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 officer of the Service shall be accompanied by the appropriate fee specified by, and remitted in accordance with, the provisions of §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 of his affidavit 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 officer of the Service from whose decision the appeal is taken or with respect to whose decision the motion is addressed, such officer 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 officer who made the decision. Such officer 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 a 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 administrative jurisdiction over the case or by the General Counsel. If the record in the case has not been forwarded to the Board on appeal in accordance with Section 3.5 the decision made in the case shall be final to the same extent as though no appeal had been taken. If the record has been forwarded on appeal, the withdrawal of the appeal shall be forwarded to the Board and, if no decision in the case has been made on the appeal, the record shall be returned, and the initial decision shall be final to the same extent as though no appeal had been taken. If a decision on the appeal shall have been made by the Board in the further action shall be taken in accordance therewith. Departure from the United States of a person who is the subject to

case,

deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

[29 F.R. 2692, Feb. 26, 1964]

§3.5 Forwarding of record on appeal.

If an appeal is taken from a decision, as provided in this chapter, the entire record of the proceeding shall be forwarded to the Board by the officer of the Service having administrative jurisdiction over the case upon timely receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs.

[29 F.R. 2692, Feb. 26, 1964]

§3.6 Stay of execution of decision.

(a) Except as provided in §242.2 of this chapter and paragraph (b) of this section, the decision in any proceeding under this chapter from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such decision be executed while an appeal is pending or while a case is before the Board by way of certification.

(b) The provisions of paragraph (a) of this section shall not apply to an order of a special inquiry officer under §242.22 of this chapter denying a motion to reopen or reconsider or to stay deportation, except when a stay pending appeal has been granted by the special inquiry officer. The Board may, in its discretion, stay deportation while an appeal is pending from any such order if no stay has been granted by the special inquiry officer.

(c) Saving clause. Notwithstanding the provisions of paragraph (b) of this section, any stay of execution of decision existing under paragraph (a) of this section when paragraph (b) of this section becomes effective shall continue until the Board has disposed of the appeal.

[36 F.R. 316, Jan. 9, 1971]

§3.7 Notice of certification.

Whenever in accordance with the provisions of §3.1(c) a case is required to be certified to the Board, the alien or other party affected shall be given notice of certification. A case shall be certified only after an initial decision has been made and before an appeal has been taken. If it is known at the time the initial

decision is made that the case will be certified, the notice of certification shall be included in such decision and no further notice of certification shall be required. If it is not known until after the initial decision is made that the case will be certified, the officer of the Service having administrative jurisdiction over the case shall cause a Notice of Certification (Form I-290C) to be served upon the party affected. In either case the notice shall inform the party affected that the case is required to be certified to the Board and that he has the right to make representation before the Board, including the making of oral argument and the submission of a brief. If the party affected desires to submit a brief, it shall be submitted to the officer of the Service having administrative jurisdiction over the case for transmittal to the Board within ten days from the date of receipt of the notice of certification, unless for good cause shown such officer or the Board extends the time within which the brief may be submitted. The case shall be certified and forwarded to the Board by the officer of the Service having administrative jurisdiction over the case upon receipt of the brief, or upon the expiration of the time within which the brief may be submitted, or upon receipt of a written waiver of the right to submit a brief.

[23 F.R. 9118, Nov. 26, 1958]

§3.8 Motion to reopen or motion to reconsider.

(a) Form. Motions to reopen and motions to reconsider shall be submitted in triplicate. A request for oral argument, if desired, shall be incorporated in the motion. The Board in its discretion may grant or deny oral argument. Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material. Motions to reconsider shall state the reasons upon which the motion is based and shall be supported by such precedent decisions as are pertinent. In any case in which a deportation order is in effect, there shall be included in the motion to reopen or reconsider such order a statement by or on behalf of the moving party declaring whether the subject of the deportation order is also the subject of any pending criminal proceeding under section 242(e) of the Act, and, if so, the current status of that proceeding. If the motion to reopen or reconsider is for the purpose of seeking discretionary relief, there shall be inIcluded 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 prosecution 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. When

ever 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 affirm, 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]

Sec.

PART 100-STATEMENT OF ORGANIZATION

100.1 Introduction.

100.2 Organization and delegations.

100.3 Places where, and methods whereby, information may be secured or submittals or requests made.

100.4 Field Service. 100.5 Regulations.

100.6 Rule making.

Authority: The provisions of this Part 100 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103.

Source: The provisions of this Part 100 appear at 32 F.R. 9616, July 4, 1967, unless otherwise noted. §100.1 Introduction.

or

The following sections describe the ganization of the Immigration and Naturalization Service, including statements of delegations of final authority, indicate the established places at which, and methods whereby, the public may secure information, direct attention to the regulations relating to the general course and method by which its functions are channeled and determined. Part 103 of this chapter sets forth the procedures governing the availability of Service opinions, orders, and records.

§100.2 Organization and delegations.

