[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: 8CFR235.8]



[Page 424-425]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 235_INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents

 

Sec. 235.8  Inadmissibility on security and related grounds.



    (a) Report. When an immigration officer or an immigration judge 

suspects that an arriving alien appears to be inadmissible under section 

212(a)(3)(A) (other than clause (ii)), (B), or (C) of the Act, the 

immigration officer or immigration judge shall order the alien removed 

and report the action promptly to the district director who has 

administrative jurisdiction over the place where the alien has arrived 

or where the hearing is being held. The immigration officer shall, if 

possible, take a brief sworn question-and-answer statement from the 

alien, and the alien shall be notified by personal service of Form I-

147, Notice of Temporary Inadmissibility, of the action taken and the 

right to submit a written statement and additional information for 

consideration by the Attorney General. The district director shall 

forward the report to the regional director for further action as 

provided in paragraph (b) of this section.

    (b) Action by regional director. (1) In accordance with section 

235(c)(2)(B) of the Act, the regional director may deny any further 

inquiry or hearing by an immigration judge and order the alien removed 

by personal service of Form I-148, Notice of Permanent Inadmissibility, 

or issue any other order disposing of the case that the regional 

director considers appropriate.

    (2) If the regional director concludes that the case does not meet 

the criteria contained in section 235(c)(2)(B) of the Act, the regional 

director may direct that:

    (i) An immigration officer shall conduct a further examination of 

the alien, concerning the alien's admissibility; or,

    (ii) The alien's case be referred to an immigration judge for a 

hearing, or for the continuation of any prior hearing.

    (3) The regional director's decision shall be in writing and shall 

be signed by the regional director. Unless the written decision contains 

confidential information, the disclosure of which would be prejudicial 

to the public interest, safety, or security of the United States, the 

written decision shall be served on the alien. If the written decision 

contains such confidential information, the alien shall be served with a 

separate written order showing the disposition of the case, but with the 

confidential information deleted.

    (4) The Service shall not execute a removal order under this section 

under circumstances that violate section 241(b)(3) of the Act or Article 

3 of the Convention Against Torture. The provisions of part 208 of this 

chapter relating to consideration or review by an immigration judge, the 

Board of Immigration Appeals, or an asylum officer shall not apply.

    (c) Finality of decision. The regional director's decision under 

this section is final when it is served upon the alien in accordance 

with paragraph (b)(3) of this section. There is no administrative appeal 

from the regional director's decision.

    (d) Hearing by immigration judge. If the regional director directs 

that an alien subject to removal under this section be given a hearing 

or further hearing before an immigration judge, the hearing and all 

further proceedings in the matter shall be conducted in accordance with 

the provisions of section 240 of the Act and other applicable sections 

of the Act to the same extent as though the alien had been referred to 

an immigration judge by the examining immigration officer. In a case 

where the immigration judge ordered



[[Page 425]]



the alien removed pursuant to paragraph (a) of this section, the Service 

shall refer the case back to the immigration judge and proceedings shall 

be automatically reopened upon receipt of the notice of referral. If 

confidential information, not previously considered in the matter, is 

presented supporting the inadmissibility of the alien under section 

212(a)(3)(A) (other than clause (ii)), (B) or (C) of the Act, the 

disclosure of which, in the discretion of the immigration judge, may be 

prejudicial to the public interest, safety, or security, the immigration 

judge may again order the alien removed under the authority of section 

235(c) of the Act and further action shall be taken as provided in this 

section.

    (e) Nonapplicability. The provisions of this section shall apply 

only to arriving aliens, as defined in Sec. 1.1(q) of this chapter. 

Aliens present in the United States who have not been admitted or 

paroled may be subject to proceedings under Title V of the Act.



[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]