8 C.F.R. § 287.4

Subpoena

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(a) Who may issue—(1) Criminal or civil investigations. All District Directors; Deputy District Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Assistant Chief Patrol Agents; Officers in Charge; Patrol Agents in Charge; Assistant Patrol Agents in Charge; Field Operations Supervisors; Special Operations Supervisors; Supervisory Border Patrol Agents; Assistant District Directors, Investigations; Supervisory Criminal Investigators, Anti-Smuggling; Regional Directors; Service Center Directors; Assistant District Directors, Examinations; Director, Detention and Removal; Special Agents in Charge; all Special Agents in supervisory positions; Field Office Directors; Deputy Field Office Directors; and any other immigration officer who has been expressly delegated such authority as provided by 8 CFR 2.1 may issue a subpoena requiring the production of records and evidence for use in criminal or civil investigations.

(2) Proceedings other than naturalization proceedings—(i) Prior to commencement of proceedings. All District Directors; Deputy District Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Officers in Charge; Director, Detention and Removal; Special Agents in Charge; Deputy Special Agents in Charge; Resident Agents in Charge; District Field Officers; Field Office Directors; Deputy Field Office Directors; and Port Directors may issue a subpoena requiring the attendance of witnesses or the production of documentary evidence, or both, for use in any proceeding under this chapter I, other than under 8 CFR part 335, or any application made ancillary to the proceeding.

(ii) Subsequent to commencement of any immigration court proceeding. Procedures for the issuance of a subpoena after the commencement of proceedings, in cases other than those arising under part 335 of this chapter, are set forth at 8 CFR 1003.35(b) and 1287.4.

(b) Form of subpoena. All subpoenas shall be issued on Form I-138.

(1) Criminal or civil investigations. The subpoena shall command the person or entity to which it is addressed to attend and to give testimony at a time or place specified. A subpoena shall also command the person or entity to which it is addressed to produce the books, papers, or documents specified in the subpoena. A subpoena may direct the taking of a deposition before an immigration officer of the Department.

(2) Proceedings other than naturalization proceedings. Every subpoena issued under the provisions of this section shall state the title of the proceeding and shall command the person to whom it is directed to attend and to give testimony at a time and place specified. A subpoena shall also command the person to whom it is directed to produce the books, papers, or documents specified in the subpoena. A subpoena may direct the taking of a deposition before an immigration officer of the Department.

(c) Service. A subpoena issued under this section may be served by any person, over 18 years of age not a party to the case, designated to make such service by the District Director; Deputy District Director; Chief Patrol Agent; Deputy Chief Patrol Agent; Assistant Chief Patrol Agent; Patrol Agent in Charge; Officer in Charge; Assistant District Director, Investigations; Supervisory Criminal Investigator, Anti-Smuggling; Regional Director; Special Agent in Charge; Deputy Special Agent in Charge; Resident Agent in Charge; District Field Officer; Field Office Director; Deputy Field Office Director; Supervisory Deportation Officer; Supervisory Detention and Deportation Officer; and Port Director having administrative jurisdiction over the office in which the subpoena is issued. The Director, Detention and Removal, shall also have the authority to make such designation. Service of the subpoena shall be made by delivering a copy thereof to the person named therein and by tendering to him/her the fee for one day's attendance and the mileage allowed by law by the United States District Court for the district in which the testimony is to be taken. When the subpoena is issued on behalf of the Department, fee and mileage need not be tendered at the time of service. A record of such service shall be made and attached to the original copy of the subpoena.

(d) Invoking aid of court. If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the officer or immigration judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers, or documents designated in the subpoena.

[50 FR 30134, July 24, 1985; 50 FR 47205, Nov. 15, 1985, as amended at 60 FR 56937, Nov. 13, 1995; 62 FR 10390, Mar. 6, 1997; 67 FR 39260, June 7, 2002; 68 FR 35276, June 13, 2003]

Notes of Decisions

Cited in 22 cases, 1953–2012 · leading case: Oscar Alberto Canas Cuadras v. United States Immigr. & Naturalization Serv., 910 F.2d 567 (9th Cir. 1990).

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Oscar Alberto Canas Cuadras v. United States Immigr. & Naturalization Serv., 910 F.2d 567 (9th Cir. 1990). · cites it 4× “8 C.F.R. 287.4(a)(2). However, the IJ is not required to issue the subpoena unless he is satisfied that the evidence is "essential.”

