(4) An alien stowaway is not an applicant for admission and may not be admitted to the United States. A stowaway shall be removed from the United States under section 235(a)(2) of the Act. The provisions of section 240 of the Act are not applicable to stowaways, nor is the stowaway entitled to further hearing or review of the removal, except that an alien stowaway who indicates an intention to apply for asylum, or expresses a fear of persecution, a fear of torture, or a fear of return to the country of proposed removal shall be referred to an asylum officer for a determination of credible fear of persecution or torture in accordance with section 235(b)(1)(B) of the Act and § 208.30 of this chapter. An alien stowaway who is determined to have a credible fear of persecution or torture shall have his or her asylum application adjudicated in accordance with § 208.2(b)(2) of this chapter.

(e) U.S. citizens, lawful permanent residents of the United States, and other aliens, entering the United States along the northern border, other than at a Portof-Entry. A citizen or lawful permanent resident of the United States, a Canadian national or landed immigrant of Canada having a common nationality with nationals of Canada, or a landed immigrant of Canada who is a national of a country listed in §217.2(a), may, if in possession of a valid, unexpired, Canadian Border Boat Landing Permit (Form I-68) or evidence of enrollment in any other Service Alternaitve Inspections program (e.g., the Immigration and Naturalization Service Passenger Accelerated Service System (INSPASS) or the Port Passenger Accelerated Service System

(PORTPASS)), enter the United States by means of a pleasure craft along the northern border of the United States from time-to-time without further inspection. No persons other than those described in this paragraph may participate in this program. Landed immigrants of Canada who do not share a common nationality with nationals of Canada, but who are nationals of a designated country listed in §217.2(a) of this chapter (Visa Waiver Pilot Program) must be in possession of a valid, unexpired passport issued by his or her country of nationality, and an unex

pired multiple entry Form I-94 or I94W, Nonimmigrant Visa Waiver Arrival/Departure Form, and a valid unexpired United States visa (if the alien is not in possession of a valid unexpired Form I-94W). When an entry to the United States is made by a person who is a Canadian citizen or a landed immigrant of Canada, entry may be made under this program only for a purpose as described in section 101(a)(15)(B)(ii) of the Act. Persons seeking to enter the United States for any other purpose must do so at a staffed Port-ofEntry. Persons aboard a vessel which has crossed the international boundary between the United States and Canada and who do not intend to land in the United States, other than at a staffed Port-of-Entry, are not required to be in possession of Form I-68 or evidence of enrollment in an Alternative Inspections program merely because they have crossed the international boundary. However, the Service retains the right to conduct inspections or examinations of all persons applying for admission or readmission to or seeking transit through the United States in accordance with the Act.

(1) Application. An eligible applicant may apply for a Canadian Border Boat Landing Permit by completing the Form I-68 in triplicate. Application forms will be made readily available through the Internet, from a Service office, or by mail. A family may apply on a single application. For the purposes of this paragraph, a family is defined as a husband, wife, unmarried children under the age of 21, and the parents of either husband or wife, who reside at the same address. In order for the I-68 application to be considered complete, it must be accompanied by the following:

(i) For each person included on the application, evidence of citizenship. and, if not a citizen of the Untied States or Canada, evidence of legal permanent resident status in either the United States or Canada. Evidence of residency must be submitted by all applicants. It is not required that all persons on the application be of the same nationality; however, they must all be individually eligible to participate in this program.

(ii) If multiple members of a family, as defined in paragraph (e)(1) of this section, are included on a single application, evidence of the familial relationship.

(iii) A fee as prescribed in § 103.7(b)(1) of this chapter.

(iv) A copy of any previously approved Form I-68.

(v) A landed immigrant of Canada who does not have a common nationality with nationals of Canada, but who is a national of a designated country listed in §217.2(a) of this chapter (Visa Waiver Pilot Program) must also present his or her passport, a valid unexpired multiple entry Form I-94 or I94W and valid, unexpired nonimmigrant visa if he or she is not in possession of a valid, unexpired multiple entry Form I-94W. Such a landed immigrant of Canada may apply for admission simultaneously with the I-68 application and thereby obtain a Form I-94 or I-94W.

