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PART 1-DEFINITIONS

case, either in person or through the preparation or filing of any brief or

other document, paper, application, or AUTHORITY: 8 U.S.C. 1101; 8 CFR part 2.

petition on behalf of another person or

client before or with the Service, or $ 1.1 Definitions.

any officer of the Service, or the Board. As used in this chapter:

(j) The term representative refers to a (a) The terms defined in section 101 of

person who is entitled to represent oththe Immigration and Nationality Act ers as provided in $8 292.1(a) (2), (3), (4), (66 Stat. 163) shall have the meanings (5), (6), and 292.1(b) of this chapter. ascribed to them in that section and as (k) The term preparation, constisupplemented, explained, and further tuting practice, means the study of the defined in this chapter.

facts of a case and the applicable laws, (b) The term Act means the Immigra- coupled with the giving of advice and tion and Nationality Act, as amended. auxiliary activities, including the inci

(c) The term Service means the Immi- dental preparation of papers, but does gration and Naturalization Service, not include the lawful functions of a

(d) The term Commissioner means the notary public or service consisting Commissioner of Immigration and Nat- solely of assistance in the completion uralization.

of blank spaces on printed Service (e) The term Board means the Board forms by one whose remuneration, if of Immigration Appeals.

any, is nominal and who does not hold (1) The term attorney means any per- himself out as qualified in legal matson who is a member in good standing ters or in immigration and naturalizaof the bar of the highest court of any tion procedure. State, possession, territory, Common- (1) The term imm ation judge means wealth, or the District of Columbia, an attorney whom the Attorney Genand is not under any order of any court eral appoints as administrative suspending, enjoining, restraining, dis- judge within the Executive Office for barring, or otherwise restricting him in Immigration Review, qualified to conthe practice of law.

duct specified classes of proceedings, (8) Unless the context otherwise re- including a hearing under section 240 of quires, the term case means any pro- the Act. An immigration judge shall be ceeding arising under any immigration subject to such supervision and shall or naturalization law, Executive order, perform such duties as the Attorney or Presidential proclamation, or prepa- General shall prescribe, but shall not ration for or incident to such pro- be employed by the Immigrati and ceeding, including preliminary steps by Naturalization Service. any private person or corporation pre- (m) The term representation before liminary to the filing of the applica- the Board and the Service includes tion or petition by which any pro- practice and preparation as defined in ceeding under the jurisdiction of the paragraphs (i) and (k) of this section. Service or the Board is initiated.

(n) The term Executive Office means (h) The term day when computing the Executive Office for Immigration Reperiod of time for taking any action view. provided in this chapter including the (0) The term director means either taking of an appeal, shall include Sat- district director or regional service urdays, Sundays, and legal holidays, center director, unless otherwise speciexcept that when the last day of the fied. period so computed falls on a Saturday, (p) The term lawfully admitted for perSunday or a legal holiday, the period manent residence means the status of shall run until the end of the next day having been lawfully accorded the which is not a Saturday, Sunday, nor a privilege of residing permanently in legal holiday.

the United States as an immigrant in (i) The term practice means the act or accordance with the immigration laws, acts of any person appearing in any such status not having changed. Such

PART 2-AUTHORITY OF THE

COMMISSIONER

AUTHORITY: 28 U.S.C. 509, 510; 5 U.S.C. 301; 8 U.S.C. 1103.

82.1 Authority of the Commissioner.

Without divesting the Attorney General of any of his powers, privileges, or duties under the immigration and naturalization laws, and except as to the Executive Office, the Board, the Office of the Chief Special Inquiry Officer, and Special Inquiry Officers, there is delegated to the Commissioner the authority of the Attorney General to direct the administration of the Service and to enforce the Act and all other laws relating to the immigration and naturalization of aliens. The Commissioner may issue regulations as deemed necessary or appropriate for the exercise of any authority delegated to him by the Attorney General, and may redelegate any such authority to any other officer or employee of the Service.

(48 FR 8039, Feb. 25, 1983)

status terminates upon entry of a final administrative order of exclusion or deportation.

(9) The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.

