Service and shall surrender himself to such custody upon notice in writing of the time and place for his surrender. The Service may take the alien into custody at any time. An alien taken into custody either upon notice to surrender or by arrest shall not be deported less than 72 hours thereafter without his consent thereto filed in writing with the district director in charge of the place of his detention. An alien in foreign contiguous territory shall be informed that he may remain there in lieu of surrendering to the Service, but that he will be deemed to have acknowledged the execution of the order of exclusion and deportation in his case upon his failure to surrender at the time and place prescribed. [30 FR 4411, Apr. 6, 1965] §237.3 Cost of maintenance not assessed. A claim pursuant to section 237(a)(2)(B) of the Act shall be established to the satisfaction of the district director in charge of the port of arrival, from whose adverse decision no appeal shall lie. The district director shall afford the line a reasonable time within which to submit affidavits and briefs to support its claim. [23 FR 5818, Aug. 1, 1958. Redesignated at 26 FR 2113, Mar. 11, 1961] § 237.4 [Reserved] $237.5 Notice to transportation line of alien's exclusion. (a) An excluded alien shall, immediately or as promptly as the circumstances permit, be offered for deportation to the master, commanding officer, purser, person in charge, agent, owner, or consignee of the vessel or aircraft on which the alien is to be deported, as determined by the district director, with a written notice specifying the cause of exclusion, the class of travel in which such alien arrived and is to be deported, and with the return of any documentation which will assist in effecting his deportation. If special care and attention is required, the provisions of § 243.7 of this chapter shall apply. (b) Failure of the carrier to accept for removal an alien who has been ordered excluded and deported shall result in the carrier being assessed any costs incurred by the Service for detention after the carrier's failure to accept the alien for removal including the cost of any transportation. The User Fee Account shall not be assessed for expenses incurred because of the carrier's violation of the provisions of section 237 of the Immigration and Nationality Act and this paragraph. The Service will, at the carriers option, re tain custody of the excluded alien for an additional seven days beyond the date of the deportation/exclusion order. If, after the third day of this additional seven day period, the carrier has not made all the necessary transportation arrangements for the excluded alien to be returned to his/her point of embarkation by the end of the additional seven day period, the Service will make the arrangements and bill the carrier for its costs. [27 FR 1479, Feb. 17, 1962, as amended at 54 FR 102, Jan. 4, 1989] $237.6 Deportation. (a) Definitions of terms. For the purposes of this section, the following terms mean: (1) Adjacent island-as defined in section 101(b)(5) of the Act. (2) Foreign contiguous territory-any country sharing a common boundary with the United States. (3) Residence in foreign contiguous territory or adjacent island-any physical presence, regardless of intent, in a foreign contiguous territory or an adjacent island if the government of such territory or island agrees to accept the alien. (4) Aircraft or vessel-any conveyance and other mode of travel by which arrival is effected. (5) Next available flight—is to be the carrier's next regularly scheduled departure to the excluded alien's point of embarkation regardless of seat availability. If the carrier's next regularly scheduled departure to the excluded aliens point of embarkation is full, the carrier has the option of arranging for return transportation on other carriers which service the excluded aliens point of embarkation. (b) Place to which deported. Any alien (other than an alien crewmember or an alien who boarded an aircraft or vessel in foreign contiguous territory or an adjacent island) who is ordered excluded shall be deported to the country where the alien boarded the vessel or aircraft on which the alien arrived in the United States. If that country refuses to accept the alien, the alien shall be deported to: (1) The country of which the alien is a subject, citizen, or national; (2) The country where the alien was born; (3) The country where the alien has a residence; or (4) Any country willing to accept the alien. (c) Contiguous territory and adjacent islands. Any alien ordered excluded who boarded an aircraft or vessel in foreign contiguous territory or in any adjacent island shall be deported to such foreign contiguous territory or adjacent island if the alien is a native, citizen, subject, or national of such foreign contiguous territory or adjacent island, or if the alien has a residence in such foreign contiguous territory or adjacent island. Otherwise, the alien shall be deported, in the first instance, to the country in which is located the port at which the alien embarked for such foreign contiguous territory or adjacent island. (d) Land border pedestrian arrivals. Any alien ordered excluded who arrived at a land border on foot shall be deported in the same manner as if the alien had boarded a vessel or aircraft in foreign contiguous territory. [47 FR 44237, Oct. 7, 1982, as amended at 54 FR 102, Jan. 4, 1989] mented on Form I-420. The contracts with transportation lines referred to in section 238(c) of the Act shall be made by the Commissioner on behalf of the government and shall be documented on Form I-426. The contracts with transportation lines desiring their passengers to be preinspected at places outside the United States shall be made by the Commissioner on behalf of the government and shall be documented on Form I-425; except that contracts for irregularly operated charter flights may be entered into by the Executive Associate Commissioner for Operations or an Immigration Officer designated by the Executive Associate Commissioner for Operations and having jurisdiction over the location where the inspection will take place. [57 FR 59907, Dec. 17, 1992] $238.2 Transportation lines bringing aliens to the United States from or through foreign_contiguous territory or adjacent islands. Form I-420 shall be signed in duplicate and forwarded to the Headquarters Office of Inspections. After acceptance, each Regional Office of Inspections, the district office and the carrier will be furnished with one copy of the agreement. The transmittal letter to the Headquarters Office of Inspections shall indicate whether the signatory to the agreement is a subsidiary or affiliate of a line which has already signed a similar agreement. Correspondence regarding ancillary contracts for office space and other facilities to be furnished by transportation lines at Service stations in Canada shall be similarly handled. [57 FR 59907, Dec. 17, 1992] $238.3 Aliens in immediate and continuous transit. (a) Form 1-426 agreements. A transportation line bringing aliens to the United States pursuant to §212.1(f)(1) of this chapter shall enter into an agreement on Form I-426. Such an agreement shall be negotiated directly by the Service's Headquarters Inspections Office and the head offices of the transportation lines. (b) Signatory lines. Currently effective agreements on Form I-426 exist with the following: Ceskoslovenske Aerolinie (Czechoslovak Airlines) Chandris America Lines Inc., as general agents for: Okeania S.A. (Australis), Chandris America Lines S.A. (Amerikanis), Australian Line S.A. (Ellinis), and Themistocles Nav. S.A. (Queen Frederica). Challenge International Airlines. Chandris (USA) Inc., as agents for Chandris Lines. Chandris (USA) Inc., as agents for China Merchants Steam Navigation Co., Ltd. |