by records, such as Service records subsequent to June 15, 1952, records of the Guamanian Inmigration Service, records of the Navy or Air Force, or records of contractors of those agencies; that he was not excludable under the act of February 5, 1917, as amended; and that he continued to reside in Guam until December 24, 1952, and thereafter has not been admitted or readmitted into Guam as a nonimmigrant: Provided, That the provisions of this subparagraph shall not apply to an alien who was exempted from the contract laborer provisions of section 3 of the Immigration Act of February 5, 1917, as amended, through the exercise, expressly or impliedly, of the 4th or 9th provisos to section 3 of the said act.

(2) An alien residing in Guam who establishes that he was previously lawfully admitted for permanent residence at a continental port of the United States, that a record of such admission exists, and that he has not abandoned the status of resident of the United States.

§ 4.3 Applicability of travel restrictions imposed by section 212 (d) (7) of the Immigration and Nationality Act. Nothing in this part shall be construed as exempting any person or class of persons enumerated herein from the application of section 212 (d) (7) of the Immigration and Nationality Act.

the Immigration and Nationality Act shall apply to a certificate of naturalization, certificate of repatriation, certificate of citizenship, certificate of derivative citizenship, certificate of lawful entry or certificate of registry issued prior to December 24, 1952, special certificate of naturalization for recognition by a foreign state, copies of such certificates, documents, or records, exception from the classification of alien enemy, and certifications of the records of the Service made or issued under section 341 (e) or 342 (b) (8) of the Nationality Act of 1940, or section 343 (e) or 344 (b) (6) of the Immigration and Nationality Act.

§ 5.11 Report and notice. Except as otherwise provided in this chapter, whenever it shall appear that any certificate, document, or record referred to in § 5.1 was illegally or fraudulently obtained from, or was created through illegality or by fraud practiced upon, the issuing officer, a complete report shall be submitted to the district director having administrative jurisdiction over the subject's last known place of residence in the United States. If the district director is satisfied that a prima facie showing has been made that such certificate, document, or record was obtained or granted through illegality or fraud, he shall cause to be served a written notice on the person to whom the certificate or document was issued or in whose behalf the record was furnished at such person's last known address. The notice shall inform such person of intention to cancel the certificate, document, or record, and the grounds upon which it is intended to base such cancellation. The notice shall also inform the person to whom it is addressed that he may submit, within 60 days from the date of service of the notice, an answer in writing under oath, setting forth reasons why such certificate, document, or record should not be cancelled. The notice shall also advise the person to whom it is addressed that he may, within such period and upon his request have an opportunity to appear in person, in support or in lieu of his written answer, before such immigration officer as may be designated for that purpose. The person to whom the notice is addressed shall further be advised therein that he may have the assistance of counsel, without expense to the government of the United States, in the preparation of his answer or in connection with such personal appearance, and shall have opportunity to

examine, at the appropriate office of the Service, the evidence upon which it is proposed to base such cancellation.

§ 5.12 Failure to answer; admission of allegations. If the person served with notice under § 5.11 fails to file a written answer within the time allowed therefor, or if the answer admits the allegations in the notice irrespective of whether a personal appearance is requested, the district director shall cancel the certificate, document, or record. No appeal shall lie from such cancellation.

§ 5.13 Answer filed; personal appearance; notice. Upon receipt of an answer asserting a defense to the allegations in a notice served pursuant to § 5.11, the district director shall designate an officer of the Service to consider and, if a request for a personal appearance was made, to interview the party affected. If a personal appearance was requested, such officer shall notify the subject of the time, date and place, to appear for interview and of the subject's right to be represented by counsel or representative at no expense to the Government. At the conclusion of the interview, the subject or his attorney or representative shall be given a reasonable time not to exceed 10 days for the submission of briefs. The officer shall, after consideration of the case if no personal appearance was requested, or after completion of the interview and the consideration of any brief submitted, prepare a report summarizing the evidence and containing his findings and recommendation. The report shall be forwarded to the district director, with the record in the case. If the district director finds that the certificate, document, or record was not obtained through illegality or fraud, he shall order the matter terminated, and the subject shall be so notified. If the district director finds that the certificate, document, or record was obtained or created through illegality or fraud, he shall order that it be cancelled ab initio. Notice of such action and the reasons therefor shall be given to the subject or his attorney or representative, and the subject shall be informed of his right to appeal within 10 days from the receipt of such notification in accordance with Part 7 of this chapter.

