of fine proceedings, will be granted clearance papers if there be deposited with the collector of customs, prior to the time of sailing, a sum equal to the fine specified in the said notice, or, where permitted by the Act of May 26, 1924, a bond with sufficient surety approved by the collector of customs, as security for the payment of the fine in the event it should be imposed.** [23-B-2] 23.15 Notice of intention to fine in cases other than under §§ 23.13, 23.14; time for opposition; clearance of vessel. When the facts indicate that a fine should be imposed in cases other than those stated in §§ 23.13, 23.14, the immigration and naturalization officer in charge shall serve promptly upon the owner, charterer, agent, consignee, or master of the vessel a notice to the effect that the ascertained facts indicate that a fine should be imposed under the section of law involved in the particular case; that he will be allowed sixty days from the date of service of the notice within which to submit evidence and be heard in reference to the matter. In the meantime the vessel involved, which is the subject of fine proceedings, will be granted clearance papers if there be deposited with the collector of customs, prior to the time of sailing, a sum equal to the fine specified in the said notice, or, where permitted by the Immigration Act of 1924 (43 Stat. 153), a bond with sufficient surety approved by the collector of customs, as security for the payment of the fine in the event it should be imposed; also, in cases arising under section 9 of the Immigration Act of 1917, as amended by the Immigration Act of 1924 (43 Stat. 166; 8 U.S.C. 145), or under section 16 of the Immigration Act of 1924 (43 Stat. 163; 8 U.S.C. 216), an additional sum equal to that paid by the alien involved for his transportation to this country from the initial point of departure, such additional sum to be held by the collector of customs as a special deposit and to be delivered to the deported alien through the American consul, if fine is imposed. When such alien is accompanied by another alien who is excluded from admission, a further sum equal to that paid by such accompanying alien for his transportation to this country from the initial point of departure shall be deposited with the collector of customs and delivered to the accompanying alien when deportation is effected.** (Secs. 7, 14, 15, 18, 20, 35, 36, 39 Stat. 879 ff., 45 Stat. 1551; 8 U.S.C. 143, 150, 151, 154, 156, 169, 171) [23-B-3] 23.16 Notice of intention to fine; procedure. Notices prescribed in §§ 23.13-23.15 shall be prepared in quadruplicate. The original shall be served on the master, agent, owner, or consignee of the vessel by (a) delivering it to him in person, or (b) leaving it at his office, or (c) mailing it to him, whenever the immigration and naturalization officer in charge finds the other methods of service inconvenient. When service is made by delivery it shall be admitted in writing upon the duplicate and triplicate and the admission witnessed by the server. If admission be refused, or, in case of service by either of the other methods, the server shall note the method and date of service on the duplicate and triplicate. The duplicate shall be retained by the immigration and naturalization officer in charge. The triplicate shall be delivered to the collector of customs for the district wherein the Page 98 **For statutory and source citations, see note to § 23.1. port of arrival is located, who shall withhold clearance papers until deposit is made or bond furnished as required in §§ 23.13-23.15. The quadruplicate shall be forwarded to the Central Office when the matter of fine is presented for departmental consideration.*+ [23-B-4] 23.17 Submission of evidence and report. If deposit be made, or bond furnished as provided by §§ 23.13-23.15, further proceedings shall be suspended during said period of 60 days, or until earlier submission of evidence to show why the proposed fine should not be imposed. Such evidence, if submitted, shall be forwarded to the Central Office, together with the medical certificate, if any, quadruplicate notice, and the data or evidence on which the notice was based, and the officer in charge shall present at the same time his written views as to whether the fine should be imposed. If within 60 days no evidence has been submitted, or as soon as it is known that the fine will not be contested, the officer in charge shall report the facts to the Central Office.** [23-C-1] 23.18 Mitigation or remission of fines; mentally afflicted or diseased alien seamen. The fine prescribed by section 35 of the Immigration Act of 1917 (39 Stat. 896; 8 U.S.C. 169), for bringing to United States ports as employees of vessels aliens afflicted with idiocy, imbecility, insanity, epilepsy, tuberculosis in any form, or a loathsome contagious or dangerous contagious disease will be mitigated or remitted by the Department only upon a clear and convincing showing to the effect that the imposition of the full penalty or of any part thereof would be unjust or inequitable under the circumstances of the particular case, including the submission of satisfactory evidence that the seamen were subjected to a competent medical examination before being signed on as members of the crew.