(2) Submission of Form I-68. Except as indicated in this paragraph, Form I-68 shall be properly completed and submitted in person, along with the documentary evidence and the required fee as specified in §103.7(b)(1) of this chapter, to a United States immigration officer at a Canadian border Port-ofEntry located within the district having jurisdiction over the applicant's residence or intended place of landing. Persons previously granted Form I-68 approval may apply by mail to the issuing Service office for renewal if a copy of the previous Form I-68 is included in the application. At the discretion of the district director concerned, any applicant for renewal of Form I-68 may be required to appear for an interview in person if the applicant does not appear to be clearly eligible for renewal.

(3) Denial of Form I-68. If the applicant has committed a violation of any immigration or customs regulation or, in the case of an alien, is inadmissible to the United States, approval of the Form I-68 shall be denied. However, if, in the exercise of discretion, the district director waives under section 212(d)(3) of the Act all applicable grounds of inadmissibility, the I-68 application may be approved for such non-citizens. If the Form I-68 applica

tion is denied, the applicant shall be given written notice of and the reasons for the denial by letter from the district director. There is no appeal from the denial of the Form I-68 application, but the denial is without prejudice to a subsequent application for this program or any other Service benefit, except that the applicant may not submit a subsequent Form I-68 application for 90 days after the date of the last denial.

(4) Validity. Form I-68 shall be valid for 1 year from the date of issuance, or until revoked or violated by the Service.

(5) Conditions for participation in the I68 program. Upon being inspected and positively identified by an immigration officer and found admissible and eligible for participation in the I-68 program, a participant must agree to abide by the following conditions:

(i) Form I-68 may be used only when entering the United States by means of a vessel exclusively used for pleasure. including chartered vessels when such vessel has been chartered by an approved Form I-68 holder. When used by a person who is a not a citizen or a lawful permanent resident of the United States, admission shall be for a period not to exceed 72 hours to visit within 25 miles of the shore line along the northern border of the United States. including the shore line of Lake Michigan and Puget Sound.

program

or

(ii) Participants must be in possession of any authorization documents issued for participation in this program or another Service Alternative Inspections (INSPASS PORTPASS). Participants over the age of 15 years and who are not in possession of an INSPASS or PORTPASS enrollment card must also be in possession of a photographic identification document issued by a governmental agency. Participants who are landed immigrants of Canada and do not have a common nationality with nationals of Canada, but who are nationals of a designated country listed in §217.2(a) of this chapter must also be in possession of proper documentation as described in paragraph (e) of this section.

(iii) Participants may not import merchandise or transport controlled or restricted items while entering the United States under this program. The

entry of any merchandise or goods must be in accordance with the laws and regulations of all Federal Inspection Services.

(iv) Participants must agree to random checks or inspections that may be conducted by the Service, at any time and at any location, to ensure compli

ance.

(v) Participants must abide by all Federal, state, and local laws regarding the importation of alcohol or agricultural products or the importation or possession of controlled substances as defined in section 101 of the Controlled Substance Act (21 U.S.C. 802).

(vi) Participants acknowledge that all devices, decals, cards, or other Federal Government supplied identification or technology used to identify or inspect persons or vessels seeking entry via this program remain the property of the United States Government at all times, and must be surrendered upon request by a Border Patrol Agent or any other officer of a Federal Inspection Service.

(vii) The captain, charterer, master, or owner (if aboard) of each vessel bringing persons into the United States is responsible for determining that all persons aboard the vessel are in possession of a valid, unexpired Form I-68 or other evidence of participation in a Service Alternative Inspections program (INSPASS or PORTPASS) prior to entry into the territorial waters of the United States. If any person on board is not in possession of such evidence, the captain, charterer, master, or owner must transport such person to a staffed United States Port-of-Entry for an in-person immigration inspection.

