[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

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

[CITE: 8CFR215.5]



[Page 386-387]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 215_CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES--Table of 

Contents

 

Sec. 215.5  Hearing procedure before special inquiry officer.



    (a) The hearing before the special inquiry officer shall be 

conducted in accordance with the following procedure:

    (1) The special inquiry officer shall advise the alien of the rights 

and privileges accorded him under the provisions of Sec. 215.4.

    (2) The special inquiry officer shall enter of record: (i) A copy of 

the order served upon the alien temporarily preventing his departure 

from the United States, and (ii) a copy of the notice of hearing 

furnished the alien.

    (3) The alien shall be interrogated by the special inquiry officer 

as to the matters considered pertinent to the proceeding, with 

opportunity reserved to the alien to testify thereafter in his own 

behalf, if he so chooses.

    (4) The special inquiry officer shall present on behalf of the 

Government such evidence, including the testimony of witnesses and the 

certificates or written statements of Government officials or other 

persons, as may be necessary and available. In the event such 

certificates or statements are received in evidence, the alien may 

request and, in the discretion of the special inquiry officer, be given 

an opportunity to interrogate such officials or persons, by deposition 

or otherwise, at a time and place and in a manner fixed by the special 

inquiry officer: Provided, That when in the judgment of the special 

inquiry officer any evidence relative to the disposition of the case is 

of a confidential or security nature the disclosure of which would be 

prejudicial to the interests of the United States, such evidence shall 

not be presented at the



[[Page 387]]



hearing but shall be taken into consideration in arriving at a decision 

in the case.

    (5) The alien may present such additional evidence, including the 

testimony of witnesses, as is pertinent and available.

    (b) A complete verbatim transcript of the hearing, except statements 

made off the record shall be recorded. The alien shall be entitled, upon 

request, to the loan of a copy of the transcript, without cost, subject 

to reasonable conditions governing its use.

    (c) Following the completion of the hearing, the special inquiry 

officer shall make and render a recommended decision in the case, which 

shall be governed by and based upon the evidence presented at the 

hearing and any evidence of a confidential or security nature which the 

Government may have in its possession. The decision of the special 

inquiry officer shall recommend: (1) That the temporary order preventing 

the departure of the alien from the United States be made final, or (2) 

that the temporary order preventing the departure of the alien from the 

United States be revoked. This recommended decision of the special 

inquiry officer shall be made in writing and shall set forth the 

officer's reasons for such decision. The alien concerned shall at his 

request be furnished a copy of the recommended decision of the special 

inquiry officer, and shall be allowed a reasonable time, not to exceed 

10 days, in which to submit representations with respect thereto in 

writing.

    (d) As soon as practicable after the completion of the hearing and 

the rendering of a decision by the special inquiry officer, the district 

director shall forward the entire record of the case, including the 

recommended decision of the special inquiry officer and any written 

representations submitted by the alien, to the regional commissioner 

having jurisdiction over his district. After reviewing the record, the 

regional commissioner shall render a decision in the case, which shall 

be based upon the evidence in the record and on any evidence or 

information of a confidential or security nature which he deems 

pertinent. Whenever any decision is based in whole or in part on 

confidential or security information not included in the record, the 

decision shall state that such information was considered. A copy of the 

regional commissioner's decision shall be furnished the alien, or his 

attorney or representative. No administrative appeal shall lie from the 

regional commissioner's decision.

    (e) Notwithstanding any other provision of this part, the 

Administrator of the Bureau of Security and Consular Affairs referred to 

in section 104(b) of the Immigration and Nationality Act, or such other 

officers of the Department of State as he may designate, after 

consultation with the Commissioner, or such other officers of the 

Immigration and Naturalization Service as he may designate, may at any 

time permit the departure of an individual alien or of a group of aliens 

from the United States if he determines that such action would be in the 

national interest. If the Administrator specifically requests the 

Commissioner to prevent the departure of a particular alien or of a 

group of aliens, the Commissioner shall not permit the departure of such 

alien or aliens until he has consulted with the Administrator.

    (f) In any case arising under Sec. Sec. 215.1 to 215.7, the 

Administrator shall, at his request, be kept advised, in as much detail 

as he may indicate is necessary, of the facts and of any action taken or 

proposed.