Chapter 03 - Immigration Board of American Samoa
Chapter 03 - Immigration Board of American Samoa
The immigration board of American Samoa has its authority from 41.0203 to 41.0205 ASCA. The members of the boardsha11 elect one of its members as chairman annually in March. Rules created by the board are made pursuant to authority granted at 41.0205 (7), (8), (9), (11) and (12) ASCA, and other sections of the Act as noted below. The board hereby delegates to the Attorney General the authority to investigate any matter pertaining to enforcement of the Act. 41.0205 (4) ASCA.
The board hereby delegates all of its administrative duties to the Attorney General and such immigration officers of American Samoa as he/she deems necessary.
An appeal shall lie to the board from the following:
(1) a decision by the Attorney General or his/her delegate in exclusion cases;
(2) a decision by the Attorney General or his/her delegate in deportation cases, except that no appeal shall lie from an order of the Attorney General or his delegate granting voluntary departure within a period of at least 10 days, if the sole grant of appeal is that a greater period of departure time should have been fixed;
(3) a decision on application for entrance to American Samoa under numerical limitation contained in 41.0301 and 41.0303 ASCA;
(4) a determination relating to bond, parole or detentions of an alien;
(5) a decision of adjustment of status cases;
(6) a decision by the Attorney General or his/her delegate concerning sponsorship and employment of aliens pursuant to 41.0408 and 41.0409 ASCA.
The board shall have original jurisdiction in the following matters:
(1) an application by a person born outside of American Samoa but one of whose parents was born in American Samoa of Samoan ancestry pursuant to 41.0202(c) (ii) ASCA;
(2) an application by a person other than an American Samoan desiring permanent resident status pursuant to 41.0404 ASCA;
(3) an application by a permanent resident other than an American Samoan to reside outside of American Samoa in excess of 6 months;
(4) a decision of whether a permanent resident other than an American Samoan is to lose his/her status as a permanent resident pursuant to 41.0405 ASCA;
(5) an application by certain adopted children pursuant to 41.0406(b) ASCA;
(6) conducting hearings on petition of the Attorney General or his delegate against an employer allegedly employing an alien illegally or against an alien allegedly employed illegally pursuant to 41.0409(c) ASCA.
Notwithstanding the provisions of 41.0308 of this chapter, the board may deny oral argument concerning, and summarily dismiss any appeal in any deportation or exclusion proceeding in any case in which:
(1) the party concerned fails to specify the reason for the appeal;
(2) the only reason specified by the party concerned tor his/her appeal involves a finding of fact or a conclusion of law which was conceded by the party at the hearing;
(3) the appeal is from an order that granted the party concerned the relief which he requested;
(4) the board is satisfied from a view of the record that the appeal is frivolous filed solely for purpose of delay.
The decisions of the board shall be final except in those cases that the board may return a case to the Attorney General for such action as may be appropriate without entering a final decision on the merits of the case.
(a) The board hereby permits attorneys admitted to the High Court of American Samoa to appear before it. Law students, law graduates, legal practitioners and reputable individuals of good moral character may appear on an individual case basis at the request of the person entitled to representation, if he/she is appearing without direct or indirect remuneration and files a written declaration to that effect and if the board approves his/her appearance.
(b) The following shall be grounds for not permitting attorneys and others to appear before the board, although the following categories do not establish the exclusive grounds for suspension or disbarment in the public interest:
(1) any attorney who has been disbarred or under an order of suspension of the highest court of any state, possession, territory , commonwealth, or the District of Columbia or in any other way is restricted in the practice of law; and any person
(2) who, with intent to defraud or deceive, bribes, attempts to bribe, coerces, or attempts to coerce, by any means whatsoever, any person, including a party to a case, or an officer or employee of the Office of the Attorney General or the board, to commit an act or to refrain from performing an act in connection with any case;
(3) who willfully misleads, misinforms, or deceives an officer or an employee of the Office of the Attorney General or the board concerning any material and relevant fact in connection with a case;
(4) who willfully deceives, misleads threatens any party to a case concerning any matter relating to the case;
(5) who solicits practice in any unethical or unprofessional manner including, but not limited to, the use of runners, or advertising his/her availability to handle immigration matters;
(6) who represents, as an associate, any person who, known to him/her, solicits practice in any ethical or unprofessional manner, including but not limited to, the use of runners, or advertising his/her availability to handle immigration matters;
(7) who, by use of name, personal apparance, or any device, aids and abets any person to practice during the period of his/her suspension or disbarment, such suspension or disbarment being known to him/her:
(8) who willfully make false statements or representations to his/her qualifications or represent others in any case;
(9) who charges or receives either directly or indirectly, any fee or compensation for services which may be deemed to be grossly excessive in relation to the services performed, or any non-attorney who charges or receives either directly or indirectly any fee or compensation for services rendered to any person, except that an accredited representative of an organization may be regularly compensated by the organization of which he/she is an accredited representative;
(10) who engages in contumelious or otherwise obnoxious conduct with respect to a case in which he/she acts in a representative capacity, which in the opinion of the board would constitute cause tor suspension or disbarment if the case pending before a court, or which, in. such a judicial proceeding would constitute a contempt of court:
(11) who, having been furnished with a copy of any portion of the record in a case, willfully fails to surrender such copy upon final disposition of the case or upon demand, or willfully and without authorization makes and retains a copy of the material furnished ;
(12) who has been convicted of a felony, or, having been convicted of any crime is sentenced to imprisonment for a term of more than one year;
(13) who has falsely certified a copy of the document as being a true and complete copy of an original.
