Part 163-SUBPENAING WITNESSES Sec. 163.1 Subpena; authority for; when exercised. 163.2 Issuance and service of subpena; invoking aid of court; report. Sec. 163.3 Expenses of subpenaed witnesses; reports. § 163.1 Subpena; authority for; when exercised. District directors and inspectors in charge are authorized to subpena witnesses and require the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end they may invoke the aid of any court of the United States. The power to issue subpenas should be exercised only when absolutely necessary. Whenever an inspector conducting an investigation or a board of special inquiry holding a hearing has reason to believe that a certain witness whose testimony is deemed essential to a proper decision of the case will not appear and testify or produce books, papers, and documents unless commanded to do so, such inspector or the chairman of such board shall request the commissioner or inspector in charge to issue a subpena and have it served upon such witness. If an alien or his authorized representative requests that a witness be subpenaed, he shall be required, as a condition precedent to the granting of the request, to state in writing what he expects to prove by such witness or the books, papers, and documents indicated by him and to show affirmatively that the proposed evidence is relevant and material and that he has made diligent efforts without success to produce the same. The examination of the witness or of the books, papers, and documents produced by him shall be limited to the purpose specified in such written statement of the alien or his authorized representative. When a witness has been examined by the investigating officer and counsel has not had an opportunity to cross-examine such witness and it is apparent or is shown that such witness will not appear for crossexamination unless commanded to do so, a subpena shall issue. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 166; 8 U. S. C. 102, 222: interprets sec. 16, 39 Stat. 885; 8 U. S. C. 152) 163.2 Issuance and service of subpena; invoking aid of court; report. Upon determining that a witness whose evidence is desired either by the Government or the alien will not appear and testify or produce written evidence unless commanded to do so, the district director or inspector in charge shall issue a subpena and have it served upon the witness by an immigration officer or employee, in conformity with this Part, due record of such service to be made. If the witness neglects or refuses to respond to the subpena, the United States Attorney of the proper district shall be requested so to report to the appropriate district court, and 568700°-44- -40 873 move that an order be issued requiring the witness to appear or to produce written evidence, as provided by section 16 of Immigration Act of 1917 (39 Stat. 885; 8 U. S. C. 152), or for action as therein specified in the event of continued neglect or refusal. District directors or inspectors in charge shall submit promptly to the Central Office a report of each subpena issued under the terms of this Part. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 166; 8 U. S. C. 102, 222) 163.3 Expenses of subpenaed witnesses; reports. If a witness subpenaed at the request of the alien or his representative demands that he be recompensed for time lost from his employment, arrangements therefor must be made by the alien or his representative as a condition precedent to the issuance of the subpena. If a subpena is issued under authority of section 16 of the Immigration Act of 1917 (39 Stat. 885; 8 U. S. C. 152), at the request of an inspector or the chairman of a board, mileage and fees may be paid at rates not to exceed those usually allowed by the United States district court for the district in which the testimony is taken. Where the total amount of mileage and fees exceeds $25, specific authority must be obtained in advance from the Central Office. (Sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U. S. C. 102, 222) Part 165-FORMAL PETITIONS AND APPLICATIONS Sec. 165.1 Petition for nonquota or pref- 165.2 Nonquota or preference quota 165.5 Permit to reenter; applica- 165.7 Permit to reenter; issuance; effect. 165.8 Permit to reenter; manner of delivery; requirements upon return. Sec. 165.9 Permit to reenter; emergent 165.11 Permit to reenter; fee. 165.13 Temporary stay in United 165.14 Visitors or tourists in United States; failure to maintain status. 165.15 Formal petitions and applications; oaths; by whom administered. 165.1 Petition for nonquota or preference quota immigration visa; requirements. (a) Subject to the limitations described in paragraph (b) of this section, a citizen of the United States claiming that any immigrant is his relative and properly admissible to the United States as a nonquota immigrant, or that any immigrant is entitled to preference in the issuance of an immigration visa, shall, in order to establish such nonquota or preference status for such immigrant, file with the Commissioner of Immigration and Naturalization a typewritten petition in duplicate (Form I-133), alleging under oath (a) petitioner's name and address; (b) if a citizen by birth, date and place of birth; (c) if a naturalized citizen, date and place of admission to citizenship, name of court admitting him, and the number of the certificate of naturalization, if any; (d) name and address of petitioner's employer, length of time employed, nature and character of business, or occupation, where located and net annual income derived therefrom; (e) if sole owner of unencumbered real estate, place located, and value; (f) petitioner's net worth; (g) degree of the relationship of the immigrant for whom petition is made, date and place of birth of such immigrant, and, if for a wife or husband, when, where, and by whom married; and (h) names of all the places where such immigrant has resided prior to and at the time when petition is filed: Provided, That where the petitioner alleges citizenship by birth a duly authenticated birth certificate or other documentary evidence showing birth in the United States shall be filed with the petition: Provided further, That where it is alleged that petitioner acquired citizenship through naturalization prior to the 27th day of September 1906, or in cases where naturalization has occurred within 90 days preceding the filing of the petition, certificate of naturalization shall be filed with the petition, and when a woman petitioner alleges citizenship through the naturalization of her husband prior to the marriage, a duly authenticated certificate of marriage or other documentary evidence showing when and where such marriage took place shall be filed with the petition: And provided further, That if the petitioner claims to have derived citizenship through his parent's naturalization or resumption of citizenship (prior to 12 noon, E. S. T., May 24, 1934), documentary evidence of such naturalization or resumption during the petitioner's minority and of his entry into the United States prior to attaining majority shall be filed; and if petitioner claims that such citizenship was so derived (after 12 noon, E. S. T., May 24, 1934) documentary evidence of facts bringing the case within section 2 of General Order 211, of August 2, 1934, shall be filed.