*+ [23-D-1] 23.19 Action on decision. Upon receipt of the departmental decision the collector of customs shall be notified of its terms. If the fine is imposed, the amount retained as security shall be disposed of by the collector in accordance with law. If the fine is not imposed, he shall return such amount to the depositor.*t (Secs. 7, 14, 15, 18, 20, 35, 36, 39 Stat. 879 ff., secs. 16, 20, 26, 43 Stat. 163, 164, 166, sec. 1 (e), 45 Stat. 1551; 8 U.S.C. 143, 145, 150, 151, 154, 156, 167, 169, 171, 216) [23–E-1] Sec. PART 24-SUBPENAING WITNESSES Sec. 24.1 Subpena; authority for; when ex- 24.3 Expenses of subpenaed witnesses; ercised. reports. 24.2 Issuance and service of subpena; invoking aid of court; report. Section 24.1 Subpena; authority for; when exercised. District commissioners and inspectors in charge are authorized to subpena witnesses and require the production of books, papers, and documents touching the right of any alien to enter, re-enter, reside in, or pass through the United States, and to that end they may invoke the aid of any court of the United States. The power to issue subpenas **For statutory and source citations, see note to § 23.1. Page 99 should be exercised only when absolutely necessary. Whenever an inspector conducting an investigation or a board of special inquiry holding a hearing has reason to believe that a certain witness whose testimony is deemed essential to a proper decision of the case will not appear and testify or produce books, papers, and documents unless commanded to do so, such inspector or the chairman of such board shall request the commissioner or inspector in charge to issue a subpena and have it served upon such witness. If an alien or his authorized representative requests that a witness be subpenaed, he shall be required, as a condition precedent to the granting of the request, to state in writing what he expects to prove by such witness or the books, papers, and documents indicated by him and to show affirmatively that the proposed evidence is relevant and material and that he has made diligent efforts without success to produce the same. The examination of the witness or of the books, papers, and documents produced by him shall be limited to the purpose specified in such written statement of the alien or his authorized representative. When a witness has been examined by the investigating officer and counsel has not had an opportunity to cross-examine such witness and it is apparent or is shown that such witness will not appear for cross-examination unless commanded to do so, a subpena shall issue. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U.S.C. 102, 222: interprets sec. 16, 39 Stat. 885; 8 U.S.C. 152) [24-A-1, Im. R. & Regs., ed. of Dec. 31, 1936] 24.2 Issuance and service of subpena; invoking aid of court; report. Upon determining that a witness whose evidence is desired either by the Government or the alien will not appear and testify or produce written evidence unless commanded to do so, the district commissioner or inspector in charge shall issue a subpena and have it served upon the witness by an immigration officer or employee, in conformity with this part, due record of such service to be made. If the witness neglects or refuses to respond to the subpena, the United States attorney of the proper district shall be requested so to report to the appropriate district court, and move that an order be issued requiring the witness to appear or to produce written evidence, as provided by section 16 of Immigration Act of 1917 (39 Stat. 885; 8 U.S.C. 152), or for action as therein specified in the event of continued neglect or refusal. District commissioners or inspectors in charge shall submit promptly to the Central Office a report of each subpena issued under the terms of this part. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U.S.C. 102, 222) [24-B-1, C-2, Im. R. & Regs., edition of Dec. 31, 1936] 24.3 Expenses of subpenaed witnesses; reports. If a witness subpenaed at the request of the alien or his representative demands that he be recompensed for time lost from his employment, arrangements therefor must be made by the alien or his representative as a condition precedent to the issuance of the subpena. If a subpena is issued under authority of section 16 of the Immigration Act of 1917 (39 Stat. 885; 8 U.S.C. 152), at the request of an inspector or the chairman of a board, mileage and fees may be paid at rates not to Page 100 exceed those usually allowed by the United States district court for the district in which the testimony is taken. Where the total amount of mileage and fees exceeds $25, specific authority must be obtained in advance from the Central Office. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U.S.C. 102, 222) [24-C-1, Im. R. & Regs., ed. of Dec. 31, 1936] Sec. PART 25 FORMAL PETITIONS AND APPLICATIONS Sec. 25.1 Petition for nonquota or prefer- 25.9 ence quota immigration visa; requirements. 25.10 Permit to re-enter; emergent cases; manner of delivery. Permit to re-enter; procedure for extension; period of extension. 