§ 5.14 Surrender of documents. Upon the cancellation of any document under this part, the subject shall be re

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quested by the district director, in writing, to surrender the document to the district director.

Part 6-Board of Immigration Appeals: Appeals; Reopening and Reconsideration

Sec.

6.1

6.2

6.11

6.12

6.13

6.14

6.15

6.16 6.21

Board of Immigration Appeals. Reopening or reconsideration. Notice of appeal.

Withdrawal of appeal.

Forwarding of record on appeal.

Stay of execution of decision.

Notice of certification.

Fees.

Motion to reopen or motion to reconsider.

AUTHORITY: §§ 6.1 to 6.21 issued under sec. 103, 66 Stat. 173; 8 U. S. C. 1103.

SOURCE: §§ 6.1 to 6.21 appear at 22 F. R. 9771, Dec. 6, 1957.

§ 6.1 Board of Immigration Appeals— (a) Organization. There shall be in the office of the Attorney General a Board of Immigration Appeals. It shall be under the supervision and direction of the Attorney General and shall be responsible solely to him. The Board shall consist of a chairman and four other members and shall have attached to it an executive assistant-chief examiner who shall have authority to act as an alternate member. It shall also have attached to it such number of attorneys and other employees as the Attorney General upon recommendation of the Board, shall from time to time direct. In the absence of the chairman, a member designated by him shall act as chairman.

(b) Appellate jurisdiction. Appeals shall lie to the Board of Immigration Appeals from the following:

(1) Decisions of special inquiry officers in exclusion cases, as provided in Part 236 of this chapter;

(2) Decisions of special inquiry officers in deportation cases, as provided in Part 242 of this chapter;

(3) Decisions of district directors on applications for the advance exercise of the discretionary authority contained in section 212 (e) of the Immigration and Nationality Act, as provided in Part 212 of this chapter;

(4) Decisions of district directors involving administrative fines and penalties, including mitigation thereof, as provided in Part 280 of this chapter;

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(5) Decisions or district directors on petitions filed in accordance with section 205 of the Immigration and Nationality Act or decisions revoking the approval of such petitions in accordance with section 206 of the Immigration and Nationality Act, as provided in Parts 205 and 206, respectively, of this chapter;

(6) Decisions of district directors or the Assistant Commissioner, Examinations Division, on applications for the advance exercise of the discretionary authority contained in section 212 (d) (3) of the Immigration and Nationality Act, as provided in Part 212 of this chapter;

(7) Determinations of regional commissioners or district directors relating to bond, parole, or detention of an alien as provided in Part 242 of this chapter.

(c) Jurisdiction by certification. The Commissioner, an assistant commissioner, a regional commissioner, or the Board may in any case arising under paragraph (b) (1) through (6) of this section require certification of such case to the Board.

(d) Powers of the Board-(1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case, except that the Board shall have no authority to consider or determine the manner, at whose expense, or to which country an alien shall be deported.

(2) Finality of decision. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. The Board may return a case to the Service for such further action as may be appropriate to the case, without entering a final decision on its merits.

(3) Admission to practice. The Board shall have authority, with the approval of the Attorney General, to promulgate rules of practice governing the proceedings before it, and to determine the admission, conduct, and disbarment, of attorneys, representatives, and other persons authorized to practice before the Board or the Service.

