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it is directed to attend and to give tes- (b) A written copy of the decision timony at a time and place specified. will not be sent to an alien who has The subpoena may also command the failed to provide a written record of an person to whom it is directed to address. produce the books, papers, or docu
(57 FR 11573, Apr. 6, 1992, as amended at 59 ments specified in the subpoena.
FR 1900, Jan. 13, 1994] (4) Appearance of witness. If the witness is at a distance of more than 100 83.38 Appeals. miles from the place of the proceeding,
(a) Decisions of Immigration Judges the subpoena shall provide for the wit
may be appealed to the Board of Imminess' appearance at the Immigration
gration Appeals as authorized by 8 CFR Court nearest to the witness to respond
3.1(b). to oral or written interrogatories, un
(b) The Notice of Appeal to the Board less there is no objection by any party to the witness' appearance at the pro
of Immigration Appeals of Decision of
Immigration Judge (Form EOIR-26) ceeding.
shall be filed directly with the Board of (5) Service. A subpoena issued under
Immigration Appeals within 30 calthis section may be served by any per
endar days after the stating of an Imson over 18 years of age not a party to
migration Judge's oral decision or the the case.
mailing of an Immigration Judge's (6) Invoking aid of court. If a witness
written decision. If the final date for neglects or refuses to appear and tes- filing falls on a Saturday, Sunday, or tify as directed by the subpoena served
legal holiday, this appeal time shall be upon him or her in accordance with the
extended to the next business day. A provisions of this section, the Immigra- Notice of Appeal (Form EOIR-26) may tion Judge issuing the subpoena shall
not be filed by any party who has request the United States Attorney for
waived appeal. the district in which the subpoena was (c) The date of filing of the Notice of issued to report such neglect or refusal
Appeal (Form EOIR-26) shall be the to the United States District Court and
date the Notice is received by the to request such court to issue an order
Board. requiring the witness to appear and
(d) A Notice of Appeal (Form EOIRtestify and to produce the books, pa- 26) must be accompanied by the appropers or documents designated in the
priate fee or by an Appeal Fee Waiver subpoena.
Request (Form EOIR-26A). If the fee is (62 FR 10335, Mar. 6, 1997)
not paid or the Appeal Fee Waiver Re
quest (Form EOIR-26A) is not filed 83.36 Record of proceeding.
within the specified time period indi
cated in paragraph(b) of this section, The Immigration Court shall create
the appeal will not be deemed properly and control the Record of Proceeding.
filed and the decision of the Immigra(52 FR 2936, Jan. 29, 1987. Redesignated at 57 tion Judge shall be final to the same FR 11571, Apr. 6, 1992, as amended at 60 FR extent as though no appeal had been 34089, June 30, 1995)
(e) Within five working days of any 83.37 Decisions.
change of address, an alien must pro(a) A decision of the Immigration vide written notice of the change of adJudge may be rendered orally or in dress on Form EOIR-33 to the Board. writing. If the decision is oral, it shall Where a party is represented, the repbe stated by the Immigration Judge in resentative should also provide to the the presence of the parties and a Board written notice of any change in memorandum summarizing the oral de- the representative's business mailing cision shall be served on the parties. If address. the decision is in writing, it shall be (f) Briefs may be filed by both parties served on the parties by first elass mail pursuant to 8 CFR 3.3(c). to the most recent address contained in (g) In any proceeding before the the Record of Proceeding or by per- Board wherein the respondent/applisonal service.
cant is represented, the attorney or
representative shall file a notice of appearance on the appropriate form. Withdrawal or substitution of an attorney or representative may be permitted by the Board during proceedings only upon written motion submitted without fee. (52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996)
83.39 Finality of decision.
Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.