(r) The term respondent means a person named in a Notice to Appear issued in accordance with section 239(a) of the Act, or in an Order to Show Cause issued in accordance with $242.1 of this chapter as it existed prior to April 1, 1997.

(s) The term Service counsel means any immigration officer assigned to represent the Service in any proceeding before an immigration judge or the Board of Immigration Appeals.

(t) The term aggravated felony means a crime (or a conspiracy or attempt to commit a crime) described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date. (23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965; 34 FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May 29, 1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53 FR 30016, Aug. 10, 1988; 61 FR 18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 63 FR 19383, Apr. 20, 1998]

PART 3-EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

Sec. 3.0 Executive Office for Immigration Re

view.

Subpart A-Board of Immigration Appeals 3.1 General authorities. 3.2 Reopening or reconsideration before the

Board of Immigration Appeals. 3.3 Notice of appeal. 3.4 Withdrawal of appeal. 3.5 Forwarding of record on appeal. 3.6 Stay of execution of decision. 3.7 Notice of certification. 3.8 Fees.

Subpart B-Immigration Court 3.9 Chief Immigration Judge. 3.10 Immigration Judges. 3.11 Administrative control Immigration

Courts.

Subpart C-Immigration Court-Rules of

Procedure

3.12 Scope of rules. 3.13 Definitions. 3.14 Jurisdiction and commencement of pro

ceedings

3.15 Contents of the order to show cause and

notice to appear and notification of

change of address. 3.16 Representation. 3.17 Appearances. 3.18 Scheduling of cases. 3.19 Custody/bond. 3.20 Change of venue. 3.21 Pre-hearing conferences and statement. 3.22 Interpreters. 3.23 Reopening or reconsideration before

the Immigration Court. 3.24 Fees pertaining to matters within the

jurisdiction of the Immigration Judge. 3.25 Form of the proceeding. 3.26 In absentia hearings. 3.27 Public access to hearings. 3.28 Recording equipment. 3.29 Continuances. 3.30 Additional charges in deportation or re

moval hearings. 3.31 Filing documents and applications. 3.32 Service and size of documents. 3.33 Translation of documents. 3.34 Testimony. 3.35 Depositions and subpoenas. 3.36 Record of proceeding. 3.37 Decisions. 3.38 Appeals. 3.39 Finality of decision. 3.40 Local operating procedures. 3.41 Evidence of criminal conviction. 3.42 Review of credible fear determination. 3.43 Motion to reopen for suspension of de

portation and cancellation of removal pursuant to section 203(c) of the Nicaraguan Adjustment and Central American Relief Act (NACARA).

Appeals and the Office of the Chief Immigration Judge in the execution of their duties in accordance with this part 3. The Director may redelegate the authority delegated to him by the Attorney General to the Deputy Director, the Chairman of the Board of Immigration Appeals, or the Chief Immigration Judge.

(b) Citizenship Requirement for Employment. (1) An application to work at the Executive Office for Immigration Review (EOIR or Agency), either as an employee or as a volunteer, must include a signed affirmation from the applicant that he or she is a citizen of the United States of America. Upon the Agency's request, the applicant must document United States citizenship.

(2) The Director of EOIR may, by explicit written determination and to the extent permitted by law, authorize the appointment of an alien to an Agency position when necessary to accomplish the work of EOIR. (48 FR 8039, Feb. 25, 1983, as amended at 60 FR 29468, June 5, 1995; 63 FR 51519, Sept. 28, 1998]

Subpart A-Board of Immigration

Appeals

Subpart D [Reserved)

Subpart EUst of Free Legal Services

Providers

3.61 List. 3.62 Qualifications. 3.63 Applications. 3.64 Approval and denial of applications. 3.65 Removal of an organization or attorney

from list. AUTHORITY: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002.

EDITORIAL NOTE: Nomenclature changes to part 3 appear at 52 FR 2941, Jan. 29, 1987.