Oral argument shall be heard by the board, upon request, in any case over which the board acquires jurisdiction by appeal as provided in these rules. If an appeal has been taken, request for oral argument, if desired, shall be included in the notice of appeal. The board shall have the authority to fix any date or change any date upon which oral argument is to be heard. The Attorney General or the immigration office may be represented in argument before the board by an officer of the Attorney General or the immigration office.
The decision of the board shall be in writing and copies thereof shall be transmitted by the board to the immigration office, the Attorney General, and a copy shall be served upon the alien or party affected by the decision and the legal representative of the alien or party affected.
Accept as may be modified or overruled by the board or a court, decisions of the board shall be binding on the immigration office in the administration of the Act, and selected decisions designated by the board shall serve as precedents in all proceedings involving the same issue or issues.
(a) The board shall refer to the Attorney General for review of its decision all cases which:
(1) the Attorney General directs the board to refer to him/her;
(2) the chair or the majority of the board believes should be referred to the Attorney General for review.
(b) In any case which the Attorney General reviews the decision of the board, the decision of the Attorney General shall be stated in writing and shall be transmitted to the board for transmittal and service as provided in 41.0309 of this chapter .
The board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which a decision has been made by the board, whether requested by the Attorney General or any other duly authorized officer of the Attorney General's office, or by the party affected by the decision, shall be only upon written motion to the board. Motions to reopen in deportation proceedings shall not be granted unless it appears to the board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the formal hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefor was afforded him or her at the formal hearing unless relief is sought on the basis of circumstances which has arisen subsequent to the hearing. A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is a subject of deportation proceedings subsequent to his departure from American Samoa. Any departure from American Samoa of a person who is the subject of deportation proceedings occurring after the making of the motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.
(a) A party affected by a decision who is entitled under this chapter to appeal to the board shall be given notice of his/her right to appeal. An appeal shall be taken by filing notice of appeal with the immigration office within the time specified in the governing sections of this chapter. Certification of a case as provided in this rule shall not relieve the party affected from compliance with provision of this section in the event that he/she 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 American Samoa of a person under deportation proceedings prior to the taking of an appeal from a decision in his/her case shall constitute a waiver of his/her right to appeal.
(b) Fees. Except as otherwise provided in this section, a notice of appeal or a motion filed under this rule by any person other than the Attorney General or the immigration office shall be accompanied by the appropriate fee specified by and remitted, in accordance with, the provisions of 41.0319 of this chapter. In any case in which an alien or other party affected is unable to pay the fee fixed for an appeal or a motion, he/she shall file with a notice of appeal or the motion his/her affidavit stating the nature of the motion or appeal, the belief that he/she is entitled to redress, and his/her ability to pay the required fee, and shall request permission to prosecute the appeal or motion without prepayment of such fee. When such an affidavit is filed with the immigration office an officer shall, if he/she believes that the appeal or motion is not taken or made in good faith, certify in writing his/her reasons for such belief for consideration. The board may, in its discretion, authorize the prosecution of any appeal or motion without prepayment of fee.
(c) Briefs. Briefs in support of or in opposition to an appeal shall be filed in with the office within the time fixed for an appeal or within any other additional period designated by the board. The board for good cause may extend the time for filing a brief or reply brief. The board in its discretion may authorize the filing of a brief directly with it in which event the opposing party shall be allowed a specified time to respond.
