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thorized to appear pursuant to 8 CFR 292.1;

(6) The address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Ap

pear; and

must include a certificate showing service on the opposing party pursuant to $3.32 which indicates the Immigration Court in which the charging document is filed. However, no charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to $83.19, 236.1(d) and 240.2(b) of this chapter.

(b) When an Immigration Judge has jurisdiction over an underlying proceeding, sole jurisdiction over applications for asylum shall lie with the Immigration Judge.

(c) Immigration Judges have jurisdiction to administer the oath of allegiance in administrative naturalization ceremonies conducted by the Service in accordance with $337.2(b) of this chapter. (57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 FR 10332, Mar. 6, 1997)

83.15 Contents of the order to show

cause and notice to appear and no

tification of change of address. (a) In the Order to Show Cause, the Service shall provide the following administrative information to the Executive Office for Immigration Review. Omission of any of these items shall not provide the alien with any substantive or procedural rights:

(1) The alien's names and any known aliases;

(2) The alien's address;

(3) The alien's registration number, with any lead alien registration number with which the alien is associated;

(4) The alien's alleged nationality and citizenship;

(5) The language that the alien understands;

(b) The Order to Show Cause and Notice to Appear must also include the following information:

(1) The nature of the proceedings against the alien;

(2) The legal authority under which the proceedings are conducted;

(3) The acts or conduct alleged to be in violation of law;

(4) The charges against the alien and the statutory provisions alleged to have been violated;

(5) Notice that the alien may be represented, at no cost to the government, by counsel or other representative au

(7) A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an in absentia hearing in accordance with 83.26.

(c) Contents of the Notice to Appear for removal proceedings. In the Notice to Appear for removal proceedings, the Service shall provide the following administrative information to the Immigration Court. Failure to provide any of these items shall not be construed as affording the alien any substantive or procedural rights.

(1) The alien's names and any known aliases;

(2) The alien's address;

(3) The alien's registration number, with any lead alien registration number with which the alien is associated;

(4) The alien's alleged nationality and citizenship; and

(5) The language that the alien understands.

(d) Address and telephone number. (1) If the alien's address is not provided on the Order to Show Cause or Notice to Appear, or if the address on the Order to Show Cause or Notice to Appear is incorrect, the alien must provide to the Immigration Court where the charging document has been filed, within five days of service of that document, a written notice of an address and telephone number at which the alien can be contacted. The alien may satisfy this requirement by completing and filing Form EOIR-33.

(2) Within five days of any change of address, the alien must provide written notice of the change of address on Form EOIR-33 to the Immigration Court where the charging document has been filed, or if venue has been changed, to the Immigration Court to which venue has been changed. (57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 FR 10332, Mar. 6, 1997]

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83.16 Representation.

(a) The government may be represented in proceedings before an Immigration Judge.

(b) The alien may be represented in proceedings before an Immigration Judge by an attorney or other representative of his or her choice in accordance with 8 CFR part 292, at no expense to the government. (52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571. Apr. 6, 1992, as amended at 62 FR 10332, Mar. 6, 1997]

notice to the alien specifying the new time and place of the proceeding and the consequences under section 240(b)(5) of the Act of failing, except under exceptional circumstances as defined in section 240(e)(1) of the Act, to attend such proceeding. No such notice shall be required for an alien not in detention if the alien has failed to provide the address required in section 239(a)(1)(F) of the Act.

[62 FR 10332, Mar. 6, 1997]

83.17 Appearances.

(a) In any proceeding before an Immigration Judge in which the alien is represented, the attorney or representative shall file a Notice of Appearance on Form EOIR-28 with the Immigration Court and shall serve a copy of the Notice of Appearance on the Service as required by 8 CFR 3.32(a). Such Notice of Appearance must be filed and served even if a separate Notice of Appearance(s) has previously been filed with the Service for appearance(s) before the Se rice.

(b) Withdrawal or substitution of an attorney or representative may be permitted by an Immigration Judge during proceedings only upon oral or written motion submitted without fee. [57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 FR 10332, Mar. 6, 1997]

83.19 Custody/bond.

(a) Custody and bond determinations made by the service pursuant to 8 CFR part 236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 236.

(b) Application for an initial bond redetermination by a respondent, or his or her attorney or representative, may be made orally, in writing, or, at the discretion of the Immigration Judge, by telephone.

(c) Applications for the exercise of authority to review bond determinations shall be made to one of the following offices, in the designated order:

(1) If the respondent is detained, to the Immigration Court having jurisdiction over the place of detention;

(2) To the Immigration Court having administrative control over the case; or

(3) To the Office of the Chief Immigration Judge for designation of an appropriate Immigration Court.

(d) Consideration by the Immigration Judge of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding. The determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Service.

(e) After an initial bond redetermination, a request for a subsequent bond redetermination shall be made in writing and shall be considered only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination.

