airport as an international airport for the entry of aliens shall be made to the Commissioner and shall state whether the airport: (a) Has been approved by the Secretary of Commerce as a properly equipped airport, (b) has been designated by the Secretary of the Treasury as a port of entry for aircraft arriving in the United States from any place outside thereof and for the merchandise carried thereon, and (c) has been designated by the Secretary of Health, Education, and Welfare as a place for quarantine inspection. An airport shall not be so designated by the Commissioner without such prior approval and designation, and unless it appears to the satisfaction of the Commissioner that conditions render such designation necessary or advisable, and unless adequate facilities have been or will be provided at such airport without cost to the Federal Government for the proper inspection and disposition of aliens, including office space and such temporary detention quarters as may be found necessary. The designation of an airport as an international airport for the entry of aliens may be withdrawn whenever, in the judgment of the Commissioner, there appears just cause for such action.

PART 241-JUDICIAL RECOMMENDATIONS AGAINST DEPORTATION § 241.1

Notice; recommendation.

For the purposes of clause 2 of section 241(b) of the Act, notice to the district director having administrative jurisdiction over the place in which the court imposing sentence is located shall be regarded as notice to the Service. The notice shall be transmitted to the district director by the court, a court official, or by counsel for the prosecution or the defense, at least 5 days prior to the court hearing on whether a recommendation against deportation shall be made. If less than 5 days' notice is received and sufficient time remains to prepare proper representations, due notice shall be regarded as having been made. When less than 5 days' notice is received and sufficient time is not available to prepare proper representations, but the 30-day statutory period will expire before

proper representations can be prepared, an objection shall be interposed to the recommendation against deportation on the ground that due notice was not received. If the notice is received after the running of the 30-day statutory period, it shall be regarded as an invalid notice and whatever Service proceedings are warranted shall be instituted irrespective of the recommendation against deportation. The district director, or an official acting for him, in presenting representations to the court, shall advise the court the effect a favorable recommendation would have upon the alien's present and prospective deportability. A recommendation against deportation by the sentencing court made to the district director receiving the notice shall be regarded as made to the Attorney General.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103) [32 FR 11517, Aug. 10, 1967]

Sec.

242.23 Proceedings under section 242(f) of the Act.

AUTHORITY: Secs. 103, 242, 244, 292, 66 Stat. 173, 208, as amended, 214, 235; 8 U.S.C. 1103, 1252, 1254, 1362, unless otherwise noted.

§ 242.1 Order to show cause and notice of hearing.

(a) Commencement. Every proceeding to determine the deportability of an alien in the United States is commenced by the issuance and service of an order to show cause by the Service. In the proceeding the alien shall be known as the respondent. Orders to show cause may be issued by district directors, acting district directors, deputy district directors, assistant district directors for investigations, and Officers in Charge at Agana, GU; Albany, NY; Charlotte Amalie, VI; Cincinnati, OH; Hammond, IN; Milwaukee, WI; Norfolk, VA; Oklahoma City, OK; Pittsburgh, PA; Providence, RI; Salt Lake City, UT; St. Louis, MO; Spokane, WA.

(b) Statement of nature of proceeding. The order to show cause will contain a statement of the nature of the proceeding, the legal authority under which the proceeding is conducted, a concise statement of factual allegations informing the respondent of the act or conduct alleged to be in violation of the law, and a designation of the charges against the respondent and of the statutory provisions alleged to have been violated. The order will require the respondent to show cause why he should not be deported. The order will call upon the respondent to appear before an immigration judge for a hearing at a time and place which may be stated in the order or may be later specified. Respondent shall be notified of the time and place of the hearing not less than 7 days before the hearing date except that where the issuing officer, in his discretion, believes that the public interest, safety, or security so requires, he may schedule the hearing on shorter notice. The issuing officer may, in his discretion, schedule the hearing on shorter notice in any other case at the request of and for the convenience of the respondent.