(52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 11573, Apr. 6, 1992)
83.40 Local operating procedures.
An Immigration Court having administrative control over Records of Proceedings may establish local operating procedures, provided that:
(a) Such operating procedure(s) shall not be inconsistent with any provision of this chapter;
(b) A majority of the judges of the local Immigration Court shall concur in writing therein; and
(c) The Chief Immigration Judge has approved the proposed operating procedure(s) in writing. (52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34090, June 30, 1995)
official associated with the state's repository of criminal justice records, that indicates the following: The charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence;
(6) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
(b) Any document or record of the types specified in paragraph (a) of this section may be submitted if it complies with the requirement of $287.6(a) of this chapter, or a copy of any such document or record may be submitted if it is attested in writing by an immigration officer to be a true and correct copy of the original.
(c) Any record of conviction or abstract that has been submitted by electronic means to the Service from a state or court shall be admissible as evidence to prove a criminal conviction if it:
(1) Is certified by a state official associated with the state's repository of criminal justice records as an official record from its repository or by a court official from the court in which conviction was entered as an official record from its repository. Such certification may be by means of a computer-generated signature and statement of authenticity; and,
(2) Is certified in writing by a Service official as having been received electronically from the state's record repository or the court's record repository.
(d) Any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.
(58 FR 38953, July 21, 1993)
83.41 Evidence of criminal conviction.
In any proceeding before an Immigration Judge,
(a) Any of the following documents or records shall be admissible as evidence in proving a criminal conviction:
(1) A record of judgment and conviction;
(2) A record of plea, verdict and sentence;
(3) A docket entry from court records that indicates the existence of a conviction;
(4) Minutes of a court proceeding or a transcript of a hearing that indicates the existence of a conviction;
(5) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state
83.42 Review of credible fear deter.
mination. (a) Referral. Jurisdiction for an Immigration Judge to review an adverse credible fear finding by an asylum officer pursuant to section 235(b)(1)(B) of the Act shall commence with the filing by the Service of Form I-863, Notice of Referral to Immigration Judge. The Service shall also file with the notice of referral a copy of the written record
of determination as defined in section tion Court to commence removal pro235(b)(1)(B)(iii)(II) of the Act, including ceedings. The alien shall have the opa copy of the alien's written request for portunity to apply for asylum and review, if any.
withholding of removal in the course of (b) Record of proceeding. The Immi- removal proceedings pursuant to secgration Court shall create a Record of tion 240 of the Act. If an immigration Proceeding for a review of an adverse judge determines that an alien does not credible fear determination. This have a credible fear of persecution or record shall not be merged with any torture, the immigration judge shall later proceeding pursuant to section affirm the asylum officer's determina240 of the Act involving the same alien. tion and remand the case to the Sery
(c) Procedures and evidence. The Im- ice for execution of the removal order migration Judge may receive into evi
section dence any oral or written statement 235(b)(1)(B)(iii)(I) of the Act. No appeal which is material and relevant to any shall lie from a review of an adverse issue in the review. The testimony of credible fear determination made by an the alien shall be under oath or affir- immigration judge. mation administered by the Immigra
(8) Custody. An Immigration Judge tion Judge. If an interpreter is nec- shall have no authority to review an essary, one will be provided by the Im
alien's custody status in the course of migration Court. The Immigration
a review of an adverse credible fear deJudge shall determine whether the re
termination made by the Service. view shall be in person, or through telephonic or video connection (where [62 FR 10335, Mar. 6, 1997, as amended at 64 available). The alien may consult with
FR 8487, Feb. 19, 1999) a person or persons of the alien's choosing prior to the review.
83.43 Motion to reopen for suspension (d) Standard of review. The immigra
of deportation and cancellation of tion judge shall make a de novo deter
removal pursuant to section 203(c)
of the Nicaraguan Adjustment and mination as to whether there is a sig- Central American Relief Act nificant possibility, taking into ac- (NACARA). count the credibility of the statements made by the alien in support of the
(a) Standard for adjudication. Except alien's claim and such other facts as
as provided in this section, a motion to are known to the immigration judge,
reopen proceedings under section 309(8) that the alien could establish eligi
of IIRIRA, as amended by section 203(c) bility for asylum under section 208 of
of NACARA, will be adjudicated under the Act or withholding under section
applicable statutes and regulations 241(b)(3) of the Act or withholding
governing motions to reopen. under the Convention Against Torture.