(e) Oral argument. Oral argument shall be heard by the Board upon re

quest, in any case over which the Board acquires jurisdiction by appeal or certification as provided in this part. If an appeal has been taken, request for oral argument if desired shall be included in the Notice of Appeal. The Board shall have authority to fix any date or change any date upon which oral argument is to be heard. The Service may be represented in argument before the Board by any officer designated by the Commissioner. The Board shall convene for the purpose of hearing oral argument at its offices in Washington, D. C., at 2:00 p. m. or such other time as it may designate on every day except Saturdays, Sundays, and legal holidays.

(f) Service of Board decisions. The decision of the Board shall be in writing and copies shall be transmitted by the Board to the Service and a copy served upon the alien or party affected as provided in §§ 292.11 and 292.12 of this chapter.

(g) Board's decisions as precedents. Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service in the administration of the Immigration and Nationality Act, and selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.

(h) Referral of cases to the Attorney General. (1) The Board shall refer to the Attorney General for review of its decision all cases which:

(i) The Attorney General directs the Board to refer to him.

(ii) The chairman or a majority of the Board believes should be referred to the Attorney General for review.

(iii) The Commissioner or an assistant commissioner requests be referred to the Attorney General for review.

(2) In any case in which the Attorney General shall review the decision of the Board, his decision shall be stated in writing and shall be transmitted to the Board for transmittal and service as provided in paragraph (f) of this section.

§ 6.2 Reopening or reconsideration. Reconsideration or reopening of any case in which a decision has been made by the Board, whether requested by the Commissioner, an assistant commissioner, a regional commissioner, or by

the party affected by the decision, shall be only upon written motion to the Board. A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure of such person from the United States occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. For the purpose of this section, any final decision made by the Commissioner prior to the effective date of the Immigration and Nationality Act and of this chapter with respect to any case within the classes of cases enumerated in § 6.1 (b) (1), (2), (3), (4), and (5) shall be regarded as a decision by the Board.

§ 6.11 Notice of appeal. A party affected by a decision who is entitled under this chapter to appeal to the Board shall be given notice of his right to appeal. An appeal is taken by filing Notice of Appeal, Form I-290A, in triplicate, with the district director having administrative jurisdiction over the case, within the time specified in the governing sections of this chapter. The regional commissioner, district director, or the Board, in their discretion, for good cause shown, may extend the time within which to submit a brief in support of such appeal. The certification of a case as provided in this part shall not relieve the party affected from compliance with the provisions of this section in the event he is entitled, and desires, to appeal from an initial decision, nor shall it serve to extend the time specified in the applicable parts of this chapter for the taking of an appeal. Departure from the United States of a person under deportation proceedings, prior to the taking of an appeal from a decision in his case, shall constitute a waiver of his right to appeal.

§ 6.12 Withdrawal of appeal. In any case in which an appeal has been taken, the party taking the appeal may file a written withdrawal of such appeal with the officer with whom the notice of appeal was filed. If the record in the case has not been forwarded to the Board on appeal in accordance with § 6.13 the decision made in the case shall be final to the same extent as though no appeal had been taken. If the record has been forwarded on appeal, the withdrawal of the appeal shall be forwarded to the Board and, if no decision in the case has been

made on the appeal, the record shall be returned and the initial decision shall be final to the same extent as though no appeal had been taken. If a decision on the appeal was made by the Board in the case, further action shall be taken in accordance therewith. Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

§ 6.13 Forwarding of record on appeal. If an appeal is taken from a decision, as provided in this chapter, the entire record of the proceeding shall be forwarded to the Board by the district director having administrative jurisdiction over the case upon timely receipt of the brief in support of the appeal, or upon expiration of the time allowed for the submission of the brief.

§ 6.14 Stay of execution of decision. The decision in any proceeding under this chapter from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such decision be executed while an appeal is pending or while a case is before the Board by way of certification.

