an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the special inquiry officer may not accept an admission of deportability, he shall direct a hearing on the issues.

(c) Issues of deportability. When deportability is not determined under the provisions of paragraph (b) of this section, the special inquiry officer shall request the assignment of a trial attorney, and shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading.

(d) Additional charges. A trial attorney who has been assigned to a case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent. The additional factual allegations and charges shall be submitted in writing and entered as an exhibit in the record. The special inquiry officer shall read the additional factual allegations and charges to the respondent and explain them to him in nontechnical language. The special inquiry officer shall advise the respondent if he is not represented by counsel that he may be so represented and also that he may have a reasonable time within which to meet the additional factual allegations and charges. The respondent shall be required to state then and there whether he desires a continuance for either of these reasons. Thereafter, the provisions of paragraph (b) of this section shall apply to the additional factual allegations and lodged charges.

[27 FR 9646, Sept. 29, 1962, as amended at 29 FR 13243, Sept. 24, 1964; 32 FR 9632, July 4, 1967; 44 FR 4654, Jan. 23, 1979]

§ 242.17 Ancillary matters, applications.

(a) Creation of the status of an alien lawfully admitted for permanent residence. The respondent may apply to the special inquiry officer for suspension of deportation under section 244(a) of the Act, for adjustment of status under section 245 of the Act, or under section 1 of the Act of November 2, 1966, or under section 101 or 104 of the Act of October 28, 1977, or for creation of a record of lawful admission for permanent residence under

section 214(d) or 249 of the Act; application shall be subject to th quirements contained in Parts 245, and 249 of this chapter. In junction with such applications, i respondent is inadmissible under provision of section 212(a) of the and believes he meets the eligib requirements for a waiver of ground of inadmissibility, he apply to the special inquiry office: such waiver. The special inquiry cer shall inform the respondent o apparent eligibility to apply for an the benefits enumerated in this p graph and shall afford him an op tunity to make application ther during the hearing. In exercising cretionary power when considering application under this paragraph, special inquiry officer may consi and base his decision on informat not contained in the record and made available for inspection by respondent, provided the Commissi er has determined that such inform tion is relevant and is classified unc Executive Order No. 12065 (43 E 28949, July 3, 1978) as requiring pr tection from unauthorized disclosu in the interest of national securit Whenever he believes he can do consistently with safeguarding bo the information and its source, tl special inquiry officer should infor the respondent of the general natu of the information in order that th respondent may have an opportunit to offer opposing evidence. A decisio based in whole or in part on such clas sified information shall state that th information is material to the deci sion.

(b) Voluntary departure. The re spondent may apply to the special in quiry officer for voluntary departure in lieu of deportation pursuant to section 244(e) of the Act and Part 244 of this chapter.

(c) Temporary withholding of deportation. The special inquiry officer shall notify the respondent that if he is finally ordered deported his deportation will in the first instance be directed pursuant to section 243(a) of the Act to the country designated by him and shall afford the respondent an opportunity then and there to make such designation. The special in

quiry officer shall then specify and state for the record the country, or countries in the alternate, to which respondent's deportation will be directed pursuant to section 243(a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a country. The respondent shall be advised that pursuant to section 243(h) of the Act he may apply for temporary withholding of deporation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. The application shall consist of respondent's statement setting forth the reasons in support of his request. The respondent shall be examined under oath on his application and may present such pertinent evidence or information as he has readily available. The respondent has the burden of satisfying the special inquiry officer that he would be subject to persecution on account of race, religion, or political opinion as claimed. The trial attorney may also present evidence or information for the record, and he may submit information not of record to be considered by the special inquiry officer provided that the special inquiry officer or the Board has determined that such information is relevant and is classified under Executive Order No. 12065 (43 FR 28949, July 3, 1978) as requiring protection from unauthorized disclosure in the interest of national security. When the special inquiry officer receives such non-record information he shall inform the respondent thereof and shall also inform him whether it concerns conditions generally in a specified country or the respondent himself. Whenever he believes he can do so consistently with safeguarding both the information and its source, the special inquiry officer should state more specifically the general nature of the information in order that the respondent may have an opportunity to offer opposing evidence. A decision based in whole or in part on such classified information shall state that such information is material to the decision.

(d) General. An application under this section shall be made only during the hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability. The respondent shall have the burden of establishing that he is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. The respondent shall not be required to pay a fee on more than one application within paragraphs (a) and (c) of this section, provided that the minimum fee imposed when more than one application is made shall be determined by the cost of the application with the highest fee. Nothing contained herein is intended to foreclose the respondent from applying for any benefit or privilege which he believes himself eligible to receive in proceedings under this part.

(Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223), sec. 103 of the Immigration and Nationality Act (8 U.S.C. 1103). Interpret or apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182, 1252 and 1255))

[26 FR 12112, Dec. 19, 1961, as amended at 34 FR 13921, Aug. 30, 1969; 39 FR 25642, July 12, 1974; 39 FR 43055, Dec. 10, 1974; 43 FR 18644, May 2, 1978; 45 FR 41393, June 19, 1980]

§ 242.18 Decision of special inquiry offi

cer.

(a) Contents. The decision of the special inquiry officer may be oral or written. Except when deportability is determined on the pleadings pursuant to § 242.16(b), the decision of the special inquiry officer shall include a discussion of the evidence and findings as to deportability. The formal enumeration of findings is not required. The decision shall also contain a discussion of the evidence pertinent to any application made by the respondent under § 242.17 and the reasons for granting or denying the request. The decision shall be concluded with the order of the special inquiry officer.

(b) Summary decision. Notwithstanding the provisions of paragraph (a) of this section, in any case where deportability is determined on the pleadings pursuant to § 242.16(b) and the respondent does not make an ap

plication under § 242.17, or the respondent applies for voluntary departure only and the special inquiry officer grants the application, the special inquiry officer may enter a summary decision on Form I-38, if deportation is ordered, or on Form I-39, if voluntary departure is granted with an alternate order of deportation.

(c) Order of the special inquiry officer. The order of the special inquiry officer shall direct the respondent's deportation, or the termination of the proceedings, or such other disposition of the case as may be appropriate. When deportation is ordered, the special inquiry officer shall specify the country, or countries in the alternate, to which respondent's deportation shall be directed. The special inquiry officer is authorized to issue orders in the alternative or in combination as he may deem necessary.

[26 FR 12112, Dec. 19, 1961]

(a) Written decision. A written decision shall be served upon the respondent and the trial attorney, together with the notice referred to in § 3.3 of this chapter. Service by mail is complete upon mailing.

(b) Oral decision. An oral decision shall be stated by the special inquiry officer in the presence of the respondent and the trail attorney, if any, at the conclusion of the hearing. Unless appeal from the decision is waived, the respondent shall be furnished with Notice of Appeal, Form I-290A, and advised of the provisions of § 242.21. A typewritten copy of the oral decision shall be furnished at the request of the respondent or the trial attorney.

(c) Summary decision. When the special inquiry officer renders a summary decision as provided in

§ 242.18(b), he shall serve a copy thereof upon the respondent at the conclusion of the hearing. Unless appeal from the decision is waived, the respondent shall be furnished with Notice of Appeal, Form I-290A, and advised of the provisions of § 242.21.

[26 FR 12212, Dec. 19, 1961, as amended at 27 FR 9647, Sept. 29, 1962]

§ 242.20 Finality of order.

The order of the special inquiry officer shall be final except when the case is certified to the Board as provided in Part 3 of this chapter or an appeal is taken to the Board by the respondent or the trial attorney.

[27 FR 9647, Sept. 29, 1962]

§ 242.21 Appeals.

Pursuant to Part 3 of this chapter an appeal shall lie from a decision of a special inquiry officer under this part to the Board of Immigration Appeals. An appeal shall be taken within 10 days after the mailing of a written decision, or the stating of an oral decision, or the service of a summary decision on Form I-38 or Form I-39. The reasons for the appeal shall be stated briefly in the Notice of Appeal, Form I-290A; failure to do so may constitute a ground for dismissal of the appeal by the Board. When service of the decision is made by mail, as authorized by this section, 3 days shall be added to the period prescribed for the taking of an appeal.

[29 FR 7236, June 3, 1964]

§ 242.22 Reopening or reconsideration.

Except as otherwise provided in this section, a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter. The immigration judge may upon his/her own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any case in which he/she had made a decision, unless jurisdiction in the case is vested in the Board of Immigration Appeals under Part 3 of this chapter. An order by the immigration judge granting a motion to reopen may be made on Form I-328. A motion to reopen will not be granted unless the immigration judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing; nor will any motion to reopen for the purpose of providing the respondent with an opportunity to make an application under § 242.17 be granted if respondents's right to make such application was fully explained to him/her by the

immigration judge and he/she was afforded an opportunity to do so at the hearing, unless circumstances have arisen thereafter on the basis of which the request is being made. The filing of an application for adjustment of status under section 245 of the Act may be considered as a motion to reopen when the application shows new material not available or discoverable at the time of the deportation hearing. The filing of a motion under this section with an immigration judge shall not serve to stay the execution of an outstanding decision; execution shall proceed unless the immigration judge who has jurisdiction over the motion specifically grants a stay of deportation. The immigration judge may stay deportation pending his/her determination of the motion and also pending the taking and disposition of an appeal from such determination. [46 FR 25598, May 8, 1981]

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

(a) Order to show cause. In the case of an alien within the provisions of section 242(f) of the Act, the order to show cause shall charge him with deportability under section 242(f) of the Act. The prior order of deportation and evidence of the execution thereof, properly identified, shall constitute prima facie cause for deportability under this section.

