Chapter 06 - Exclusion of Aliens

Chapter 06 - Exclusion of Aliens

41.0601 Authority of immigration officer.

In determining cases referred for further inquiry as provided in the Act, immigration officers shall have the power and authority conferred upon them by the Act and this title. Subject to any specific limitations prescribed by the Act and this title, immigration officers shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases. Any alien who is dissatisfied with the act of an immigration officer relative to his/her exclusion shall have the right to appeal to the immigration board.

41.0602 Hearing before the immigration board.

(a) Opening. Exclusion hearings shall be closed to the public, unless the alien at his/her instance requests that the public, including .the press be pen11itted to attend: in that event the hearing shall be opened: provided, that the alien states for the records that she/he is waiving the requirement in 41.0307 of the Act that all records shall be kept confidential. When the hearing is to be opened, depending upon physical facilities, reasonable limitations may be placed upon .the number in attendance at any one time, with priority being given to the press over the general public. The board shall ascertain whether the applicant for admission is the person who is the subject of an order of exclusion by an immigration officer: enter a copy of such order in evidence as an exhibit in the case; inform the applicant of the nature and purpose of the hearing; advise him/her of the privilege of being represented by an attorney of his/her own choice at no expense to the government, and of the availability of free legal services programs if any; and shall ascertain that the applicant has received a list of such programs; and request him/her to ascertain then and there whether she/he desires representation; advise him/her that he/she will have a reasonable opportunity to present evidence in his/her own behalf, to examine and object to evidence against him/her and to crossexamine witnesses presented by the government and place the applicant under oath.

(b) Procedure. The board shall receive and adduce materials and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.

(c) Attorney General. The board may request the Attorney General to assign or the Attorney General may assign an assistant attorney general to each case in which the applicant's nationality is in issue. The duties of an assistant attorney general include, but are not limited to, the presentation of evidence and the interrogation, examination and cross-examination of the applicant and other witnesses. Nothing contained herein diminishes the authority of the board to conduct proceedings under this part.

41.0603 Decision of the immigration board – Notice to the applicant.

(a) Contents. The decision of the board may be oral or written. I t shall include a discussion of the evidence and findings as to excludability: the forn1al enumeration of findings is not required. The decision shall be included with the order of the board.

(b) Oral Decision. An oral decision shall be stated for the record by the board at the conclusion of the hearing and in the presence of the applicant. When entitled to appeal from an adverse decision of the board, the applicant shall be so advised and be so required to state then and there that she/he wishes to appeal. At his/her request, the applicant shall be furnished with a type-written transcript of the oral decision of the board.

(c) Written Decision. When the decision of the board is in writing, the immigration officer shall serve a signed copy thereof on the applicant.