(c) Service. Service of the order to

show cause may be accomplished either by personal service or by routine service; however, when routine service is used and the respondent does not appear for hearing or acknowledge in writing that he has received the order to show cause, it shall be reserved by personal service. When personal delivery of an order to show cause is made by an immigration officer, the contents of the order to show cause shall be explained and the respondent shall be advised that any statement he makes may be used against him. He shall also be advised of his right to representation by counsel of his own choice at no expense to the Government. He shall also be advised of the availability of free legal services programs qualified under Part 292a of this chapter and organizations recognized pursuant to § 292.2 of this chapter, located in the district where his deportation hearing will be held. He shall be furnished with a list of such programs, and a copy of Form I618, Written Notice of Appeal Rights, regardless of the manner in which the service of the order to show cause was accomplished. Service of these documents shall be noted on Form I-213.

(Secs. 103, 242 and 287; 8 U.S.C. 1103, 1252 and 1357)

[22 FR 9796, Dec. 6, 1957, as amended at 39 FR 20367, June 10, 1974; 42 FR 15408, Mar. 22, 1977; 42 FR 38893, Aug. 1, 1977; 43 FR 22332, May 25, 1978; 43 FR 36239, Aug. 16, 1978; 44 FR 4653, Jan. 23, 1979; 44 FR 15996, Mar. 16, 1979]

§ 242.2 Apprehension, custody, and detention.

(a) Warrant of arrest. At the commencement of any proceeding under this part, or at any time thereafter and up to the time the respondent becomes subject to supervision under the authority contained in section 242(d) of the Act, the respondent may be arrested and taken into custody under the authority of a warrant of arrest. However, such warrant may be issued by no one other than a district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), and then only whenever, in

his discretion, it appears that the arrest of the respondent is necessary or desirable. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any officer authorized to issue such warrant may authorize its cancellation. When a warrant of arrest is served under this part, the respondent shall have explained to him the contents of the order to show cause, the reason for his arrest and his right to be represented by counsel of his own choice at no expense to the Government. He shall also be advised of the availability of free legal services programs qualified under Part 292a of this chapter and organizations recognized pursuant to § 292.2 of this chapter, located in the district where his deportation hearing will be held. He shall be furnished with a list of such programs, and a copy of Form I-618, Written Notice of Appeal Rights. Service of these documents shall be noted on Form I-213. He shall be advised that any statement he makes may be used against him. He shall also be informed whether he is to be continued in custody or, if release from custody has been authorized, of the amount and conditions of the bond or the conditions under which he may be released. A respondent on whom a warrant of arrest has been served may apply to the district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), for release or for amelioration of the conditions under which he may be released. The district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), when serving the warrant of arrest and when determining any application pertaining thereto, shall furnish the respondent with a notice of decision, which may be on Form I-286, indicating whether custody will be continued or terminated, specifying the conditions, if any, under which release is permitted, and advising the respondent appropriately whether he may apply to an immigration judge pursuant to paragraph (b) of this section for release or modification of the conditions of release or

whether he may appeal to the Board. A direct appeal to the Board from a determination by a district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), shall not be allowed except as authorized by paragraph (b) of this section.

(b) Authority of immigration judge; appeals. After an initial determination pursuant to paragraph (a) of this section, and at any time before a deportation order becomes administratively final, upon application by the respondent for release from custody or for amelioration of the conditions under which he may be released, an immigration judge may exercise the authority contained in section 242 of the Act to continue or detain a respondent in, or release him from custody, and to determine whether a respondent shall be released under bond, and the amount thereof, if any. Application for the exercise of such authority may be made to any available immigration judge who is stationed at the Service office which has administrative jurisdiction over the proceeding under the order to show cause or who conducts hearings there. If no such immigration judge is available, application may be made to any available immigration judge stationed in the region wherein said Service office is located. If there is no available immigration judge in that region, the application may be made to any other immigration judge. However, if the respondent has been released from custody, such application must be made within seven days after the date of such release. Thereafter, application by a released respondent for modification of the terms of release may be made only to the district director. In connection with such application the immigration judge shall advise the respondent of his right to be represented by counsel of his own choice at no expense to the Government. He shall also be advised of the availability of free legal services programs qualified under Part 292a of this chapter and organizations recognized pursuant to § 292.2 of this chapter, located in the district where his application is to be heard. The Immigration Judge shall ascertain that the