25.2 Nonquota or preference quota 25.12 Temporary stay in United States; 25.15 Formal petitions and applica- Section 25.1 Petition for nonquota or preference quota immigration visa; requirements. Any citizen of the United States claiming that any immigrant is his relative and properly admissible to the United States as a nonquota immigrant, or that any immigrant is entitled to preference in the issuance of an immigration visa, shall, in order to establish such nonquota or preference status for such immigrant, file with the Commissioner of Immigration and Naturalization a typewritten petition in duplicate (Form 633), alleging under oath (a) petitioner's name and address; (b) if a citizen by birth, date and place of birth; (c) if a naturalized citizen, date and place of admission to citizenship, name of court admitting him, and the number of the certificate of naturalization, if any; (d) name and address of petitioner's employer, length of time employed, nature and character of business or occupation, where located and net annual income derived therefrom; (e) if sole owner of unencumbered real estate, place located, and value; (f) petitioner's net worth; (g) degree of the relationship of the immigrant for whom petition is made, date and place of birth of such immigrant, and, if for a wife or husband, when, where, and by whom married; and (h) names of all the places where such immigrant has resided prior to and at the time when petition is filed: Provided, That where the petitioner alleges citizenship by birth a duly authenticated birth certificate or other documentary evidence showing birth in the United States shall be filed with the petition: Provided further, That where it is alleged that petitioner acquired citizenship through naturalization prior to the 27th day of September 1906, or in cases where Page 101 naturalization has occurred within 90 days preceding the filing of the petition, certificate of naturalization shall be filed with the petition, and when a woman petitioner alleges citizenship through the naturalization of her husband prior to the marriage, a duly authenticated certificate of marriage or other documentary evidence showing when and where such marriage took place shall be filed with the petition: And provided further, That if the petitioner claims to have derived citizenship through his parent's naturalization or resumption of citizenship prior to 12 noon, E. S. T., May 24, 1934, documentary evidence of such naturalization or resumption during the petitioner's minority and of his entry into the United States prior to attaining majority shall be filed; and if petitioner claims that such citizenship was so derived after 12 noon, E. S. T., May 24, 1934, documentary evidence of facts bringing the case within section 2 of General Order 211, of August 2, 1934, shall be filed.** (Sec. 9, 43 Stat. 157; 8 U.S.C. 209) [25-A-1] *88 25.1 to 25.15, inclusive, issued under the authority contained in sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U.S.C. 102, 222. Statutes interpreted or applied and statutes giving special authority are listed in parentheses at the end of specific sections. †The source of §§ 25.1 to 25.15, inclusive, (except for amendments and supplemental documents noted in the text,) is Immigration rules and regulations, I&NS, Jan. 1, 1930, edition of Dec. 31, 1936. 25.2 Nonquota or preference quota status; date of establishment; alteration of status. The nonquota status of alien wives, husbands and children of American citizens, under section 4 (a), or the preferential status of husbands and parents under section 6 (a) (1) (A) of the Immigration Act of 1924, as amended (47 Stat. 656; 8 Ú.S.C. 204 (a), 206 (a)), will be established as of the date when a properly executed petition of the citizen is filed with the Immigration and Naturalization Service, except that when a petition for a preference status is approved while the beneficiary is in the United States, the priority to be accorded the alien will be adjusted at the time of his application for a visa to accord with the date of his departure from the United States, as determined by the consular officer. In all cases, however, nonquota or preference quota, the issuance of a visa will be withheld and approval of the petition may be revoked if it is ascertained that the petitioner has since lost his American citizenship, has died, or has become divorced from the beneficiary wife or husband; or, in the case of a child, if application for the visa is not made before reaching the age of 22 years, or if he has become married. In such cases report will be made by the consular officer in order that the Department may reconsider the approval theretofore granted.* (Secs. 4, 6, 43 Stat. 155, sec. 3, 45 Stat. 1009, secs. 1, 2, 47 Stat. 656; 8 U.S.C. 204, 206) [G.Ó. 56, 1st amdt., Dec. 23, 1933, as amended by G.O. 257, Jan. 26, 1938, 3 F.R. 224] 25.3 Permit to re-enter; application. Any alien previously lawfully admitted to the United States for permanent residence who is about to depart temporarily therefrom, and who desires a permit to re-enter, may, not less than 30 days prior to his departure from the United States, file an application (Form 631) which must be typewritten or printed in ink, stating under oath (a) name now used; Page 102 *For statutory citation, see note to § 25.1. |