[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR240.49]

[Page 474-476]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES--Table of Contents
 
   Subpart E--Proceedings to Determine Deportability of Aliens in the 
 United States: Hearing and Appeal (for Proceedings Commenced Prior to 
                             April 1, 1997)
 
Sec. 240.49  Ancillary matters, applications.

    (a) Creation of the status of an alien lawfully admitted for 
permanent residence. The respondent may apply to the immigration judge 
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 the creation of a record of lawful admission 
for permanent residence under section 249 of the

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Act. The application shall be subject to the requirements of 8 CFR parts 
240, 245, and 249. The approval of any application made to the 
immigration judge under section 245 of the Act by an alien spouse (as 
defined in section 216(g)(1) of the Act) or by an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), shall result in the alien's 
obtaining the status of lawful permanent resident on a conditional basis 
in accordance with the provisions of section 216 or 216A of the Act, 
whichever is applicable. However, the Petition to Remove the Conditions 
on Residence required by section 216(c) of the Act or the Petition by 
Entrepreneur to Remove Conditions required by section 216A(c) of the Act 
shall be made to the director in accordance with 8 CFR part 216. In 
conjunction with any application for creation of status of an alien 
lawfully admitted for permanent residence made to an immigration judge, 
if the respondent is inadmissible under any provision of section 212(a) 
of the Act and believes that he or she meets the eligibility 
requirements for a waiver of the ground of inadmissibility, he or she 
may apply to the immigration judge for such waiver. The immigration 
judge shall inform the respondent of his or her apparent eligibility to 
apply for any of the benefits enumerated in this paragraph and shall 
afford the respondent an opportunity to make application therefor during 
the hearing. In exercising discretionary power when considering an 
application under this paragraph, the immigration judge may consider and 
base the decision on information not contained in the record and not 
made available for inspection by the respondent, provided the 
Commissioner has determined that such information is relevant and is 
classified under the applicable Executive Order as requiring protection 
from unauthorized disclosure in the interest of national security. 
Whenever the immigration judge believes that he or she can do so while 
safeguarding both the information and its source, the immigration judge 
should inform the respondent of 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 the information is material to the 
decision.
    (b) Voluntary departure. The respondent may apply to the immigration 
judge for voluntary departure in lieu of deportation pursuant to section 
244(e) of the Act and Sec. 240.56.
    (c) Applications for asylum or withholding of deportation. (1) The 
immigration judge shall notify the respondent that if he or she is 
finally ordered deported, his or her deportation will in the first 
instance be directed pursuant to section 243(a) of the Act to the 
country designated by the respondent and shall afford him or her an 
opportunity then and there to make such designation. The immigration 
judge shall then specify and state for the record the country, or 
countries in the alternative, to which respondent's deportation will be 
directed pursuant to section 243(a) of the Act if the country of his or 
her designation will not accept him or her into its territory, or fails 
to furnish timely notice of acceptance, or if the respondent declines to 
designate a country.
    (2) If the alien expresses fear of persecution or harm upon return 
to any of the countries to which the alien might be deported pursuant to 
paragraph (c)(1) of this section, and the alien has not previously filed 
an application for asylum or withholding of deportation that has been 
referred to the immigration judge by an asylum officer in accordance 
with Sec. 208.14(b) of this chapter, the immigration judge shall:
    (i) Advise the alien that he or she may apply for asylum in the 
United States or withholding of deportation to those countries; and
    (ii) Make available the appropriate application forms.
    (3) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 208.4(b) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, of the Department of 
State, unless classified under the applicable Executive Order, shall be 
given

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to both the applicant and to the Service counsel representing the 
government.
    (4) Applications for asylum or withholding of deportation so filed 
will be decided by the immigration judge pursuant to the requirements 
and standards established in 8 CFR part 208 after an evidentiary hearing 
that is necessary to resolve factual issues in dispute. An evidentiary 
hearing extending beyond issues related to the basis for a mandatory 
denial of the application pursuant to Sec. 208.13 or Sec. 208.16 of this 
chapter is not necessary once the immigration judge has determined that 
such a denial is required.
    (i) Evidentiary hearings on applications for asylum or withholding 
of deportation will be open to the public unless the applicant expressly 
requests that it be closed.
    (ii) Nothing in this section is intended to limit the authority of 
the immigration judge properly to control the scope of any evidentiary 
hearing.
    (iii) During the deportation hearing, the applicant shall be 
examined under oath on his or her application and may present evidence 
and witnesses in his or her own behalf. The applicant has the burden of 
establishing that he or she is a refugee as defined in section 
101(a)(42) of the Act pursuant to the standard set forth in Sec. 208.13 
of this chapter.
    (iv) The Service counsel for the government may call witnesses and 
present evidence for the record, including information classified under 
the applicable Executive Order, provided the immigration judge or the 
Board has determined that such information is relevant to the hearing. 
When the immigration judge receives such classified information he or 
she shall inform the applicant. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant, whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state whether such information is material 
to the decision.
    (5) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the Service counsel for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.
    (d) Application for relief under sections 241(a)(1)(H) and 
241(a)(1)(E)(iii) of the Act. The respondent may apply to the 
immigration judge for relief from deportation under sections 
241(a)(1)(H) and 241(a)(1)(E)(iii) of the Act.
    (e) 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. However, nothing in this section 
shall prohibit the Service from using information supplied in an 
application for asylum or withholding of deportation submitted to an 
asylum officer pursuant to Sec. 208.2 of this chapter on or after 
January 4, 1995, as the basis for issuance of an order to show cause or 
a notice to appear to establish alienage or deportability in a case 
referred to an immigration judge under Sec. 208.14(b) of this chapter. 
The respondent shall have the burden of establishing that he or she 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 in this section is 
intended to foreclose the respondent from applying for any benefit or 
privilege which he or she believes himself or herself eligible to 
receive in proceedings under this part.

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