Code of Federal Regulations: Containing a Codification of Documents of ...

director does not move that the petition be dismissed for lack of prosecution, the court shall determine the petition on its merits. §334.21 Verification of petition for naturalization; administration of oath.

Every petition for naturalization shall, before it is filed, be verified by the petitioner, and by the affidavits of two credible witnesses, citizens of the United States, who shall appear in person either before a designated examiner or before the clerk of the court or his authorized deputy. Any such officer shall administer the required oaths or affirmations to the petitioner and the witnesses. The witnesses shall sign the affidavits. The witnesses shall have and aver knowledge of the petitioner as to each place of his residence in the State where he is residing during the period of at least six months immediately prior to the filing of the petition unless the petitioner is exempted from the usual State residence requirement. If the petitioner has resided at two or more places in the State during the required six-month period and for this reason two witnesses cannot be procured to verify the petition as to all such residence, additional witnesses may be used and their affidavits shall be executed, in duplicate, on Form N-451, one copy of which shall be attached to the original petition and the other to the duplicate petition at the time of filing the petition. The witnesses shall state in their affidavits that they personally know that the petitioner is and has been a resident at such place for such period, the length of the petitioner's physical presence in the United States during such period, and that the petitioner is and has been during all such period of residence a person of good moral character, attached to the principles of the Constitution of the United States, well disposed to the good order and happiness of the United States, and in all respects qualified to become a citizen of the United States. If the petitioner is exempted from the usual State residence requirement, the witnesses shall state in their affidavits the period of time that they have personally known the petitioner to have been resident and physically present in the United States, and that such petitioner is, and, for the period required by the naturalization provisions applicable to the case, has been a person of good moral character, attached to the principles of the Constitution of the United States, well disposed to the good order and happiness of the United States, and in all respects qualified to become a citizen of the United States.

Each prospective declarant shall, befor making and filing his declaration of intention submit an application on Form N-300. A clerk of court or his authorized deputy shall not accept a declaration of intention for filing until he has received from the Service the applicant's approved Form N-300 authorizing the issuance of the declaration and showing that the applicant is residing in the United States pursuant to a lawful admission for permanent residence. The declaration of intention shall be executed under oath or affirmation on Form N-315, in triplicate, before the clerk of any court exercising naturalization jurisdiction or his authorized deputy, regardless of the place of residence of the applicant, and only in the office of said clerk. The applicant may sign the declaration and the photographs affixed thereto in any language or by mark if unable to write and shall pay the clerk of court a fee of $5 at the time the declaration of intention is filed, unless a waiver of fee has been granted under the provisions of §103.7(c) of this chapter. The original declaration of intention shall be retained and filed of record by the clerk of court and the triplicate delivered to the applicant. Declarations of intention shall be numbered consecutively in the order in which they are filed in a series separate from petitions and filed chronologically in separate volumes, indexed, and made a part of the records of the naturalization court.

(Secs. 103, 332, 334, 344, 66 Stat. 173, 252, 254, 264; 8 U.S.C. 1103, 1443, 1445, 1455) [23 F.R. 5820, Aug. 1, 1958, as amended at 37 F.R. 928, Jan. 21, 1972; 37 F.R. 2767, Feb. 5, 1972]

PART 335-PRELIMINARY EXAMINATION ON PETITIONS FOR NATURALIZATION

Sec.

335.11 Preliminary examination pursuant to section 335(b) of the Immigration and Nationality Act.

335.12 Recommendations of the designated examiner and the regional commissioner, notice.

335.13 Notice of recommendation of designated examiner.

AUTHORITY: The provisions of this Part 335 issued under secs. 103, 332, 335, 66 Stat. 173, 252, 255; 8 U.S.C. 1103, 1443, 1446.

§335.11 Preliminary examination pursuant to section 335(b) of the Immigration and Nationality Act.

(a) When held. Preliminary examinations shall be open to the public, and shall, where practicable be held immediately after the petition for naturalization is filed with the clerk of the court unless, in the opinion of the district director, the interests of good administration would be better served by holding such examinations prior to the filing of the petition in the office of the clerk of court, but in no event shall such examinations be held before the petition has been properly executed by the petitioner and his verifying witnesses.

(b) Conduct of examination. Preliminary examinations shall be held before an employee of the Service designated by the district director, after prior approval of the Central Office if the employee is not a General Attorney (Nationality), to conduct such proceedings and to make findings and recommendations thereon to the naturalization court, who shall be known as the "designated examiner". The petitioner and his witnesses and the witnesses produced on behalf of the Government shall be present. The designated examiner shall, prior to the commencement of the examination, make known to the petitioner his official capacity and that of any other officer of the Service who may participate in the proceeding. The designated examiner shall have before him the entire record of the preliminary interrogation, including the petitioner's application to file a petition for naturalization (Form N-400) and any other evidence or data that may be relevant ог material to the inquiry. All testimony taken at the examination shall be under oath or affirmation administered by the designated examiner. The designated examiner may interrogate the petitioner and witnesses produced in behalf of the petitioner or the Government, and present evidence touching upon the petitioner's admissibility to citizenship. He shall regulate the course of the examination, rule upon applications for the issuance of subpenas and issue such subpenas in proper cases, grant or deny continuances, and rule on all objections to the introduction of evidence, which rulings shall be entered on the record. Evidence held by the designated examiner to be inadmissible shall nevertheless be received into the record subject to the ruling

of the court. The petitioner and the Government shall have the right to present such oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. If the petitioner is not represented by an attorney or representative, the designated examiner shall assist the petitioner in the introduction of all evidence available in his behalf. All documentary or written evidence shall be properly identified and introduced into the record as exhibits by number, unless read into the record.