(b) Aliens eligible to reopen proceedings (e) Timing. The Immigration Judge
under section 203 of NACARA. A motion shall conclude the review to the max
to reopen proceedings to apply for susimum extent practicable within 24
pension of deportation or cancellation hours, but in no case later than 7 days of removal under the special rules of after the date the supervisory asylum
section 309(g) of IIRIRA, as amended by officer has approved the asylum offi
section 203(C) of NACARA, must estabcer's negative credible fear determina
lish that the alien: tion issued on Form 1-869, Record of
(1) Is prima facie eligible for suspenNegative Credible Fear Finding and sion of deportation pursuant to section Request for Review.
244(a) of the INA (as in effect prior to (f) Decision. If an immigration judge
April 1, 1997) or the special rule for candetermines that an alien has a credible cellation of removal pursuant to secfear of persecution or torture, the im- tion 309(f) of IIRIRA, as amended by migration judge shall vacate the order section 203(b) of NACARA; entered pursuant to section (2) Was or would be ineligible: 235(b)(1)(B)(iii)(I) of the Act. Subse- (i) For suspension of deportation by quent to the order being vacated, the operation of section 309(c)(5) of IIRIRA Service shall issue and file Form I-862, (as in effect prior to November 19, 1997); Notice to Appear, with the Immigra
(ii) For cancellation of removal pursuant to section 240A of the INA, but for operation of section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
(3) Has not been convicted at any time of an aggravated felony; and
(4) Is within one of the following six classes:
(i) A national of El Salvador who:
(A) First entered the United States on or before September 19, 1990;
(B) Registered for benefits pursuant to the settlement agreement in American Baptist Churches, et
V. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991) (ABC) on or before October 31, 1991, or applied for Temporary Protected Status (TPS) on or before October 31, 1991; and
(C) Was not apprehended after December 19, 1990, at time of entry; or
(ii) A national of Guatemala who:
(A) First entered the United States on or before October 1, 1990;
(B) Registered for ABC benefits on or before December 31, 1991; and
(C) Was not appr ded after December 19, 1990, at time of entry; or
(iii) A national of Guatemala or El Salvador who applied for asylum with INS on or before April 1, 1990; or
(iv) An alien who:
(A) Entered the United States on or before December 31, 1990;
(B) Applied for asylum on or before December 31, 1991; and
(C) At the time of filing such application for asylum was a national of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia; or
(v) The spouse or child of a person who is described in paragraphs (b)(4)(i) through (b)(4)(iv) of this section and such person is prima facie eligible for and has applied for suspension of deportation or special rule cancellation of removal under section 203 of NACARA.
(vi) An unmarried son or daughter of a person who is described in paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person is prima facie eligible for and has applied for suspension of deportation or special rule cancellation of removal under section 203 of
NACARA. If the son or daughter is 21 years of or older, the son or daughter must have entered the United States on or before October 1, 1990.
(c) Motion to reopen under section 203 of NACARA. (1) An alien ag a motion to reopen proceedings pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, may initially file a motion to reopen without an application for suspension of deportation or cancellation of removal and supporting documents, but the motion must be filed no later than September 11, 1998. The alien must allege in such motion to reopen that the alien:
(i) Is prima facie gible for suspension of deportation pursuant to section 244(a) of the INA (as in effect prior to April 1, 1997) or the special rule for cancellation of removal pursuant to section 309(g) of IIRIRA, as amended by section 203(b) of NACARA;
(ii) Was or would be ineligible:
(A) For suspension of deportation by operation of section 309(c)(5) of IIRIRA (as in effect prior to November 19, 1997); or
(B) For cancellation of removal pursuant to section 240A of the INA, but for operation of section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
(iii) Has not been convicted at any time of an aggravated felony; and
(iv) Falls within one of the six classes described in paragraph (b)(4) of this section.
