[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR240.11]

[Page 488-490]
 
                     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 A--Removal Proceedings
 
Sec. 240.11  Ancillary matters, applications.

    (a) Creation of the status of an alien lawfully admitted for 
permanent residence. (1) In a removal proceeding, an alien may apply to 
the immigration judge for cancellation of removal under section 240A of 
the Act, adjustment of status under section 1 of the Act of November 2, 
1966 (as modified by section 606 of Pub. L. 104-208), section 101 or 104 
of the Act of October 28, 1977, section 202 of Pub. L. 105-100, or 
section 902 of Pub. L. 105-277, or for the creation of a record of 
lawful admission for permanent residence un`der section 249 of the Act. 
The application shall be subject to the requirements of Sec. 240.20, and 
8 CFR parts 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.
    (2) In conjunction with any application for creation of status of an 
alien lawfully admitted for permanent residence made to an immigration 
judge, if the alien 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 alien of his or her apparent eligibility to apply 
for any of the benefits enumerated in this chapter and shall afford the 
alien an opportunity to make application during the hearing.
    (3) In exercising discretionary power when considering an 
application for status as a permanent resident under this chapter, the 
immigration judge may consider and base the decision on information not 
contained in the record and not made available for inspection by the 
alien, 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

[[Page 489]]

information and its source, the immigration judge should inform the 
alien of the general nature of the information in order that the alien 
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 alien may apply to the immigration 
judge for voluntary departure in lieu of removal pursuant to section 
240B of the Act and subpart C of this part.
    (c) Applications for asylum and withholding of removal. (1) If the 
alien expresses fear of persecution or harm upon return to any of the 
countries to which the alien might be removed pursuant to 
Sec. 240.10(f), and the alien has not previously filed an application 
for asylum or withholding of removal that has been referred to the 
immigration judge by an asylum officer in accordance with Sec. 208.14 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 removal to those countries;
    (ii) Make available the appropriate application forms; and
    (iii) Advise the alien of the privilege of being represented by 
counsel at no expense to the government and of the consequences, 
pursuant to section 208(d)(6) of the Act, of knowingly filing a 
frivolous application for asylum. The immigration judge shall provide to 
the alien a list of persons who have indicated their availability to 
represent aliens in asylum proceedings on a pro bono basis.
    (2) An application for asylum or withholding of removal must be 
filed with the Immigration Court, pursuant to Sec. 208.4(c) 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, from the Department 
of State, unless classified under the applicable Executive Order, shall 
be given to both the alien and to the Service counsel representing the 
government.
    (3) Applications for asylum and withholding of removal so filed will 
be decided by the immigration judge pursuant to the requirements and 
standards established in 8 CFR part 208 of this chapter after an 
evidentiary hearing 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. 208.14 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 removal will be open to the public unless the alien expressly 
requests that the hearing be closed pursuant to Sec. 3.27 of this 
chapter. The immigration judge shall inquire whether the alien requests 
such closure.
    (ii) Nothing in this section is intended to limit the authority of 
the immigration judge to properly control the scope of any evidentiary 
hearing.
    (iii) During the removal hearing, the alien shall be examined under 
oath on his or her application and may present evidence and witnesses in 
his or her own behalf. The alien 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 standards set forth in Sec. 208.13 of this chapter.
    (iv) Service counsel 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 alien. 
The agency that provides the classified information to the immigration 
judge may provide an unclassified summary of the information for release 
to the alien, whenever it determines it can do so consistently with 
safeguarding both the classified nature of the information and its 
sources. The summary should be as detailed as possible, in order that 
the alien 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.

[[Page 490]]

    (4) The decision of an immigration judge to grant or deny asylum or 
withholding of removal shall be communicated to the alien and to the 
Service counsel. An adverse decision shall state why asylum or 
withholding of removal was denied.
    (d) Application for relief under sections 237(a)(1)(H) and 
237(a)(1)(E)(iii) of the Act. The respondent may apply to the 
immigration judge for relief from removal under sections 237(a)(1)(H) 
and 237(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 or her 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 or removal 
submitted to the Service on or after January 4, 1995, as the basis for 
issuance of a charging document or to establish alienage or 
deportability in a case referred to an immigration judge under 
Sec. 208.14(b) of this chapter. The alien 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. 
Nothing contained in this section is intended to foreclose the 
respondent from applying for any benefit or privilege that he or she 
believes himself or herself eligible to receive in proceedings under 
this part. Nothing in this section is intended to limit the Attorney 
General's authority to remove an alien to any country permitted by 
section 241(b) of the Act.
    (f) Fees. The alien 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. 
When a motion to reopen or reconsider is made concurrently with an 
application for relief seeking one of the immigration benefits set forth 
in paragraphs (a) and (c) of this section, only the fee set forth in 
Sec. 103.7(b)(1) of this chapter for the motion must accompany the 
motion and application for relief. If such a motion is granted, the 
appropriate fee for the application for relief, if any, set forth in 8 
CFR 103.7(b)(1), must be paid within the time specified in order to 
complete the application.

[62 FR 10367, Mar. 6, 1997, as amended at 62 FR 45150, Aug. 26, 1997; 63 
FR 27829, May 21, 1998; 64 FR 25766, May 12, 1999]