[Code of Federal Regulations]

[Title 42, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR34.8]



[Page 111-112]

 

                         TITLE 42--PUBLIC HEALTH

 

    CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN 

                                SERVICES

 

PART 34_MEDICAL EXAMINATION OF ALIENS--Table of Contents

 

Sec. 34.8  Reexamination; convening of review boards; expert witnesses; 

reports.



    (a) The Director shall convene a board of medical officers to 

reexamine an alien:

    (1) Upon the request of the INS for a reexamination by such a board; 

or

    (2) Upon an appeal to the INS by an alien who, having received a 

medical examination in connection with the determination of admissiblity 

to the United States (including examination on arrival and adjustment of 

status as provided in the immigration laws and regulations) has been 

certified for a Class A condition.

    (b) For boards convened to reexamine aliens certified as:

    (1) Having a communicable disease of public health significance, the 

board shall consist of three medical officers, at least one of whom is 

experienced in the diagnosis and treatment of the communicable disease 

for which medical notification has been made, and the decision of the 

majority of the board shall prevail;

    (2)(i) Having a physical or mental disorder and behavior associated 

with the disorder that may pose, or has posed, a threat to the property, 

safety, or welfare of the alien or others; or

    (ii) Having a history of a physical or mental disorder and behavior 

associated with the disorder, which behavior has posed a threat to the 

property, safety, or welfare of the alien or others and which behavior 

is likely to recur or lead to other harmful behavior; or

    (iii) Being a drug abuser or addict;

    (3) In circumstances covered by paragraph (b)(2) of this section, 

the board shall consist of three medical officers, at least one of whom 

shall be a board certified psychiatrist, and the decision of the 

majority of the board shall prevail.

    (c) Reexamination shall include:

    (1) Review of all records submitted by the alien, other witnesses, 

or the board;

    (2) Use of any laboratory or additional studies which are deemed 

clinically necessary as a result of the physical examination or 

pertinent information elicited from the alien's medical history;

    (3) Consideration of statements regarding the alien's physical or 

mental condition made by a physician after his/her examination of the 

alien; and

    (4) An independent physical or psychiatric examination of the alien 

performed by the board, at the board's option.

    (d) An alien who is to be reexamined shall be notified of the time 

and place of his/her reexamination not less than 5 days prior thereto.

    (e) The alien, at his/her own cost and expense, may introduce as 

witnesses before the board such physicians or medical experts as the 

board may in its discretion permit; provided that the alien shall be 

permitted to introduce at least one expert medical witness. If any 

witnesses offered are not permitted by the board to testify, the record 

of the proceedings shall show the reason for the denial of permission.

    (f) Witnesses before the board shall be given a reasonable 

opportunity to examine the medical notification and other records 

involved in the reexamination and to present all relevant and material 

evidence orally or in writing until such time as the proceedings are 

declared by the board to be closed. During the course of the hearing the 

alien's attorney or representative shall be permitted to examine the 

alien and he/she, or the alien, shall be permitted to examine any 

witnesses offered in the alien's behalf and to cross-examine any 

witnesses called by the board. If the alien does not have an attorney or 

representative, the board shall assist the alien in the presentation of 

his/her case to the end that all of the material and relevant facts may 

be considered.

    (g) The findings and conclusions of the board shall be based on its 

medical examination of the alien, if any, and on the evidence presented 

and made a part of the record of its proceedings.

    (h) The board shall report its findings and conclusions to the INS, 

and shall also give prompt notice thereof to the alien if his/her 

reexamination has been based on his/her appeal. The board's report to 

the INS shall specifically affirm, modify, or reject the findings and



[[Page 112]]



conclusions of prior examining medical officers.

    (i) The board shall issue its medical notification in accordance 

with the applicable provisions of this part if it finds that an alien it 

has reexamined has a Class A or Class B condition.

    (j) If the board finds that an alien it has reexamined does not have 

a Class A or Class B condition, it shall issue its medical notification 

in accordance with the applicable provisions of this part.

    (k) After submission of its report, the board shall not be 

reconvened, nor shall a new board be convened, in connection with the 

same application for admission or for adjustment of status, except upon 

the express authorization of the Director.



[56 FR 25004, May 31, 1991]