(6) Revocation. The district director, the chief patrol agent, or their designated representatives may revoke the designation of any participant who violates any condition of this program, as contained in paragraph (e)(5) of this section, or who has violated any immigration law or regulation, or a law or regulation of the United States Customs Service or other Federal Inspection Service, has abandoned his or her residence in the United States or Canada, is inadmissible to the United States, or who is otherwise determined by an immigration officer to be ineli

gible for continued participation in this program. Such persons may be subject to other applicable sanctions, such as criminal and/or administrative prosecution or deportation, as well as possible seizure of goods and/or vessels. If permission to participate is revoked, a written request to the district director for restoration of permission to participate may be made. The district director will notify the person of his or her decision and the reasons therefore in writing.

(7) Compliance checking. Participation in this program does not relieve the holder from responsibility to comply with all other aspects of United States Immigration, Customs, or other Federal inspection service laws or regulations. To prevent abuse, the United States Immigration and Naturalization Service retains the right to conduct inspections or examinations of all persons applying for admission or readmission to or seeking transit through the United States in accordance with the Immigration and Nationality Act.

(f) Form I-94, Arrival Departure Record. (1) Unless otherwise exempted, each arriving nonimmigrant who is admitted to the United States shall be issued, upon payment of a fee prescribed in § 103.7(b)(1) of this chapter for land border admissions, a Form I-94 as evidence of the terms of admission. A Form I-94 issued at a land border port-of-entry shall be considered issued for multiple entries unless specifically annotated for a limited number of entries. A Form I-94 issued at other than a land border port-of-entry, unless issued for multiple entries, must be surrendered upon departure from the United States in accordance with the instructions on the form. Form I-94 is not required by:

(i) Any nonimmigrant alien described in §212.1(a) of this chapter and 22 CFR 41.33 who is admitted as a visitor for business or pleasure or admitted to proceed in direct transit through the United States;

(ii) Any nonimmigrant alien residing in the British Virgin Islands who was admitted only to the U.S. Virgin Islands as a visitor for business or pleasure under § 212.1(b) of this chapter;

(iii) Except as provided in paragraph (f)(1)(v) of this section, any Mexican national who is exempt from a visa and

passport pursuant to §212.1(c)(1) of this chapter, or who is in possession of a passport and valid visa who is admitted as a nonimmigrant visitor for a period not to exceed 72 hours to visit within 25 miles of the border;

(iv) Bearers of Mexican diplomatic or official passports described in §212.1(c) of this chapter; or

(v) Any Mexican national who is exempt from a visa and passport pursuant to §212.1(c)(1) of this chapter, or is in possession of a passport and valid visa who is admitted as a nonimmigrant visitor at the Mexican border POES in the State of Arizona at Sasabe, Nogales, Mariposa, Naco, or Douglas for a period not to exceed 72 hours to visit within the State of Arizona and within 75 miles of the border.

(2) Paroled aliens. Any alien paroled into the United States under section 212(d)(5) of the Act, including any alien crewmember, shall be issued a completely executed Form I-94, endorsed with the parole stamp.

[62 FR 10353, Mar. 6, 1997, as amended at 62 FR 47751. Sept. 11, 1997; 64 FR 8494, Feb. 19, 1999; 64 FR 36561, July 7, 1999; 64 FR 68617, Dec. 8, 1999; 67 FR 71449, Dec. 2, 2002]

§ 235.2 Parole for deferred inspection.

(a) A district director may, in his or her discretion, defer the inspection of any vessel or aircraft, or of any alien, to another Service office or port-ofentry. Any alien coming to a United States port from a foreign port, from an outlying possession of the United States, from Guam, Puerto Rico, or the Virgin Islands of the United States, or from another port of the United States at which examination under this part was deferred, shall be regarded as an applicant for admission at that onward port.

(b) An examining immigration officer may defer further examination and refer the alien's case to the district director having jurisdiction over the place where the alien is seeking admission, or over the place of the alien's residence or destination in the United States, if the examining immigration officer has reason to believe that the alien can overcome a finding of inadmissibility by:

(1) Posting a bond under section 213 of the Act;

(2) Seeking and obtaining a waiver under section 211 or 212(d)(3) or (4) of the Act; or

(3) Presenting additional evidence of admissibility not available at the time and place of the initial examination.

