[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: 8CFR3.35]

[Page 35-36]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.35  Depositions and subpoenas.

    (a) Depositions. If an Immigration Judge is satisfied that a witness 
is not reasonably available at the place of hearing and that said 
witness' testimony or other evidence is essential, the Immigration Judge 
may order the taking of deposition either at his or her own instance or 
upon application of a party. Such order shall designate the official by 
whom the deposition shall be taken, may prescribe and limit the content, 
scope, or manner of taking the deposition, and may direct the production 
of documentary evidence.
    (b) Subpoenas issued subsequent to commencement of proceedings--(1) 
General.

[[Page 36]]

In any proceeding before an Immigration Judge, other than under 8 CFR 
part 335, the Immigration Judge shall have exclusive jurisdiction to 
issue subpoenas requiring the attendance of witnesses or for the 
production of books, papers and other documentary evidence, or both. An 
Immigration Judge may issue a subpoena upon his or her own volition or 
upon application of the Service or the alien.
    (2) Application for subpoena. A party applying for a subpoena shall 
be required, as a condition precedent to its issuance, to state in 
writing or at the proceeding, what he or she expects to prove by such 
witnesses or documentary evidence, and to show affirmatively that he or 
she has made diligent effort, without success, to produce the same.
    (3) Issuance of subpoena. Upon being satisfied that a witness will 
not appear and testify or produce documentary evidence and that the 
witness' evidence is essential, the Immigration Judge shall issue a 
subpoena. The subpoena shall state the title of the proceeding and shall 
command the person to whom it is directed to attend and to give 
testimony at a time and place specified. The subpoena may also command 
the person to whom it is directed to produce the books, papers, or 
documents specified in the subpoena.
    (4) Appearance of witness. If the witness is at a distance of more 
than 100 miles from the place of the proceeding, the subpoena shall 
provide for the witness' appearance at the Immigration Court nearest to 
the witness to respond to oral or written interrogatories, unless there 
is no objection by any party to the witness' appearance at the 
proceeding.
    (5) Service. A subpoena issued under this section may be served by 
any person over 18 years of age not a party to the case.
    (6) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him or her in 
accordance with the provisions of this section, the Immigration Judge 
issuing the subpoena shall request the United States Attorney for the 
district in which the subpoena was issued to report such neglect or 
refusal to the United States District Court and to request such court to 
issue an order requiring the witness to appear and testify and to 
produce the books, papers or documents designated in the subpoena.

[62 FR 10335, Mar. 6, 1997]