83.1 General authorities.

(a)(1) Organization. There shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Director, Executive Office for Immigration Review. The Board shall consist of a Chairman, a Vice Chairman, and thirteen other members. The Board Members shall exercise their independent judgment and discretion in the cases coming before the Board. A vacancy, or the absence or unavailability of a Board Member, shall not impair the right of the remaining members to exercise all the powers of the Board. The Director may in his discretion designate Immigration Judges, retired Board Members, retired Immigration Judges, and Administrative Law Judges employed within EOIR to act as temporary, additional Board Members for terms not to exceed six months. The Chairman may divide the Board into three-member panels and designate a Presiding Member of each panel. The Chairman may from time to time make changes in the

83.0 Executive Office for Immigration

Review. (a) Organization. The Executive Office for Immigration Review shall be headed by a Director who shall be assisted by a Deputy Director. The Director shall be responsible for the general supervision of the Board of Immigration

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composition of such panels and of Presiding Members. Each panel shall be empowered to decide cases by majority vote. A majority of the number of Board Members authorized to constitute a panel shall constitute quorum for such panel. Each threemember panel may exercise the appropriate authority of the Board as set out in part 3 that is necessary for the adjudication of cases before it. In the case of an unopposed motion or a motion to withdraw an appeal pending before the Board, a single Board Member or the Chief Attorney Examiner may exercise the appropriate authority of the Board as set out in part 3 that is necessary for the adjudication of such motions before it. In addition, a single Board Member may exercise such authority in disposing of the following matters: a Service motion to remand an appeal from the denial of a visa petition where the Regional Service Center Director requests that the matter be remanded to the Service for further consideration of the appellant's arguments or evidence raised on appeal; a case where remand is required because of a defective or missing transcript; and other procedural or ministerial issues as provided by the Chairman. A motion to reconsider or to reopen a decision that was rendered by a single Board Member may be adjudicated by that Board Member.

(2) Chairman. The Chairman shall direct, supervise, and establish internal operating procedures and policies of the Board. He shall designate a member of the Board to act as Chairman in his absence or unavailability. The Chairman shall be assisted in the performance of his duties by a Chief Attorney Examiner, who shall be directly responsible to the Chairman. The Chief Attorney Examiner shall serve as an Alternate Board Member when, in the absence or unavailability of a Board Member or Members or for other good cause, his participation is deemed necessary by the Chairman. Once designated, his participation in a case shall continue to its normal conclusion.

(3) Board Members. Board Members shall perform the quasi-judicial function of adjudicating cases coming before the Board.

(4) En banc process-(i) Full Board en banc. A majority of the permanent Board Members shall constitute quorum of the Board for purposes of convening the full Board en banc. The Board may on its own motion, by a majority vote of the permanent Board Members, or by direction of the Chairman, consider any case as the full Board en banc, or reconsider as the full Board en banc any case that has been considered or decided by a three-member panel or by a limited en banc panel.

(ii) Limited en banc panels. The Board may on its own motion, by a majority vote of the permanent Board Members, or by direction of the Chairman, assign a case or group of cases for consideration by a limited en banc panel, or assign a case that has been considered or decided by a three-member panel for reconsideration by a limited en banc panel. Each limited en banc panel shall consist of nine members. Each limited en banc panel shall contain the Chairman or Vice Chairman (as decided by the Chairman). If the Chairman and Vice Chairman are both disqualified in a particular case, then the most senior permanent Board Member who is not disqualified shall sit on the limited en banc panel as the Presiding Board Member. If the Chairman and Vice Chairman are both unavailable to hear a case that has been assigned to a limited en banc panel, but the Chairman is not disqualified, then the Chairman shall designate Presiding Board Member to sit on the limited en banc panel. If the Chairman is unavailable and disqualified, then the Vice Chairman, if unavailable and not disqualified, shall designate a presiding Board Member to sit on the limited en banc panel. Where a case that has been considered or decided by a three-member panel is assigned for review by a limited en banc panel, the en banc panel shall contain all available permanent Board Members who considered or decided that case as part of a three-member panel. The remaining members of each limited en banc panel will be randomly selected from among the permanent Board Members. The decision reached by a limited en banc panel shall be considered as the final decision of the Board in the case, unless the

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