be advised of his right to representation by counsel of his own choice at no expense to the Government.

[22 F.R. 9796, Dec. 6, 1957, as amended at 37 F.R. 11470, June 8, 1972; 37 F.R. 28046, Dec. 20, 1972]

§ 242.2 Apprehension, custody, and detention.

(a) Warrant of arrest. At the commencement of any proceeding under this part, or at any time thereafter and up to the time the respondent becomes subject to supervision under the authority contained in section 242 (d) of the Act, the respondent may be arrested and taken into custody under the authority of a warrant of arrest. However, such warrant may be issued by no one other than a district director, acting district director, or deputy district director, and then only whenever, in his discretion, it appears that the arrest of the respondent is necessary or desirable. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any district director, acting district director, or deputy district director may authorize its cancellation. When a warrant of arrest is served under this part, the respondent shall have explained to him the contents of the order to show cause, the reason for his arrest and his right to be represented by counsel of his own choice at no expense to the Government. He shall be advised that any statement he makes may be used against him. He shall also be informed whether he is to be continued in custody or, if release from custody has been authorized, of the amount and conditions of the bond or the conditions under which he may be released. A respondent on whom a warrant of arrest has been served may apply to the district director, acting district director, or deputy district director for release or for amelioration of the conditions under which he may be released. The district director, acting district director, or deputy district director, when serving the warrant of arrest and when determining any application pertaining thereto, shall furnish the respondent with a notice of decision, which may be on Form I-286, indicating whether custody will be continued or terminated, specifying the conditions, if any, under which release is permitted, and advising the respondent appropriately whether he may apply to a special inquiry officer pursuant to paragraph (b) of this section for release or modification of the conditions

of release or whether he may appeal to the Board. A direct appeal to the Board from a determination by a district director, acting district director, or deputy district director shall not be allowed except as authorized by paragraph (b) of this section.

(b) Authority of special inquiry officers; appeals. After an initial determination pursuant to paragraph (a) of this section, and at any time before a deportation order becomes administratively final, upon application by the respondent for release from custody or for amelioration of the conditions under which he may be released, a special inquiry officer may exercise the authority contained in section 242 of the Act to continue or detain a respondent in, or release him from, custody, and to determine whether a respondent shall be released under bond, and the amount thereof, if any. Application for the exercise of such authority may be made to any available special inquiry officer who is stationed at the Service office which has administrative jurisdiction over the proceeding under the order to show cause or who conducts hearings there. If no such special inquiry officer is available, application may be made to any available special inquiry officer stationed in the region wherein said Service office is located. The determination of the Special inquiry officer in respect to custody status or bond shall be entered on Form I-342 at the time such determination is made and shall be accompanied by a memorandum by the special inquiry officer as to the reasons for his determination. The special inquiry officer shall promptly notify the respondent and the Service of such determination. Consideration under this paragraph by the special inquiry officer of an application or request of an alien regarding custody or bond shall be separate and apart from any deportation hearing or proceeding under this part, and shall form no part of such hearing or proceeding or of the record thereof. The determination of the special inquiry officer as to custody status or bond may be based upon any information which is available to the special inquiry officer, or which is presented to him by the alien or the Service. The alien and the Service may appeal to the Board of Immigration Appeals from any such determination. After a deportation order becomes administratively final, the respondent may appeal directly to the Board from a determination by the district director,

acting district director, or deputy district director, except that no appeal shall be allowed when the Service notifies the alien that it is ready to execute the order of deportation and takes him into custody for that purpose. An appeal to the Board shall be taken from a determination by a special inquiry officer or from an appealable determination by a district director, acting district director, or deputy district director by filing a notice of appeal with the district director within 5 days after the date when written notification of the determination is served upon the respondent and the Service. Upon the filing of a notice of appeal, the district director shall immediately transmit to the Board all records and information pertaining to the determination from which the appeal has been taken. The filing of such an appeal shall not operate to delay compliance, during the pendency of the appeal, with the custody directive from which appeal is taken, or to stay the administrative proceeding or deportation.

(c) Revocation. When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, or deputy district director, in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled. The provisions of paragraph (b) of this section shall govern availability to the respondent of recourse to other administrative authority for release from custody.

Until

(d) Supervision. an alien against whom a final order of deportation has been outstanding for more than six months is deported, he shall be subject to supervision by a district director, acting district director, or deputy district director, and required to comply with the provisions of section 242(d) of the Act relating to his availability for deportation.

(e) Privilege of communication. Every detained alien shall be notified that he may communicate with the consular or diplomatic officers of the country of his nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever nationals of the following countries are detained in exclusion or expulsion proceedings

[28 F.R. 8280, Aug. 13, 1963, as amended at 32 F.R. 5619, Apr. 6, 1967; 36 F.R. 317, Jan. 9, 1971; 36 F.R. 2553, Feb. 6, 1971; 37 F.R. 11470, June 8, 1972]

§ 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 F.R. 9796, Dec. 6, 1957, as amended at 37 F.R. 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 F.R. 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 deporation 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 F.R. 9123, Nov. 26, 1958, as amended at 29 F.R. 13242, Sept. 24, 1964; 35 F.R. 16362, Oct. 20, 1970]

§ 242.7 Cancellation of proceedings.