In any case in which an appeal has been taken, the party taking the appeal may file a written withdrawal thereof with the office. The withdrawal of an appeal shall result in the initial decision being final to the same extent as though no appeal had been taken. Departure from American Samoa of the person who is the subject to deportation proceedings subsequent to 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 ex tent as though no appeal had been taken.
All regular meetings and hearings of the board shall be held in the immigration office unless otherwise announced each Friday as needed at 9: 00 a.m. Such other meetings and hearings as are necessary for the efficient conduct of its business may be held at such times and places as determined by the chair.
A chairperson shall be elected by the board on the first Friday of March each year .
The board shall recommend to the Governor the need for a replacement for any member who misses 3 consecutive meetings without cause. Cause shall include health and off-island business trips.
(a) Denials and Appeals. Whenever a formal application or petition filed with the office is denied, the applicant shall be given written notice setting forth the specific reasons for such denial. When the applicant so desires, such an appeal to the board may be taken within 15 days after the service of notification of decision accompanied by a supporting brief if desired and any fee established for filing the notice of appeal which shall be furnished with the written notice. For good cause shown, the time within which the brief may be submitted may be extended. The party taking the appeal may, prior to appearing before the board, file a written withdrawal of such appeal. An appeal, cross appeal, answer thereto and accompanying brief, if any, shall become part of the record of proceeding and, if filed by an officer of the office, a copy shall be served on the party affected.
(b) Dismissal of Appeals. Notwithstanding the provisions of subsection (c) of this section, the board may deny oral argument and dismiss any appeal when (1) the party concerned fails to specify the reasons for his/her appeal, or (2) the appeal is patently frivolous.
(c) Oral Argument. If an appeal is taken, request for oral argument, "if desired, shall be included in a notice of appeal. The board shall have the authority to designate the time, date and place where oral argument may be heard.
(a) Remittances. Fees shall be submitted with any formal application or petition prescribed in this chapter and shall be in the amount prescribed by law or rule. When any discretionary relief in exclusion or deportation proceedings is granted absent an application and fee therefor, the chief immigration officer shall require the filing of the application and the payment of the fee. Every remittance shall be accepted subject to collection. A charge of $5 will be imposed if a check in payment of the fee is not honored by the bank on which it is drawn. A receipt issued by an officer for any such remittance shall not be binding if a remittance if found uncollectible. Remittances must be drawn on a bank or other institution located in American Samoa or the United States and be payable in United States currency. Fees in a form of postage stamps shall not be accepted. Remittance shall be made payable to the "Treasurer-American Samoa Government." If application is submitted from outside American Samoa and the United States, remittance may be made by bank international money order or foreign draft drawn on a financial institution in American Samoa or in the United States and payable to "Treasurer of American Samoa Government" in United States currency.
(b) Amounts of fees. The following fees and charges are prescribed:
(1) the fee for a case of original jurisdiction before the board shall be $5 unless otherwise provided below;
(2) the fee for an appeal to the board shall be $15;
(3) a fee of $25 shall be charged for the following applications: permanent residency, all priorities under 41.0301 and 41.0303 ASCA; and
(4) a fee of $15 shall be charged for the following application: temporary or seasonal workers; a lost, stolen, destroyed, mutilated registration receipt card, a new registration receipt card for a name change; and application for extension of time to remain under numerical limitations.
(c) Waiver of Fees. Except as otherwise provided in this subsection and in 41.0313 of this chapter, any of the fees prescribed in subsection (b) of this section relating to applications, petitions, appeals, motions, or requests may be waived in any case in which the alien or other party affected is unable to pay the prescribed fee if he/she files his/her affidavit asking for permission to prosecute without payment of fee, the application, petition, appeal, motion or request, and stating his/her belief that he/she is entitled to or deserving of the benefit and the reasons for the inability to pay. The chief immigration officer or the board may, in its discretion, grant the waiver of fee.
(a) Access to Available Records. An individual seeking records about him/herself shall present the request in person or in writing to the chief immigration officer. The person requesting information shall to the extent possible assist in identifying the request as precisely as possible to insure expeditious handling and rapid identification.
(b) Verification of Identity. The following standards are applicable to any individual who requests records concerning him/herself unless other provisions for identity verification are specified in the published notice pertaining to the particular system of records:
(1) An individual seeking access to records about him/herself in person shall establish identity by the presentation "of a single document bearing a photograph (such as a passport, alien registration receipt card or identification) or by the presentation of two items of identification which do not bear a photograph but do bear both a name and address (such as a driver's license, or credit card).