83.18 Scheduling of cases.

(a) The Immigration Court shall be responsible for scheduling cases and providing notice to the government and the alien of the time, place, and date of hearings.

(b) In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing. In the case of any change or postponement in the time and place of such proceeding, the Immigration Court shall provide written

(f) The determination of an Immigration Judge with respect to custody status or bond redetermination shall be entered on the appropriate form at the time such decision is made and the parties shall be informed orally or in writing of the reasons for the decision. An appeal from the determination by an Immigration Judge may be taken to the Board of Immigration Appeals pursuant to $3.38.

(g) While any proceeding is pending before the Executive Office for Immigration Review, the Service shall immediately advise the Immigration Court having administrative control over the Record of Proceeding of a change in the respondent/applicant's custody location or of release from Service custody, or subsequent taking into Service custody, of a respondent/ applicant. This notification shall be in writing and shall state the effective date of the change in custody location or status, and the respondent/applicant's current fixed street address, including zip code.

(h)(1)(i) While the Transition Period Custody Rules (TPCR) set forth in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in effect, an immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act;

(C) Aliens described in section 237(a)(4) of the Act;

(D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who are not "lawfully admitted” (as defined in $236.1(c)(2) of this chapter); or

(E) Aliens designated in $236.1(c) of this chapter as ineligible to be considered for release.

(ii) Nothing in this paragraph shall be construed as prohibiting an alien from seeking a redetermination of custody conditions by the Service in accordance with part 235 or 236 of this chapter. In addition, with respect to paragraphs (h)(1)(1)(C), (D), and (E) of this section, nothing in this paragraph shall be construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is

not properly included within any of those paragraphs.

(2)(i) Upon expiration of the Transition Period Custody Rules set forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act;

(C) Aliens described in section 237(a)(4) of the Act;

(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act (as in effect after expiration of the Transition Period Custody Rules); and

(E) Aliens in deportation proceedings subject to section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and as amended by section 440(c) of Pub. L. 104-132).

(ii) Nothing in this paragraph shall be construed as prohibiting an alien from seeking a redetermination of custody conditions by the Service in accordance with part 235 or 236 of this chapter. In addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in this paragraph shall be construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is not properly included within any of those paragraphs.

(3) Except as otherwise provided in paragraph (h)(1) of this section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L. 104–208 may apply to the Immigration Court, in a manner consistent with paragraphs (c)(1) through (c)(3) of this section, for a redetermination of custody conditions set by the Service. Such an alien must first demonstrate, by clear and convincing evidence, that release would not pose a danger to other persons or to property. If an alien meets this burden, the alien must further demonstrate, by clear and convincing evidence, that the alien is likely to appear for any scheduled proceeding or interview.

(4) Unremovable aliens. A determination of a district director (or other official designated by the Commissioner)

ex

regarding the exercise of authority been given notice and an opportunity under section 303(b)(3)(B)(ii) of Div. C. to respond to the motion to change of Pub. L. 104-208 (concerning release of venue. aliens who cannot be removed because

(c) No change of venue shall be grantthe designated country of removal will

ed without identification of a fixed not accept their return) is final, and

street address, including city, state shall not be subject to redetermination

and ZIP code, where the respondent/apby an immigration judge.

plicant may be reached for further (i) Stay of custody order pending Serv

hearing notification. ice appeal—(1) General emergency stay authority. The Board of Immigration (57 FR 11572, Apr. 6, 1992, as amended at 60 Appeals (Board) has the authority to FR 34089, June 30, 1995; 62 FR 10332, Mar. 6, stay the order of an immigration judge

1997] redetermining the conditions of custody of an alien when the Service ap

83.21 Pre-hearing conferences and

statement. peals the custody decision. The Service is entitled to seek an emergency stay (a) Pre-hearing conferences may be for the Board in connection with such scheduled at the discretion of the Iman appeal at any time.

migration Judge. The conference may (2) Automatic stay in certain cases. If be held to narrow issues, to obtain stipan alien is subject to section 242(a)(2) ulations between the parties, to of the Act (as in effect prior to April 1, change information voluntarily, and 1997, and as amended by section 440(c)

otherwise to simplify and organize the of Pub. L. 104-132), section 303(b)(3)(A)

proceeding of Div. C of Pub. L. 104-208, or section

(b) The Immigration Judge may 236(c)(1) of the Act (as designated on

order any party to file a pre-hearing April 1, 1997), and the district director

statement of position that may inhas denied the alien's request for re

clude, but is not limited to: A statelease or has set a bond of $10,000 or more, any order of the immigration

ment of facts to which both parties judge authorizing release (on bond or

have stipulated, together with a stateotherwise) shall be stayed upon the

ment that the parties have commuService's filing of a Notice of Service

nicated in good faith to stipulate to Intent to Appeal Custody Redetermina

the fullest extent possible; a list of protion (Form EOIR-43) with the Immigra- posed witnesses and what they will estion Court on the day the order is tablish; a list of exhibits, copies of exissued, and shall remain in abeyance hibits to be introduced, and a statepending decision of the appeal by the

ment of the reason for their introducBoard of Immigration Appeals. The tion; the estimated time required to stay shall lapse upon failure of the present the case; and, a statement of Service to file a timely notice of appeal unresolved issues involved in the proin accordance with 83.38.