(c) Assignment of examining officer at preliminary examination. The district director may in his discretion assign an employee of the Service to act as examining officer at the preliminary examination. Such employee shall examine and cross-examine witnesses produced in behalf of the Government or the petitioner and present evidence pertinent to the petitioner's admissibility to citizenship. The designated examiner may take such part in the interrogation of the petitioner and witnesses and the introduction of evidence as he may deem necessary.

(d) Stenographic reporting of proceedings; mechanical recording equipment. A stenographer shall be in attendance whenever, in the opinion of the designated examiner, such attendance is desirable, and in every case to which an examining officer is assigned. The stenographer shall record verbatim the entire proceedings, including the oaths administered and rulings on objections, but shall not record arguments in support of objections, or statements made off the record with the consent of the petitioner. The stenographer shall certify that the transcribed minutes constitute a complete and accurate record of the examination. Whenever, in the opinion of the designated examiner the use of mechanical recording equipment in lieu of a stenographer is deemed desirable, the proceedings may be recorded by such equipment.

(e) Issuance of subpenas; attendance and mileage fees. Subpenas requiring the attendance of witnesses or the production of documentary evidence, or both, may be issued by the designated examiner, upon his own violition or upon written application of the petitioner or his attorney or representative, the examining officer, or the Service. Such written application shall specify, as nearly as may be, the relevance, materiality, and scope of the testimony or documentary evidence sought and show affirmatively that the testimony or

documentary evidence cannot otherwise be produced. Subpenas shall be issued on Form I138 and due record shall be made of their service. The subpena may be served by any person over 18 years of age, not a party to the case, designated to make such service by the district director. Mileage and fees for witnesses subpenaed under this section shall be paid by the party at whose instance the subpena is issued at rates allowed and under conditions prescribed by the naturalization court in which the petition is pending. Before issuing a subpena the designated examiner may require a deposit of an amount adequate to cover the fees and mileage involved. If the witness subpenaed neglects or refuses to testify or produce documentary evidence as directed by the subpena, the district director shall request the United States Attorney for the proper district to report such neglect or refusal to any court exercising naturalization jurisdiction and to file a motion in such court for an order directing the witness to appear and testify and to produce the documentary evidence described in the subpena.

(f) Briefs. At the conclusion of the preliminary examination the petitioner or his attorney or representative, and the examining officer if one was assigned, may submit briefs in support of arguments made or issues raised at the examination.

(g) Representation by attorney or representative; absence of representative; advice to petitioner. The petitioner may be represented by an attorney or representative who has filed an appearance in accordance with Part 292 of this chapter. If at any stage of the preliminary examination it appears to the designated examiner that he may recommend denial of the petition, or granting thereof with the facts to be presented to the court, he shall advise the petitioner of his right to be represented by an attorney or representative. A continuance of the examination shall be granted upon the petitioner's motion for the purpose of obtaining an attorney or representative. The petitioner's attorney or a representative shall be permitted to be present at all times during the preliminary examination or at any subsequent examinations and the petitioner shall not in any such examination or subsequent examinations be interrogated in the absence of his attorney or representative, unless the petitioner waives such appearance. The attorney or a representative shall be permitted to offer evidence to meet any evidence presented or adduced by the Government or the designated

examiner. A petitioner who is not represente by an attorney or a representative shall be eng titled to all the benefits and the privileges pro vided for in this section.

(h) Designation of Service employees to con· duct preliminary examinations. All employee of the Service who have been designated t conduct preliminary examinations upon peti tions for naturalization to any naturalization court and to make findings and recommenda tions thereon to such courts under the provi sions of section 333 of the Nationality Act of 1940, as amended, and whose designations are still in force on December 24, 1952, are hereby designated under the provisions of section 335 of the Immigration and Nationality Act to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts. Designations under this paragraph and under paragraph (b) of this section shall remain in force until revoked.