respondent has received a list of such programs, and the receipt by the respondent of a copy of Form I-618, Written Notice of Appeal Rights. Upon rendering a decision on an application under this section, the Immigration Judge (or district director if he renders the decision) shall advise the alien of his appeal rights under this section. The determination of the immigration judge in respect to custody status or bond shall be entered on Form I-342 at the time such determination is made and shall be accompanied by a memorandum by the immigration judge as to the reasons for his determination. The immigration judge shall promptly notify the respondent and the Service of such determination. Consideration under this paragraph by the immigration judge of an application or request of an alien regarding custody or bond shall be separate and apart from any deportation hearing or proceeding under this part, and shall form no part of such hearing or proceeding or of the record thereof. The determination of the immigration judge as to custody status or bond may be based upon any information which is available to the immigration judge or which is presented to him by the alien or the Service. The alien and the Service may appeal to the Board of Immigration Appeals from any such determination. After a deportation order becomes administratively final, or if recourse to the immigration judge is no longer available because of the expiration of the seven-day period aforementioned, the respondent may appeal directly to the Board from a determination by the district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), except that no appeal shall be allowed when the Service notifies the alien that it is ready to execute the order of deportation and takes him into custody for that purpose. An appeal to the Board shall be taken from a determination by an immigration judge or from an appealable determination by a district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumer

ated in § 242.1(a) by filing a notice of appeal with the district director within five days after the date when written notification of the determination is served upon the respondent and the Service. Upon the filing of a notice of appeal, the district director shall immediately transmit to the Board all records and information pertaining to the determination from which the appeal has been taken. The filing of such an appeal shall not operate to delay compliance, during the pendency of the appeal, with the custody directive from which appeal is taken, or to stay the administrative proceedings or deportation.

(c) Revocation. When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and cancelled. The provisions of paragraph (b) of this section shall govern availability to the respondent of recourse to other administrative authority for release from custody.

(d) Supervision. Until an alien against whom a final order of deportation has been outstanding for more than six months is deported, he shall be subject to supervision by a district director, acting district director, deputy district director, assistant district director for investigations, or officer in charge of an office enumerated in § 242.1(a), and required to comply with the provisions of section 242(d) of the Act relating to his availability for deportation.

(e) Privilege of communication. Every detained alien shall be notified that he may communicate with the consular of diplomatic officers of the country of his nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever nationals of the following countries are detained in exclusion of expulsion proceedings, whether

90-026 0-82--11

'Unless national requests that such information not be transmitted.

2If National is an alien admitted to lawful permanent residence, communication will be made with Polish consulate only upon the request of such national.

3If national requests his government be notified, INS must notify immediately.

"Notification must be made within two days.
"Notification must be made within three days.

[28 FR 8280, Aug. 13, 1963, as amended at 32 FR 5619, Apr. 6, 1967; 39 FR 20367, June 10, 1974; 39 FR 20959, June 17, 1974; 40 FR 30470, July 21, 1975; 40 FR 50250, Oct. 29, 1975; 44 FR 4654, Jan. 23, 1979]

§ 242.3 Confined aliens, incompetents, and minors.

(a) Service. If the respondent is confined, or if he is an incompetent, or a minor under the age of 14, the order to show cause, and the warrant of arrest, if issued, shall be served in the manner prescribed in § 242.1(c) upon the person or persons named in § 103.5a(c) of this chapter.

(b) Service custody; cost of maintenance. An alien confined because of physical or mental disability in an institution or hospital shall not be accepted into physical custody by the Service until an order of deportation has been entered and the Service is ready to deport the alien. When such an alien is an inmate of a public or private institution at the time of the commencement of the deportation proceedings, expenses for the mainte