(2) A motion to reopen filed pursuant to paragraph (c)(1) shall be considered complete at the time of submission of an application for suspension of deportation or special rule cancellation of removal and accompanying documents. Such application must be submitted no later than 150 days after the effective date of the rule implementing section 203 of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of this section must include, as part of their submission, proof that their parent or spouse is prima facie eligible and has applied for relief under section 203 of NACARA.
(3) The Service shall have 45 days from the date the alien serves the Immigration Court with either the EOIR Form 40 or the Form I-881 application for suspension of deportation or special
rule cancellation of removal to respond to that completed motion. If the alien fails to submit the required application within 150 days after the effective date of the rule implementing section 203 of NACARA, the motion will be denied as abandoned.
(d) Fee for motion to reopen waived. No filing fee is required for a motion to reopen to apply for suspension of deportation or cancellation of removal under the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.
(e) Jurisdiction over motions to reopen under section 203 of NACARA and remand of appeals. (1) Notwithstanding any other provisions, any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with the Immigration Court, even if the Board of Immigration Appeals issued an order in the case. The Immigration Court that last had jurisdiction over the proceedings will adjudicate a motion to reopen filed pursuant to the special rules of section 309(g) of TIRIRA, as amended by section 203(c) of NACARA.
(2) The Board will remand to the Immigration Court any presently pending appeal in which the alien appears eligible to apply for suspension of deportation or cancellation of removal under the special rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA, and appears prima facie eligible for that relief. The alien will then have the opportunity to apply for suspension or cancellation under the special rules of NACARA before the Immigration Court. [63 FR 31894, June 11, 1998; 63 FR 35117, June 29, 1998, as amended at 64 FR 13666, Mar. 22, 1999)
this subpart which provide free legal services. This list, which shall be updated not less than quarterly, shall be provided to aliens in immigration proceedings. The Chief Immigration Judge may designate an employee or employees to carry out his or her responsibilities under this subpart. Organizations and attorneys may be included on the list of free legal services providers if they qualify under one of the following categories:
(1) Organizations recognized under $ 292.2 of this chapter that meet the qualifications set forth in 83.62(a) and whose representatives, if any, are authorized to practice before the Board and Immigration Courts;
(2) Organizations not recognized under $292.2 of this chapter that meet the qualifications set forth in 83.62(b);
(3) Bar associations that meet the qualifications set forth in $3.62(c); and
(4) Attorneys, as defined in $1.1(f) of this chapter, who meet the qualifications set forth in 83.62(d).
(b) The listing of an organization qualified under this subpart is not equivalent to recognition under $292.2 of this chapter. 83.62 Qualifications.
(a) Organizations recognized under $ 292.2. An organization that is recognized under $ 292.2 of this chapter that seeks to have its name appear on the list of free legal services providers maintained by the Chief Immigration Judge must have on its staff:
(1) An attorney, as defined in $1.1(f) of this chapter; or
(2) At least one accredited representative, as defined in $ 292.1(a)(4) of this chapter, who is authorized to practice before the Board and Immigration Courts.
(b) Organizations not recognized under $ 292.2. An organization that is not recognized under $292.2 of this chapter that seeks to have its name appear on the list of free legal services viders maintained by the Chief Immigration Judge must declare that:
(1) It is established in the United States;
(2) It provides free legal services to indigent aliens; and
(3) It has on its staff, or retains at no expense to the alien, an attorney, as defined in 81.1(f) of this chapter, who is
Subpart D [Reserved) ]
Subpart E-List of Free Legal
SOURCE: 62 FR 9073, Feb. 28, 1997, unless otherwise noted.
(a) The Chief Immigration Judge shall maintain a current list of organizations and attorneys qualified under