(2) An individual seeking access to records about him/herself by mail shall establish identity by a signature, address, date of birth, place of birth, alien or employee identification, if any, and one other identifier such as a photocopy of an identifying document.
(3) An individual seeking access to records about him/herself by mail or in person who cannot provide the necessary documentation of identification may provide a notarized statement swearing or affirming to his/her identity and to the fact that he/she understands the penalty for false statement pursuant to 41.070 1 ASCA. See also 41.0702, 41.0703, 41.0704 and 41.0313 ASCA.
(c) Verification of Guardianship. The parent or guardian of a child or of a person judicially determined to be incompetent and seeking to act on behalf of such child or incompetent, shall, in addition to establishing his/her own identity, establish the identity of the child or other person he/she represents as required in subsection (b) of this" section, and establish his/her own parentage or guardianship of the subject of the record by furnishing either a copy of a birth certificate showing parentage or a court order establishing a guardianship.
(d) Accompanying Persons. An individual seeking to review records pertaining to him/herself may be accompanied by another individual of his/her own choosing. Both the individual seeking access and the individual accompanying him/her shall be required to sign a form indicating that the office is authorized to discuss the contents of the subject record in the presence of both individuals.
(e) Specification of Records Sought. Request for access to records, either in person or by mail shall describe the nature of the records sought, the approximate dates covered by the record, and the identity of any individual or officers who may have had contact with this record.
(a) When an individual requests records about him/herself which have been exempted from individual access or which have been compiled in reasonable anticipation of a civil action or proceeding either in a court or before an administrative tribunal, the office will neither confirm nor deny the existence of the record which is presently available to him/her.
(b) Individual requests for access to records which have been exempted from access shall be processed as follows:
(1) Requests for information classified by the office shall be reviewed by the office to determine whether it continues to warrant classification. Information which no longer warrants classification under criteria shall be declassified and made available to the individual, if not otherwise exempt. If the information continues to warrant classification, the individual shall be advised that the information sought is classified; that it has been reviewed and continue to warrant classification; and that it has been exempted from access. Information which has been exempted and which is also classified shall be reviewed as required by this paragraph but the response to the individual shall be in the form prescribed by subsection (a) of this section.
(2) Requests for information which have been exempted from disclosure shall be responded to in the manner provided in subsection (a) of this section unless a review of the information indicates that the information has been used or is being used to deny the individual any right, privilege or benefit for which he/she is eligible or to which he/she would otherwise be eligible under American Samoa law. In that event, the individual shall be advised of the existence of the record and shall be provided the information except to the extent it would identify a confidential source. If and only if information identifying a confidential source can be deleted or the pertinent parts of the record summarized in a manner which protects the identity of the confidential source, the document with deletions made or the summary shall be furnished to the requestor .
(3) Information compiled as part of an employee background investigation shall be made available to an individual upon request except to the extent that it identifies a confidential source. If and only if information identifying a confidential source can be deleted or the pertinent parts of the record summarized in a manner which protects the identity of the confidential source, the document with deletion made or the summary shall be furnished to the requestor.
(4) Testing or examination materials which have been exempted shall not be made available to an individual if disclosures would compromise the objectivity or fairness of the testing or examination process but shall be made available if no such compromise possibility exists.
The fees charged by the office of the Attorney General and the immigration office for records pursuant to this chapter shall be $.75 per page. See 41.0404(b) for an exception for certain statements.
An individual who has been denied access by the office to the records concerning him/her may appeal that decision to the board in accordance with procedures in this chapter.
(a) How made. Unless a record is exempt from corrections, an individual may request amendment or correction of a record concerning him/her by addressing his/her request to the chief immigration officer either in person or by mail, his/her identity to be established as provided in 41.0320(b) of this chapter. The request must indicate the particular record involved, the nature of the correction sought, and the justification for the correction or amendment. Requests made by mail should be addressed to the chief immigration officer and shall be clearly marked on the request and on the envelope "Privacy Correction Request".
(b) Initial Determination. Within 15 working days of the receipt of the request, the office shall advise the individual that his/her record request has been received. If a record is to be amended or corrected, the office may so advise the individual but if correction is refused in whole or in part, it must be done by the chief immigration officer or a supervisor. If a correction is to be made, the individual shall be advised of his/her right to obtain a copy of the corrected record upon payment of the standard fee as established in 41.0322 of this chapter. If a correction or amendment is refused, in whole or in part, the individual shall be so advised, shall be given reasons for the refusal, and shall be advised of his/her right to appeal to the board in accordance with procedures set forth in this chapter.