Guevara Flores v. Immigr. & Naturalization Serv., 786 F.2d 1242 (5th Cir. 1986). · cites it 3× “At the hearing, Guevara moved for the issuance of administrative subpoenas pursuant to 8 C.F.R. § 287.4 . She sought production of all communications pertaining to her between the United States Government and the Salvadoran authorities.”

Emmanuel Senyo Agyeman v. Immigr. & Naturalization Serv., 296 F.3d 871 (9th Cir. 2002). “35 (a) (2001); see also 8 C.F.R. § 287.4 (a)(2)(ii)(D) (2001) (providing that witness who is more than 100 miles from place of proceeding may be subpoenaed to appear at the nearest INS office and respond to oral or written interrogatories).”

Rupinder Kaur Loveleen Kaur v. Immigr. & Naturalization Serv., 237 F.3d 1098 (9th Cir. 2001). · cites it 3× “See 8 C.F.R. § 287.4 (a)(2)(ii)(C). At the outset of the asylum hearing before the IJ, the Kaurs renewed their request for a subpoena compelling the production of the resource materials.”

Hector Andres Marroquin-Manriquez v. The Immigr. & Naturalization Serv., 699 F.2d 129 (3rd Cir. 1983). “INS regulations provide for the issuance of subpoenas, 8 C.F.R. § 287.4 (1982), 8 and in appropriate cases the taking of interrogatories or letters rogatory in foreign countries, generally assimilating the procedure prescribed in the Federal Rules of Civil Procedure which are…”

Oliva-Ramos v. Attorney Gen. of the United States, 694 F.3d 259 (3rd Cir. 2012). “’ 8 C.F.R. 287.4(a)(2)(ii)(C). Since the IJ did not rely on the BHRHA report, he did not abuse his discretion in determining that the witnesses and documents were not essential.”

Andrzej Skorusa v. Alberto R. Gonzales, 482 F.3d 939 (7th Cir. 2007). · cites it 2× “” 8 C.F.R. § 287.4 (b)(2). Should a witness fail to comply with the terms of a subpoena, the Code of Federal Regulations directs the IJ to request an order from a United States District Court requiring production.”

Mayock v. Immigr. & Naturalization Serv., 714 F. Supp. 1558 (N.D. Cal. 1989). · cites it 2× “Under 8 C.F.R. § 287.4 (a)(2), INS immigration judges may, on application of the alien, issue subpoenas requiring the attendance of witnesses or the production of documents, upon an offer of proof and a showing that the witness or material could not be produced with diligent…”

Amparo de Ocasio v. Ashcroft, 375 F.3d 105 (1st Cir. 2004). “See 8 C.F.R. § 287.4 (d) (authorizing IJ to request that the United States District Court issue an order requiring a recalcitrant witness to comply with an immigration court subpoena).”

Faisal Saidane, Petitioner, v. Immigr. & Naturalization Serv., Respondent, 129 F.3d 1063 (9th Cir. 1997). “Saidane also contends that the INS violated 8 C.F.R. § 287.4 (c) because an IJ is not one of the officials listed who is authorized to designate the person to serve a subpoena.”

Maria Irma Navia-Duran v. Immigr. & Naturalization Serv., 568 F.2d 803 (1st Cir. 1977). “8 C.F.R. § 287.4 (a)(2). 2 . Ms. Navia-Duran was provided with an interpreter during the hearing.”

R-s-j, 22 I. & N. Dec. 863 (BIA 1999). “1 (j) alone, asylum officers are designated to perform the functions of a chief patrol agent or district director to issue subpoenas under 8 C.F.R. § 287.4 (1999). Significantly, other than supervisory asylum officers, asylum offi- cers are not authorized to perform the…”

Show all 22 citing cases →

— 8 C.F.R. § 287.4(a) — 1 case

Application of Barnes, 116 F. Supp. 464 (N.D.N.Y. 1953).

— 8 C.F.R. § 287.4(a)(2) — 4 cases

Oscar Alberto Canas Cuadras v. United States Immigr. & Naturalization Serv., 910 F.2d 567 (9th Cir. 1990). “8 C.F.R. 287.4(a)(2). However, the IJ is not required to issue the subpoena unless he is satisfied that the evidence is "essential.”

Vergara, 15 I. & N. Dec. 388 (BIA 1975).

Lennon, 15 I. & N. Dec. 9 (BIA 1974).

Escobar, 16 I. & N. Dec. 52 (BIA 1976).

— 8 C.F.R. § 287.4(a)(2)(ii)(C) — 2 cases

— 8 C.F.R. § 287.4(d) — 1 case

Exantus & Pierre, 16 I. & N. Dec. 382 (BIA 1977).

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