If an order to show cause has been issued, any district director, acting district director, or deputy district director 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 proceeding 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 in

volved 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 canceled or proceedings have been terminated pursuant to this section, any outstanding warrant of arrest shall also be canceled. A special inquiry officer may, in his discretion, terminate deportation proceedings to permit respondent to proceed to & 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 stage of the proceedings.

[31 F.R. 5547, Apr. 8, 1966, as amended at 32 F.R. 9631, July 4, 1967]

§ 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 F.R. 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 deporta

tion as provided by section 242 (b) of the Act; 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. This 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 F.R. 9797, Dec. 6, 1957, as amended at 26 F.R. 12111, Dec. 19, 1961; 26 F.R. 12242, Dec. 22, 1961; 32 F.R. 9631, July 4, 1967]

§ 242.9 Trial attorney.

(a) Authority. When an additional immigration officer is assigned to a proceeding under this part to perform the duties of a trial attorney, he shall present on behalf of the Government evidence material to the issues of deportability and any other issues which may require disposition by the special inquiry officer. The trial attorney is authorized to appeal from a decision of the special inquiry officer pursuant to § 242.21 and to move for reopening or reconsideration pursuant to § 242.22.

(b) Assignment. The district director shall assign a trial attorney to every case within the provisions of § 242.16(c), to every case in which an unrepresented

respondent is incompetent or under 16 and is not accompanied by a guardian, relative or friend, and to every case in which the special inquiry officer requests assignment of 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 F.R. 9646, Sept. 29, 1962, as amended at 32 F.R. 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 F.R. 9797, Dec. 6, 1957]

§ 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]

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 F.R. 9797, Dec. 6, 1957]

§ 242.13 Postponement and adjourn ment 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 reasonable adjournment either at his own instance or, for good cause shown, upon application by the respondent or the trial attorney. A con

tinuance of the hearing for the purpose of allowing the respondent to obtain representation shall not be granted more than once unless sufficient cause for the granting of more time is shown. [28 F.R. 9504, Aug. 30, 1963] § 242.14 Evidence.

(a) Sufficiency. A determination of deportability shall not be valid unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true. (b) [Reserved]

The spe

(c) Use of prior statements. cial inquiry officer may receive in evidence any oral or written statement which is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.

(d) Testimony. Testimony of witnesses appearing at the hearing shall be under oath or affirmation administered by the special inquiry officer.

(e) Depositions. Either at his own instance or on application of the trial attorney or the respondent, after due notice to all parties, a special inquiry officer may, if satisfied that a witness is not reasonably available at the place of hearing and that his testimony or other evidence is essential, order the taking of a deposition. Such order may prescribe and limit the content, scope, or manner of taking the deposition, may direct the production of documentary evidence, and may authorize the issuance of a subpoena by the officer designated to take the deposition in the event of the refusal or willful failure of a witness within the United States, after due notice, to appear, give testimony, or produce documentary evidence. Testimony shall be given under oath or affirmation and shall be recorded verbatim. The order of the special inquiry officer to take a deposition shall identify the witness and shall specify the title of the officer before whom the deposition is to be taken, shall set forth the immigration district having administrative jurisdiction over the place where the witness is situated but not the time, date, or place for the taking of the deposition, and shall state whether direct and cross-examination shall be by oral examination or written interrogatories or in combination. The Federal Rules of Civil Procedure shall be used as a guide to the extent practicable. In the United

States, examination of the witness should take place before a special inquiry officer; abroad, preferably before a United States consular official. The witness shall be notified on Form I-260 to appear for examination. Copies of such notice shall be furnished to the parties to the proceeding. Both the respondent's copy and the record of hearing shall reflect advice as to his privilege to examine the witness and to be represented by counsel at such time. The officer presiding at the taking of the deposition shall note but not rule upon objections and he shall not comment on the admissibility of evidence or on the credibility and demeaner of the witness.

[22 F.R. 9797, Dec. 6, 1957, as amended at 29 F.R. 13243, Sept. 24, 1964; 32 F.R. 2883, Feb. 15, 1967]

The hearing before the special inquiry officer, including the testimony, exhibits, applications and requests, the special inquiry officer's decision, and all written orders, motions, appeals, briefs, and other papers filed in the proceedings 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 special inquiry officer. In his discretion, the special inquiry officer may exclude from the record any arguments made in connection with motions, applications, requests, or objections, but in such event the person affected may submit a brief. [26 F.R. 12112, Dec. 19, 1961]

242.16 Hearing.

(a) Opening. The special inquiry officer shall advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice authorized to practice in the proceedings and require him to state then and there whether he desires representation; advise the respondent that he will have a reasonable opportunity to examine and object to the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; place the respondent under oath; read the factual allegations and the charges in the order to show cause to the respondent and explain them in nontechnical language, and enter the order to show cause as an exhibit in the record. Deportation hearings shall be open to the public, ex