(a) Notice—(1) Referral by Form I-862, Notice to Appear. An immigration officer or asylum officer will sign and deliver a Form I-862 to an alien in the following cases:
(i) If, in accordance with the provisions of section 235(b)(2)(A) of the Act, the examining immigration officer detains an alien for a proceeding before an immigration judge under section 240 of the Act; or
(ii) If an immigration officer verifies that an alien subject to expedited removal under section 235(b)(1) of the Act has been admitted as a lawful permanent resident or refugee, or granted asylum, or, upon review pursuant to § 235.3(b)(5)(iv) of chapter I, an immigration judge determines that the alien was once so admitted or granted asylum, provided that such status has not been terminated by final administrative action, and the DHS initiates removal proceedings against the alien under section 240 of the Act.
(iii)-(iv) [Reserved]
(2) Referral by Form I-863, Notice of Referral to Immigration Judge. An immigration officer will sign and deliver a Form I-863 to an alien in the following cases:
(i) If an asylum officer determines that the alien does not have a credible fear of persecution or torture, and the alien requests a review of that determination by an immigration judge;
(ii) If, in accordance with section 235(b)(1)(C) of the Act, an immigration officer refers an expedited removal order entered on an alien claiming to be a lawful permanent resident, refugee, asylee, or U.S. citizen for whom the officer could not verify such status to an immigration judge for review of the order; or
(iii) If an immigration officer refers an applicant in accordance with the provisions of § 208.2(c)(1) or (2) of this chapter to an immigration judge for an asylum- or withholding-only hearing.
(b) Certification for mental condition; medical appeal. An alien certified under sections 212(a)(1) and 232(b) of the Act shall be advised by the examining immigration officer that he or she may appeal to a board of medical examiners of the United States Public Health Service pursuant to section 232 of the Act. If such appeal is taken, the district director shall arrange for the convening of the medical board.
(c) The provisions of part 235 are separate and severable from one another. In the event that any provision in part 235 is stayed, enjoined, not implemented, or otherwise held invalid, the remaining provisions shall nevertheless be implemented as an independent rule and continue in effect.
[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 74 FR 55739, Oct. 28, 2009; 85 FR 29316, May 14, 2020; 85 FR 80393, Dec. 11, 2020; 87 FR 18220, Mar. 29, 2022]
Notes of Decisions
Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005).
“3 (b)(4); 8 C.F.R. § 235.6 (a)(l)(ii). The last type of proceeding is the standard removal proceeding for persons present in the United States, regardless of whether they are applicants for admission or have been living in the United States previously.”
Avetisyan, 25 I. & N. Dec. 688 (BIA 2012).
“Section 239 of the Act, 8 U.S.C. § 1229 (2006); 8 C.F.R. § 1239.”
Pierre v. Doll, 350 F. Supp. 3d 327 (M.D. Penn. 2018).
“8 C.F.R. § 235.6 (a)(1)(ii). The alien, however, remains detained pursuant to 8 U.”
Cenatice, 16 I. & N. Dec. 162 (BIA 1977).
· cites it 2× “1 We note, however, that despite the explicit requirement of 8 C.F.R. 235.6(a) that the examining immigration officer give immediate notice to the aliens detained of referral to a special inquiry officer (immigration judge), such notice was not given until December 1, 1976,…”
Giuseppe Vitale v. Immigr. & Naturalization Serv., 463 F.2d 579 (7th Cir. 1972).
· cites it 3× “Inspection was completed on March 10, at which time Vitale was served pursuant to 8 C.F.R. § 235.6 (a) with Form 1-122 (“Notice to Applicant For Admission Detained for Hearing Before Special Inquiry Officer”) for an exclusion hearing that day before a special inquiry officer.”
Ahad v. Lowe, 235 F. Supp. 3d 676 (M.D. Penn. 2017).
“8 C.F.R. § 235.6 (a)(1)(h). However, during the pendency of these proceedings the statute and regulations provide that the alien will remain-detained pursuant to 8 U.”
Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980).
“Petitioner was temporarily removed to a processing camp in Fort McCoy, Wisconsin and, thereafter, on June 16, 1980, was given notice that he was believed to be excludable and would be detained pending a hearing, 8 C.F.R. 235.6 (1980). 7. Petitioner was transferred to the United…”
Klapholz v. Esperdy, 201 F. Supp. 294 (S.D.N.Y. 1961).
· cites it 2× “It is conceded that the Service failed to give plaintiff a Form 1-122 “immediately” as required by the regulations (8 C.F.R. 235.6); but it is equally true that it failed to stamp his visa “Admitted” which is the regulated method of marking visas of persons admitted; these…”
— 8 C.F.R. § 235.6(a) — 2 cases
Cenatice, 16 I. & N. Dec. 162 (BIA 1977).
“1 We note, however, that despite the explicit requirement of 8 C.F.R. 235.6(a) that the examining immigration officer give immediate notice to the aliens detained of referral to a special inquiry officer (immigration judge), such notice was not given until December 1, 1976,…”
Lin, 18 I. & N. Dec. 219 (BIA 1982).
— 8 C.F.R. § 235.6(b) — 1 case
Azevedo, 13 I. & N. Dec. 611 (BIA 1970).
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