* (Sec. 9, 43 Stat. 157; 8 U. S. C. 209) (b) No Chinese person as defined in § 110.35 of this chapter is entitled to a nonquota or preference quota status solely because of his relationship to a citizen of the United States. A preference up to 75 per centum of the quota for the Chinese prescribed by section 2 of the Act of December 17, 1943, shall be given to Chinese born and resident in China. There are no other preferences in the issuance of immigration visas under the quota for the Chinese prescribed by section 2 of that act. An alien who is a Chinese person as defined in § 110.35 of this chapter and who is seeking a preference in the issuance of an immigration visa under the said quota for the Chinese because of alleged birth and residence in China shall not be required to file an application for such preference with the Commissioner of Immigration and Naturalization but shall submit required proofs to the appropriate American consular officer. The quota for the Chinese authorized by section 2 of the act does not affect the quota of 100 prescribed for China by the President's Proclamation No. 2283, of April 28, 1938. Any citizen of the United States may proceed as described in paragraph (a) of this section in behalf of any relative, other than one who is a Chinese person as defined in § 110.35 of this chapter, who was born in China and is not eligible to citizenship. (Sec. 9, 43 Stat. 157, 50 Stat. 164; 8 U. S. C. 209; sec. 2, 57 Stat. 600) *§§ 165.1 to 165.15, inclusive, issued under the authority contained in sec. 23, 39 Stat. 892, sec. 24, 43 Stat. 166; 8 U. S. C. 102, 222. Statutes interpreted or applied and statutes giving special authority are listed in parentheses at the end of specific sections. 165.2 Nonquota or preference quota status; date of establishment; alteration of status. The nonquota status of alien wives, husbands and children of American citizens, under section 4 (a), or the preferential status of husbands and parents under section 6 (a) (1) (A) of the Immigration Act of 1924, as amended (47 Stat. 656; 8 U. S. C. 204 (a), 206 (a)), will be established as of the date when a properly executed petition of the citizen is filed with the Immigration and Naturalization Service, except that when a petition for a preference status is approved while the beneficiary is in the United States, the priority to be accorded the alien will be adjusted at the time of his application for a visa to accord with the date of his departure from the United States, as determined by the consular officer. In all cases, however, nonquota or preference quota, the issuance of a visa will be withheld and approval of the petition may be revoked if it is ascertained that the petitioner has since lost his American citizenship, has died, or has become divorced from the beneficiary wife or husband; or, in the case of a child, if application for the visa is not made before reaching the age of 22 years, or if he has become married. In such cases report will be made by the consular officer in order that the Department may reconsider the approval theretofore granted.* (Secs. 4, 6, 43 Stat. 155, sec. 3, 45 Stat. 1009, secs. 1, 2, 47 Stat. 656; 8 U. S. C. 204, 206) 165.3 Permit to reenter; application. Any alien previously lawfully admitted to the United States for permanent residence who is about to depart temporarily therefrom, and who desires a permit to reenter, may, not less than 30 days prior to his departure from the United States, file an application (Form I-131) which must be typewritten or printed in ink, stating under oath (a) name now used; (b) time, place, and manner of last arrival in the United States; (c) name used at time of entry; (d) father's name and mother's maiden name; (e) age, marital status, and occupation at time of entry; (f) place and date of birth; (g) last permanent residence and name and address of nearest relative in country whence alien came; (h) name and address of person to whom destined at time of last entry; (i) personal description as of date of filing application; (j) by whom accompanied at time of last entry; (k) address in the United States, and what temporary address abroad will be; (1) marital status at the date of Eling application, and if married the name and address of husband or wife; (m) nature of business or employment and name of employer; (n) port and date of proposed departure; name of vessel on which sailing, length of proposed absence, and reasons for going abroad. A separate application must be filed for each applicant. (Sec. 10, 43 Stat. 158; 8 U. S. C. 210) 165.4 Application for permits to reenter; manner and place of filing. Applications for permits to reenter must be filed in person at an immigration office, except that the following classes of persons shall mail their applications direct to the Commissioner of Immigration and Naturalization, Washington, D. C.: (a) Persons of a race eligible to citizenship, who were permanently admitted on and subsequent to July 1, 1924, with consular immigration visas; (b) Persons who have been registered under the Act of March 2, 1929, as amended, or section 328 (b) of the Act of October 14, 1940; and (c) Persons of a race eligible to citizenship, who after January 1, 1932, have applied for and received permits. Where it is claimed that an applicant cannot appear in person, the application may be forwarded to an immigration office by mail, For statutory citation, see note to 165.1 |