(c) Notice of Correction or Disagreement. When a record has been corrected, the chief immigration officer shall, within 30 working days thereof, advise all prior recipients of the records whose identities can be determined pursuant to an accounting of the correction. Any dissemination of a record after the filing of a statement of disagreement shall be accompanied by a copy of that statement. Any statement of the office giving reasons for refusing to correct shall be included in the file.
The following records are not subject to correction or amendment by individuals:
(a) Transcript or written statement made under oath;
(b) Transcripts of the immigration board, judicial or quasi judicial proceedings which form the official record of those proceedings; and
(c) Pre sentence reports comprising the property of the court but maintained in office files.
It is the policy of the board not to allow aliens to attend the public school system, or the Community College of American Samoa or private schools and colleges or seminaries if their parents are not living in American Samoa, except as set forth in this section, and provided the alien is otherwise admissible:
(a) An alien may be allowed to enter and remain in American Samoa to attend any school if the alien is participating in an official exchange agreement between the American Samoa Government and the student's home country.
(b) On a case by case basis the board will review alien applicants to attend any school. Factors that will be considered, but not limited to, are the sponsoring family in American Samoa who will be responsible while the alienis here, school records, police and health records from the alien's home country, availability of room in the school or college for the alien, and parental or legal guardian written consent.
(c) Any alien authorized to enter and remain in American Samoa pursuant to subsections (a) and (b) of this section who does not attend the school regularly or engages in any employment without written approval of the board may be subject to immediate deportation.
(d) Alien students and the sponsors approved under this section shall file copies of report cards and attendance records with the office quarterly. Failure to provide such records could result in immediate deportation of the alien. A bond and airfare are required on all students.
It is the policy of the board that all business licenses submitted by aliens are to be reviewed by the board. There shall be no fee for this review. It is the policy of the board not to approve aliens for sole proprietorships for a business license. Aliens may be partners or founders or stockholders in partnerships or corporations pursuant to Title 30 ASCA.
(a) "Minister", as used in this section, means a person duly authorized by a recognized religious denomination having a bona fide organization in American Samoa to conduct religious worship and to perform other duties usually performed by a regular ordained pastor or clergyman of such denomination. The term shall also apply to persons duly authorized by an interdenominational organization designed to assist the various religious.
(b) An alien shall be allowed to enter and remain as a minister in American Samoa; provided, that:
(1) he/ she is entering solely for the purpose of carrying on the vocation of minister of a religious denomination;
(2) his/her services are needed by such religious denomination having a bona fide organization in American Samoa or his/her services are needed by an interdenominational religious organization; and
(3) his/her services are requested by the religious organization in American Samoa.
(c) "Missionary worker", as used in this section, encompasses all individuals performing religious work in American Samoa not included within the definition of "minister" as set forth in subsection (a) of this section.
(d) An alien missionary worker shall be allowed to enter and remain in American Samoa; provided that:
(1) it is established to the satisfaction of the immigration board that there are not American Samoans available to perform the type of missionary work to be done by the person requested ;
(2) he/she is entering solely for the purpose of carrying on religious work for the organization;
(3) his/her services are needed by such religious denomination having a bona fide organization in American Samoa or his/her services are needed by an interdenominational religious organization; and
(4) his/her services are requested by the religious organization in American Samoa.
(e) If the individual ceases to perform the missionary or ministerial services contemplated in the original immigration board approval he/she must depart American Samoa.
(f) Requests for "ministers" or "missionary" workers shall be filed on form P45 if the stay is for more than one year and on form P50 if the stay is for one year or less. Fees may be waived upon request and with showing of hardsh
Any alien who has entered or remained in American Samoa as a spouse of an American Samoan, United States National, or an alien approved for employment, "who becomes divorced shall be subject to having his/her right to remain revoked unless good and sufficient cause exists for allowing the person to remain. In determining good and sufficient cause, the board will consider, but not be limited to:
(a) Length of stay in American Samoa;
(b) Employment or ability to care for oneself and family;
(c) Housing arrangements;
(f) Police and health records; and
(g) Sponsorship, and posting of a bond and one-way air fare for all affected person, and valid passports or travel documents.
For the purposes of 41.0403 and 41.0406 ASCA, it is the policy of the board to accept only adoptions that occur in the United States, its territories and possessions, or adoptions accepted by the Courts of American Samoa.
Upon application for an alien to become a permanent resident, the alien and the sponsor must appear before the board. Failure of the sponsor to appear will result in denial or delay.