§ 6.15 Notice of certification. Whenever in accordance with the provisions of § 6.1 (c) a case is required to be certified to the Board, the alien or other party affected shall be given notice of certification. A case shall not be certified until an initial decision has been made and no appeal has been taken. If it is known at the time of making the initial decision that the case will be certified, the notice of certification shall be included in such decision and no further notice of certification shall be required. If it is not known until after the initial decision was made that the case will be certified, the district director having administrative jurisdiction over the case shall cause a Notice of Certification (Form I-290C) to be served upon the party affected. In either case the notice shall inform the party affected that the case is required to be certified to the Board and of the right to make representation before the Board, including oral argument and submission of brief, if desired. The brief shall be submitted

to such district director for transmittal to the Board within 10 days from receipt of the notice of certification, unless for good cause shown the district director or the Board extends the time within which the brief may be submitted. The party affected may waive the submission of such brief. The case shall be certified and forwarded to the Board by the district director upon receipt of the brief, or the expiration of the time within which the brief may be submitted, or upon receipt of a written waiver of the right to submit a brief.

§ 6.16 Fees. Except as otherwise provided in this section, a notice of appeal or a motion filed under this part by any person other than an officer of the Service shall be accompanied by a fee specified by, and remitted in accordance with, the provisions of Part 2 of this chapter. In any case in which an alien or other party affected is unable to pay the fee for an appeal or a motion, he shall file with the notice of appeal or the motion his affidavit stating the nature of the motion or appeal, the affiant's belief that he is entitled to redress, his inability to pay the required fee, and request permission to prosecute the appeal or motion without prepayment of such fee. If such an affidavit is filed with the officer of the Service from whose decision the appeal is taken or with respect to whose decision the motion is addressed, he shall, if he believes that the appeal or motion is not taken or made in good faith, certify in writing his reasons for such belief for consideration by the Board. The Board may, in its discretion, authorize the prosecution of any appeal or motion without prepayment of fee.

§ 6.21 Motion to reopen or motion to reconsider―(a) Form. Motions to reopen and motions to reconsider shall be submitted in triplicate. A request for oral argument if desired shall be incorporated in the motion. The Board in its discretion may grant or deny oral argument. Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material. Motions to reconsider shall state the reasons for reconsideration and shall be supported by such precedent decisions as are pertinent. In any case in which a deportation order is in effect, there shall be included in the motion to reopen or reconsider that order a

statement by or on behalf of the moving party declaring whether or not the subject of the deportation order is also the subject of any pending criminal proceeding under section 242 (e) of the Immigration and Nationality Act and, if so, the current status of that proceeding. If the motion to reopen or reconsider is for the purpose of seeking discretionary relief, there shall be included in the motion a statement by or on behalf of the moving party declaring whether or not the alien for whose relief the motion is filed is subject to any pending criminal prosecution and, if so, the nature and current status of that prosecution. The filing of a motion to reopen or a motion to reconsider shall not serve to stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board or the district director having administrative jurisdiction over the case.

(b) Distribution of motion papers when alien is moving party. In any case in which a motion to reopen or a motion to reconsider is made by the alien or other party affected, the three copies of the motion papers shall be submitted to the district director having administrative jurisdiction over the place where the proceedings were conducted, who shall retain one copy, forward one copy to the officer of the Service who made the initial decision in the case, and submit the third copy with the case to the Board.

(c) Distribution of motion papers when the Commissioner, an assistant commissioner, or a regional commissioner is the moving party. Whenever a motion to reopen or a motion to reconsider is made by the Commissioner, an assistant commissioner, or a regional commissioner, he shall cause one copy of the motion to be served upon the alien or party affected, as provided in §§ 292.11 and 292.12 of this chapter, and shall cause the record in the case and one copy of the motion to be filed directly with the Board, together with proof of service upon the alien or other party affected. Such alien or party shall have a period of ten days from the date of service upon him of the motion within which to submit a brief in opposition to the motion. Two copies of such brief shall be filed directly with the Board and one copy directly with the Commissioner. The submission of such brief may be waived. The Board, in its discretion, for