ceedings. (57 FR 11571, Apr. 6, 1992, as amended at 60

(c) If submission of a pre-hearing FR 34089, June 30, 1995; 62 FR 10332, Mar. 6,

statement is ordered under paragraph 1997; 63 FR 27448, May 19, 1998]

(b) of this section, an Immigration

Judge also may require both parties, in 83.20 Change of venue.

writing prior to the hearing, to make (a) Venue shall lie at the Immigra- any evidentiary objections regarding tion Court where jurisdiction vests matters contained in the pre-hearing pursuant to 83.14.

statement. If objections in writing are (b) The Immigration Judge, for good required but not received by the date cause, may change venue only upon for receipt set by the Immigration motion by one of the parties, after the Judge, admission of all evidence decharging document has been filed with scribed in the pre-hearing statement the Immigration Court. The Immigra- shall be deemed unopposed. tion Judge may grant a change of venue only after the other party has

(57 FR 11572, Apr. 6, 1992]

or

83.22 Interpreters.

sider shall constitute a withdrawal of

such motion. The time and numerical Any person acting as an interpreter

limitations set forth in this paragraph in a hearing shall swear or affirm to in

do not apply to motions by the Service terpret and translate accurately, unless the interpreter is an employee of

in removal proceedings pursuant to

section 240 of the Act. Nor shall such the United States Government, in which event no such oath or affirma

limitations apply to motions by the

Service in exclusion tion shall be required.

or deportation

proceedings, when the basis of the mo(52 FR 2936, Jan. 29, 1987. Redesignated at 57 tion is fraud in the original proceeding FR 11571, Apr. 6, 1992)

or a crime that would support termi

nation of asylum in accordance with $3.23 Reopening reconsideration

8208.22(e) of this chapter. before the Immigration Court.

(i) Form and contents of the motion. (a) Pre-decision motions. Unless other- The motion shall be in writing and wise permitted by the Immigration signed by the affected party or the atJudge, motions submitted prior to the torney or representative of record, if final order of an Immigration Judge any. The motion and any submission shall be in writing and shall state, with made in conjunction with it must be in particularity the grounds therefore, English or accompanied by a certified the relief sought, and the jurisdiction. English translation. Motions to reopen The Immigration Judge may set and or reconsider shall state whether the extend time limits for the making of validity of the exclusion, deportation, motions and replies thereto. A motion or removal order has been or is the subshall be deemed unopposed unless time- ject of any judicial proceeding and, if ly response is made.

so, the nature and date thereof, the (b) Before the Immigration Court-(1) court in which such proceeding took In general. An Immigration Judge may place or is pending, and its result or upon his or her own motion at any status. In any case in which an exclutime, or upon motion of the Service or sion, deportation, or removal order is the alien, reopen or reconsider any case in effect, any motion to reopen or rein which he or she has made a decision, consider such order shall include a unless jurisdiction is vested with the statement by or on behalf of the movBoard of Immigration Appeals. Subject ing party declaring whether the subject to the exceptions in this paragraph and of the order is also the subject of any paragraph (b)(4), a party may file only pending criminal proceeding under the one motion to reconsider and one mo- Act, and, if so, the current status of tion to reopen proceedings. A motion that proceeding. to reconsider must be filed within 30 (ii) Filing. Motions to reopen or redays of the date of entry of a final ad- consider a decision of an Immigration ministrative order of removal, deporta- Judge must be filed with the Immigration, or exclusion, or on or before July tion Court having administrative con31, 1996, whichever is later. A motion to trol over the Record of Proceeding. A reopen must be filed within 90 days of motion to reopen or a motion to reconthe date of entry of a final administra- sider shall include a certificate showtive order of removal, deportation, or ing service on the opposing party of the exclusion, or on or before September motion and all attachments. If the 30, 1996, whichever is later. A motion to moving party is not the Service, seryreopen or to reconsider shall not be ice of the motion shall be made upon made by or on behalf of a person who is the Office of the District Counsel for the subject of removal, deportation, or the district in which the case was comexclusion proceedings subsequent to pleted. If the moving party, other than his or her departure from the United the Service, is represented, a Form States. Any departure from the United EOIR-28, Notice of Appearance as AtStates, including the deportation or re- torney or Representative Before an Immoval of a person who is the subject of migration Judge must be filed with the exclusion, deportation, or removal pro- motion. The motion must be filed in ceedings, occurring after the filing of a duplicate with the Immigration Court, motion to reopen or a motion to recon- accompanied by a fee receipt.

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