[22 F.R. 9821, Dec. 6, 1957, as amended at 23 F.R. 2673, Apr. 23, 1958; 39 F.R. 40580, Nov. 19, 1974] §335.12 Recommendations of the designated examiner and the regional commissioner; notice.

evidence shall be considered in the preparation of the memorandum. The memorandum shall be submitted before final hearing to the regional commissioner, in those cases or classes of cases designated by him, for review and recommendation. If the regional commissioner does not agree with the recommendation of the designated examiner, he shall prepare an appropriate memorandum, with findings of fact, conclusions of law, and the recommendation of the Service, subject to review and approval by the Commissioner in those cases or classes of cases designated by him, for presentation to the court with the designated examiner's memorandum. In the preparation of memoranda, designated ex

(a) Recommendation that petition be denied. When the designated examiner proposes to recommend denial of the petition, the petitioner or his attorney or representative shall be notified thereof and furnished a copy of the designated examiner's memorandum. The notice shall be given in conjunction with notification of the date, place, and time of holding the final hearing. The notice shall be sent by certified mail, with return receipt requested, after any review made by the regional commissioner.

(b) Recommendation that petition be granted. When the designated examiner proposes to recommend granting of the petition and to present the facts and issues to the court, the petitioner or his attorney or representative shall be notified of the recommendation and furnished a copy of the designated examiner's memorandum prior to the date of the hearing, and after any review made by the regional commissioner.

(c) Disagreement between recommendations of designated examiner and the regional commissioner. In those cases reviewed by the regional commissioner in which his views and recommendations do not agree with those of the designated examiner, the notice required by paragraphs (a) and (b) of this section shall also advise the petitioner of the recommendation of the regional commissioner and that both recommendations will be presented to the court. There shall also be enclosed with such notice a copy of the regional commissioner's memorandum.

(d) Briefs. If the petitioner intends to file a brief or memorandum at the final hearing, he shall furnish a copy thereof to the Service office from which the notice on Form N-425 emanated at least 5 days prior to the date of the final hearing. Failure to do so will result in a motion for a continuance if deemed essential

for the proper presentation of the Govern

ment's case.

[22 F.R. 9822, Dec. 6, 1957, as amended at 35 F.R. 17530, Nov. 14, 1970]

335a.11 Transfer of petition; procedure.

335a.12 Withdrawal of or failure to prosecute petition; procedure.

AUTHORITY: The provisions of this Part 335a issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103.

SOURCE: The provisions of this Part 335a appear at 22 F.R. 9822, Dec. 6, 1957.

§335a.11 Transfer of petition; procedure.

See §334.17 of this chapter.

§335a.12 Withdrawal of or failure to prosecute petition; procedure. See $334.18 of this chapter.

PART 335b-PROOF OF QUALIFICATIONS FOR NATURALIZATION: WITNESSES; DEPOSITIONS

Sec.

335b.1 Proof of residence and other qualifications. 335b.2 Substitution of witnesses. 3356.3 Depositions.

AUTHORITY: The provisions of this Part 335b issued under secs. 103, 332, 335, 66 Stat. 173, 252, 255; 8 U.S.C. 1103, 1443, 1446.

SOURCE: The provisions of this Part 335b appear at 23 F.R. 5820, Aug. 1, 1958.

§335b.1 Proof of residence and other qualifications.

If oral testimony is taken at the preliminary examination or at the final hearing from witnesses other than the verifying witnesses to cover the petitioner's qualifications during the statutory period, affidavits on Form N-451 shall be executed by them, in duplicate, before the designated examiner or the clerk of the court, one copy of which shall be attached to the original petition and the other to the duplicate petition.

§335b.2 Substitution of witnesses.

examiner. A petitioner who is not represented by an attorney or a representative shall be entitled to all the benefits and the privileges provided for in this section.

(h) Designation of Service employees to conduct preliminary examinations. All employees of the Service who have been designated to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts under the provisions of section 333 of the Nationality Act of 1940, as amended, and whose designations are still in force on December 24, 1952, are hereby designated under the provisions of section 335 of the Immigration and Nationality Act to conduct preliminary examinations upon petitions for naturalization to any naturalization court and to make findings and recommendations thereon to such courts. Designations under this paragraph and under paragraph (b) of this section shall remain in force until revoked.

[22 F.R. 9821, Dec. 6, 1957, as amended at 23 F.R. 2673, Apr. 23, 1958; 39 F.R. 40580, Nov. 19, 1974] §335.12 Recommendations of the designated examiner and the regional commissioner; notice.

As soon as practicable after conclusion of the preliminary examination, the designated examiner shall prepare an appropriate recommendation to the court. If the recommendation is for denial, or for granting with the facts to be presented to the court, the designated examiner shall prepare a memorandum summarizing the evidence, and setting forth findings of fact and conclusions of law, and his recommendation. No evidence dehors the record or evidence not admissible in judicial proceedings under recognized rules of evidence shall be considered in the preparation of the memorandum. The memorandum shall be submitted before final hearing to the regional commissioner, in those classes of cases designated by him, for review and recommendation. If the regional commissioner does not agree with the recommendation of the designated examiner, he shall prepare an appropriate memorandum, with findings of fact, conclusions of law, and the recommendation of the Service, subject to review and approval by the Commissioner in those cases or classes of cases designated by him, for presentation to the court with the designated examiner's memorandum. In the preparation of memoranda, designated ex

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