[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: 8CFR270.2]



[Page 627-628]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 270_PENALTIES FOR DOCUMENT FRAUD--Table of Contents

 

Sec. 270.2  Enforcement procedures.



    (a) Procedures for the filing of complaints. Any person or entity 

having knowledge of a violation or potential violation of section 274C 

of the Act may submit a signed, written complaint to the Service office 

having jurisdiction over the business or residence of the potential 

violator or the location where the violation occurred. The signed, 

written complaint must contain sufficient information to identify both 

the complainant and the alleged violator, including their names and 

addresses. The complaint should also contain detailed factual 

allegations relating to the potential violation including the date, time 

and place of the alleged violation and the specific act or conduct 

alleged to constitute a violation of the Act. Written complaints may be 

delivered either by mail to the appropriate Service office or by 

personally appearing before any immigration officer at a Service office.

    (b) Investigation. When the Service receives complaints from a third 

party in accordance with paragraph (a) of this section, it shall 

investigate only those complaints which, on their face, have a 

substantial probability of validity. The Service may also conduct 

investigations for violations on its own initiative, and without having 

received a written complaint. If it is determined after investigation 

that the person or entity has violated section 274C of the Act, the 

Service may issue and serve upon the alleged violator a Notice of Intent 

to Fine.

    (c) Issuance of a subpoena. Service officers shall have reasonable 

access to examine any relevant evidence of any person or entity being 

investigated. The Service may issue subpoenas pursuant to its authority 

under sections 235(a) and 287 of the Act, in accordance with the 

procedures set forth in Sec. 287.4 of this chapter.

    (d) Notice of Intent to Fine. The proceeding to assess 

administrative penalties under section 274C of the Act is commenced when 

the Service issues a Notice of Intent to Fine. Service of this notice 

shall be accomplished by personal service pursuant to Sec. 103.5a(a)(2) 

of this chapter. Service is effective upon receipt, as evidenced by the 

certificate of service or the certified mail return receipt. The person 

or entity identified in the Notice of Intent to Fine shall be known as 

the respondent. The Notice of Intent to Fine may be issued by an officer 

defined in Sec. 242.1 of this chapter or by an INS port director 

designated by his or her district director.

    (e) Contents of the Notice of Intent to Fine. (1) The Notice of 

Intent to Fine shall contain the basis for the charge(s) against the 

respondent, the statutory provisions alleged to have been violated, and 

the monetary amount of the penalty the Service intends to impose.

    (2) The Notice of Intent to Fine shall provide the following 

advisals to the respondent:

    (i) That the person or entity has the right to representation by 

counsel of his or her own choice at no expense to the government;

    (ii) That any statement given may be used against the person or 

entity;

    (iii) That the person or entity has the right to request a hearing 

before an administrative law judge pursuant to 5



[[Page 628]]



U.S.C. 554-557, and that such request must be filed with INS within 60 

days from the service of the Notice of Intent to Fine; and

    (iv) That if a written request for a hearing is not timely filed, 

the Service will issue a final order from which there is no appeal.

    (f) Request for hearing before an administrative law judge. If a 

respondent contests the issuance of a Notice of Intent to Fine, the 

respondent must file with the INS, within 60 days of the Notice of 

Intent to Fine, a written request for a hearing before an administrative 

law judge. Any written request for a hearing submitted in a foreign 

language must be accompanied by an English language translation. A 

request for hearing is deemed filed when it is either received by the 

Service office designated in the Notice of Intent to Fine, or addressed 

to such office, stamped with the proper postage, and postmarked within 

the 60-day period. In computing the 60-day period prescribed by this 

section, the day of service of the Notice of Intent to Fine shall not be 

included. In the request for a hearing, the respondent may, but is not 

required to, respond to each allegation listed in the Notice of Intent 

to Fine. A respondent may waive the 60-day period in which to request a 

hearing before an administrative law judge and ask that the INS issue a 

final order from which there is no appeal. Prior to execution of the 

waiver, a respondent who is not a United States citizen will be advised 

that a waiver of a section 274C hearing will result in the issuance of a 

final order and that the respondent will be excludable and/or deportable 

from the United States pursuant to the Act.

    (g) Failure to file a request for hearing. If the respondent does 

not file a written request for a hearing within 60 days of service of 

the Notice of Intent to Fine, the INS shall issue a final order from 

which there shall be no appeal.

    (h) Issuance of the final order. A final order may be issued by an 

officer defined in Sec. 242.1 of this chapter, by an INS port director 

designated by his or her district director, or by the Director of the 

INS National Fines Office.

    (i) Service of the final order--(1) Generally. Service of the final 

order shall be accomplished by personal service pursuant to Sec. 

103.5a(a)(2) of this chapter. Service is effective upon receipt, as 

evidenced by the certificate of service or the certified mail return 

receipt.

    (2) Alternative provisions for service in a foreign country. When 

service is to be effected upon a party in a foreign country, it is 

sufficient if service of the final order is made: (i) In the manner 

prescribed by the law of the foreign country for service in that country 

in an action in any of its courts of general jurisdiction; or

    (ii) As directed by the foreign authority in response to a letter 

rogatory, when service in either case is reasonably calculated to give 

actual notice; or

    (iii) When applicable, pursuant to Sec. 103.5a(a)(2) of this 

chapter.



Service is effective upon receipt of the final order. Proof of service 

may be made as prescribed by the law of the foreign country, or, when 

service is pursuant to Sec. 103.5a(a)(2) of this chapter, as evidenced 

by the certificate of service or the certified mail return receipt.

    (j) Declination to file charges for document fraud committed by 

refugees at the time of entry. The Service shall not issue a Notice of 

Intent to Fine for acts of document fraud committed by an alien pursuant 

to direct departure from a country in which the alien has a well-founded 

fear of persecution or from which there is a significant danger that the 

alien would be returned to a country in which the alien would have a 

well-founded fear of persecution, provided that the alien has presented 

himself or herself without delay to an INS officer and shown good cause 

for his or her illegal entry or presence. Other acts of document fraud 

committed by such an alien may result in the issuance of a Notice of 

Intent to Fine and the imposition of civil money penalties.