(b) Applicable procedure. Except as otherwise provided in this section, proceedings under section 242(f) of the Act shall be conducted in general accordance with the rules prescribed in this part.

(c) Deportability. In determining the deportability of an alien alleged to be within the purview of paragraph (a) of this section, the issues shall be limited solely to a determination of the identity of the respondent, i.e., whether the respondent is in fact an alien who was previously deported, or who departed while an order of deportation was outstanding; whether the respondent was previously deported as a member of any of the classes described in paragraph (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), or (18) of section 241(a) of the Act; and whether respondent

has unlawfully reentered the United States.

(d) Order. If deportability as charged in the order to show cause is established, the special inquiry officer shall order that the respondent be deported under the previous order of deportation in accordance with section 242(f) of the Act.

(e) Trial attorney; additional charges. When a trial attorney is' assigned to a proceeding under this section and additional charges are lodged against the respondent, the provisions of paragraphs (c) and (d) of this section shall cease to apply.

[26 FR 12282, Dec. 28, 1961, as amended at 27 FR 9647, Sept. 29, 1962; 30 FR 2021, Feb. 13, 1965]

§ 243.1 Final order of deportation.

Except as otherwise required by section 242(c) of the Act for the specific purposes of that section, an order of deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under Part 242 of this chapter shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision.

§ 243.2 Warrant of deportation.

A warrant of deportation based upon the final administrative order of deportation in the alien's case shall be issued by a district director. The district director shall exercise the authority contained in section 243 of the Act to determine at whose expense the alien shall be deported and whether his mental or physical condition requires personal care and attendance en route to his destination.

§ 243.3 Expulsion.

Once an order of deportation becomes final, an alien, not in the physical custody of the Service, shall be given not less than 72 hours advance notice in writing of the time and place of his surrender for deportation. If the alien fails to surrender as directed, he shall be deported without further notice when located. When an alien is directd to surrender for deportation, he shall do so notwithstanding the filing of an application for a stay of deportation unless he has been informed prior to the surrender date that a stay has been granted. The advance notice requirement above does not preclude taking an alien into custody at any time, including any time within the 72 hour period, if his being at large constitutes a danger to public safety or security, or the district director has reason to believe the alien is likely to abscond, or if information is received that the alien is likely to abscond. However, in such an instance, the alien's deportation shall not be effected prior to the expiration of 72 hours from the time of apprehension or of the 72 hour notice period, whichever is less. An alien shall be taken into custody prior to the time specified in the surrender notice only pursuant to an order by an official empowered under § 242.2(a) of this chapter to issue warrants of arrest.

[41 FR 38758, Sept. 13, 1976] § 243.4 Stay of deportation.

Any request of an alien under a final administrative order of deportation for a stay of deportation, except a request for withholding of deportation pursuant to section 243(h) of the Act, shall be filed on Form I-246 with the district director having jurisdiction over the place where the alien is at

the time of filing. The district direc tor, in his discretion, may grant a stay of deportation for such time and under such conditions as he may deen appropriate. Written notice of the dis position of the alien's request shall b served upon him and any notice of denial shall include specific reason therefor; however, neither the making of the request nor the failure to re ceive notice of disposition of the re quest shall relieve the alien from strict compliance with any outstanding notice to surrender for deportation Denial by the district director of a re quest for a stay is not appealable but such denial shall not preclude the Board from granting a stay in connec tion with a motion to reopen or a motion to reconsider as provided in Part 3 of this chapter, nor such denial preclude the special inquiry officer, ir his discretion, from granting a stay in connection with, and pending his de termination of, a motion to reopen o a motion to reconsider a case falling within his jurisdiction pursuant to § 242.22 of this chapter, and also pending an appeal from such determination.

[40 FR 50702, Oct. 31, 1975]

§ 243.5 Self-deportation.

A district director may permit an alien ordered deported to depart at his own expense to a destination of his own choice. Any alien who has depart ed from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law, except that an alien who departed before the expiration of the voluntary departure time granted in connection with an alternate order of deportation shall not be considered to have been so deported.

[29 FR 6485, May 19, 1964]

§ 243.6 Notice to transportation line.

When a transportation line is responsible for the expenses of an alien's deportation, notification shall be made to such line on Form I-284, when ap plicable, and Form I-288. If special care and attention is required, notification to this effect shall be placed on Form I-288.