(a) The Attorney General has delegated to 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 Deputy Commissioner is authorized to exercise all power and authority of the Commissioner unless any such power or authority is required to be exercised by the Commissioner personally or has been exclusively delegated to another immigration official or class of immigration officer. Subject to the general supervision of the Commissioner and the direction of the Deputy Commissioner, the Associate Commissioners have responsibility for Service program development, coordination, evaluation and counseling relating to Service policy and recommendations within their program areas of activity and general direction

of the Assistant Commissioners with technical responsibility for each of the program areas as follows: The Associate Commissioner, Examinations, the Adjudications, Inspections, and Citizenship and Naturalization programs and general direction of the Assistant Commissioners for Adjudications, Inspections, and Naturalization; the Associate Commissioner, Enforcement, the Border Patrol, Investigations, and Detention and Deportation programs and general direction of the Assistant Commissioners for Border Patrol, Investigations, and Detention and Deportation; the Associate Commissioner, Management, the Administrative, Records and Information, and Personnel programs and general direction of the Assistant Commissioners for Administration, Information Services, and Personnel. The Assistant Commissioners have responsibility for planning, coordinating, evaluating, and technical counseling relating to their program areas as follows: The Assistant Commissioner for Adjudications, The Adjudicative programs; the Assistant Commissioner for Inspections, the Inspection programs; the Assistant Commissioner for Naturalization, the Citizenship and Naturalization programs; the Assistant Commissioner for Border Patrol, the Border Patrol programs; the Assistant Commissioner for Investigations, the Investigations programs; the Assistant Commissioner for Detention and Deportation, the Detention and Deportation programs; the Assistant Commissioner for Administration, the Administrative programs; the Assistant Commissioner for Information Services, the Records Administration and Information, Statistics, and Automated Data Processing programs; the Assistant Commissioner for Personnel, the Personnel programs.

(b) Subject to the general supervision of the Commissioner and direction of the Deputy Commissioner, the Associate Deputy Commissioner for Planning and Evaluation serves as principal staff adviser to each on all program issues including planning, research development, budgeting, automated data processing, new programs and evaluation of Service program activities.

and

(c) The General Counsel advises, on legal matters, the Commissioner and his staff, the Attorney General, Solicitor General and other officers of the Department of Justice, also of

ficers of other Departments of the Government. He prepares legislative reports, as necessary assists in litigation, including preparation of briefs. He directs the activities of the Regional Counsels and the Appellate Trial Attorneys and, acting through a Chief Trial Attorney, he has responsibility for planning, coordinating, evaluating and, counseling relating to the Trial Attorney program.

(d) The Chief Special Inquiry Officer has responsibility for exclusion and expulsion hearing programs.

(e) The Executive Assistant has responsibility for coordinating the activities of the Office of the Commissioner and serves as principal staff assistant to the Commissioner.

(f) The Executive Assistant Deputy Commissioner has responsibility for coordinating the activities of the Office of the Deputy Commissioner and serves as principal staff assistant to the Deputy Commissioner.

(g) The Public Information Officer has responsibility for planning, coordinating, and evaluating the Public Information program activities of the Service and serves as principal adviser to the Commissioner and other Service officers on all matters relating to public information.

(h) Subject to the general supervision of the Commissioner and direction of the Deputy Commissioner the following have responsibility for programs as stated: The Director of Field Inspections, planning, evaluating, conducting and reporting thereon, the Central Office programs for inspection of Field Office Operational and Administrative program activities and counseling on all matters relating thereto; the Director of Intelligence and the Director Internal Investigations, planning, coordinating, evaluating and counseling relating to the Intelligence and Internal Investigations program, respectively.

(i) Subject to the general supervision of the Commissioner and the direction of the Deputy Commissioner, Regional Commissioners are authorized to direct the administration of the Service and enforce the Act and all other laws relating to immigration and naturalization within their geographic areas of activity. The Deputy Regional Commissioners authorized to exercise all power and authority of the Regional Commissioners unless any such power or authority is required to be exercised by the Regional Commissioner personally or has been exclusively delegated to another immigration official or class of immigration officer.

are

(j) Subject to the general supervision of the Regional Commissioner and the direction of the Deputy Regional Commissioner, district directors and chief patrol agents have been assigned authority to direct the administration of the Service and enforce the Act and all other laws relating to immigration and naturalization within their operational areas of activity, unless any such power and authority is required to be exercised by higher authority or has been exclusively delegated to another immigration official or class of immigration officer. [40 F.R. 30467, July 21, 1975, as amended at 41 F.R. 27311, July 2, 1976]

$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 either orally 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 provisions of this chapter dealing with the particular type of application may be consulted for regulatory provisions.

§100.4 Field Service.

The territory within which officials of the Immigration and Naturalization Service are located is divided into regions, districts, suboffices, and Border Patrol sectors as follows:

(a) Regional offices. The Eastern Regional Office, located in Burlington, Vermont, has jurisdiction over districts 1, 2, 3, 4, 5, 7, 21, 22, 23, 25, and 27 and Border Patrol sectors 1, 2, 3, and 4. The Southern Regional Office, located in Dallas, Texas, has jurisdiction over districts 6, 14, 15, 26, 28, and 38 and Border Patrol sectors 15, 16, 17, 18, 19, 20, and 21. The Northern Regional Office, located in St. Paul, Minnesota, has jurisdiction over districts 8, 9, 10, 11, 12, 19, 24, 29, 30, 31, and 32