(c) Such deferral shall be accomplished pursuant to the provisions of section 212(d)(5) of the Act for the period of time necessary to complete the deferred inspection.

(d) Refusal of a district director to authorize admission under section 213 of the Act, or to grant an application for the benefits of section 211 or section 212(d) (3) or (4) of the Act, shall be without prejudice to the renewal of such application or the authorizing of such admission by the immigration judge without additional fee.

(e) Whenever an alien on arrival is found or believed to be suffering from a disability that renders it impractical to proceed with the examination under the Act, the examination of such alien. members of his or her family concerning whose admissibility it is necessary to have such alien testify, and any accompanying aliens whose protection or guardianship will be required should such alien be found inadmissible shall be deferred for such time and under such conditions as the district director in whose district the port is located imposes.

[62 FR 10355, Mar. 6, 1997]

§ 235.3 Inadmissible aliens and expedited removal.

(a) Detention prior to inspection. All persons arriving at a port-of-entry in the United States by vessel or aircraft shall be detained aboard the vessel or at the airport of arrival by the owner, agent, master, commanding officer. person in charge, purser, or consignee of such vessel or aircraft until admitted or otherwise permitted to land by an officer of the Service. Notice or order to detain shall not be required. The owner, agent, master, commanding officer, person in charge, purser, or consignee of such vessel or aircraft shall deliver every alien requiring examination to an immigration officer for inspection or to a medical officer for examination. The Service will not be liable for any expenses related to such detention or presentation or for

any expenses of a passenger who has not been presented for inspection and for whom a determination has not been made concerning admissibility by a Service officer.

(b) Expedited removal-(1) Applicability. The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) or (7) of the Act:

(i) Arriving aliens, as defined in §1.1(q) of this chapter, except for citizens of Cuba arriving at a United States port-of-entry by aircraft;

(ii) As specifically designated by the Commissioner, aliens who arrive in, attempt to enter, or have entered the United States without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, and who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility. The Commissioner shall have the sole discretion to apply the provisions of section 235(b)(1) of the Act, at any time, to any class of aliens described in this section. The Commissioner's designation shall become effective upon publication of a notice in the FEDERAL REGISTER. However, if the Commissioner determines, in the exercise of discretion, that the delay caused by publication would adversely affect the interests of the United States or the effective enforcement of the immigration laws, the Commissioner's designation shall become effective immediately upon issuance, and shall be published in the FEDERAL REGISTER as soon as practicable thereafter. When these provisions are in effect for aliens who enter without inspection, the burden of proof rests with the alien to affirmatively show that he or she has the required continuous physical presence in the United States. Any absence from the United States shall serve to break the period of continuous physical presence. An alien who was not inspected and admitted or paroled into the United States but who establishes that he or she has been continuously physically present in the United States for

the 2-year period immediately prior to the date of determination of inadmissibility shall be detained in accordance with section 235(b)(2) of the Act for a proceeding under section 240 of the Act.

(2) Determination of inadmissibility—(i) Record of proceeding. An alien who is arriving in the United States, or other alien as designated pursuant to paragraph (b)(1)(ii) of this section, who is determined to be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act (except an alien for whom documentary requirements are waived under § 211.1(b)(3) or §212.1 of this chapter), shall be ordered removed from the United States in accordance with section 235(b)(1) of the Act. In every case in which the expedited removal provisions will be applied and before removing an alien from the United States pursuant to this section, the examining immigration officer shall create a record of the facts of the case and statements made by the alien. This shall be accomplished by means of a sworn statement using Form I-867AB, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act. The examining immigration officer shall read (or have read) to the alien all information contained on Form I-867A. Following questioning and recording of the alien's statement regarding identity, alienage, and inadmissibility, the examining immigration officer shall record the alien's response to the questions contained on Form I-867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction. The examining immigration officer shall advise the alien of the charges against him or her on Form I-860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement. After obtaining supervisory concurrence in accordance with paragraph (b)(7) of this section, the examining immigration official shall serve the alien with Form I-860 and the alien shall sign the reverse of the form acknowledging receipt. Interpretative assistance shall be used if necessary to communicate with the alien.