Supporting Law/Regulation

§ 235.6

8 CFR Ch. I (1–1–04 Edition)

examination shall be deferred and further proceedings regarding removability conducted as provided in section 240 of the Act and 8 CFR part 240.
When the foregoing inspection procedure is applied to any aircraft, persons
examined and found admissible shall be
placed aboard the aircraft, or kept at
the airport separate and apart from the
general public until they are permitted
to board the aircraft. No other person
shall be permitted to depart on such
aircraft until and unless he or she is
found to be admissible as provided in
this section.
(b) In foreign territory. In the case of
any aircraft, vessel, or train proceeding
directly, without stopping, from a port
or place in foreign territory to a portof-entry in the United States, the examination and inspection of passengers
and crew required by the Act and final
determination of admissibility may be
made immediately prior to such departure at the port or place in the foreign
territory and shall have the same effect under the Act as though made at
the destined port-of-entry in the
United States.
[62 FR 10358, Mar. 6, 1997]

§ 235.6 Referral to immigration judge.
(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 asylum officer determines
that an alien in expedited removal proceedings has a credible fear of persecution or torture and refers the case to
the immigration judge for consideration of the application for asylum.
(iii) If the immigration judge determines that an alien in expedited removal proceedings has a credible fear
of persecution or torture and vacates
the expedited removal order issued by
the asylum officer.
(iv) 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 perma-

nent resident refugee, or asylee, or
upon review pursuant to § 235.3(b)(5)(iv)
an immigration judge determines that
the alien was once so admitted, provided that such status has not been terminated by final administrative action, and the Service initiates removal
proceedings against the alien under
section 240 of the Act.
(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 an alien does not have a credible
fear of persecution or torture, and the
alien requests a review of that determination by an immigration judge; or
(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.
(iii) If an immigration officer refers
an applicant described in § 208.2(b)(1) of
this chapter to an immigration judge
for an asylum hearing under § 208.2(b)(2)
of this chapter.
(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.
[62 FR 10358, Mar. 6, 1997, as amended at 64
FR 8494, Feb. 19, 1999]

§ 235.7 Automated inspection services.
(a) PORTPASS Program—(1) Definitions—(i) Port Passenger Accelerated
Service System (PORTPASS). A system
in which certain ports-of-entry (POEs)
are identified and designated by the
Service as providing access to the
United States for a group of identified,
low-risk, border crossers. Alien participants in the PORTPASS program are
personally inspected, identified, and
screened in advance of approval for

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Immigration and Naturalization Service, DHS
participation in the program by an immigration officer, and may apply to
enter the United States through a dedicated commuter lane (DCL) or through
an automated permit port (APP). Such
advance inspection and identification,
when the enrolled participant satisfies
the conditions and requirements set
fourth in this section, satisfies the reporting requirements of § 235.1(a). Each
successful use of PORTPASS constitutes a separate and completed inspection and application for entry by
the alien program participants on the
date PORTPASS is used. United States
citizens who meet the eligibility requirements for participation are subject to all rules, procedures, and conditions for use set forth in this section.
(ii) Automated Permit Port (APP). A
POE designated by the Service to provide access to the United States by an
identified, low-risk, border crosser
through the use of automation when
the POE is not staffed. An APP has
limited hours of operation and is located at a remote location on a land
border. This program is limited to the
northern border of the United States.
(iii) Dedicated Commuter Lane (DCL).
A special lane set apart from the normal flow of traffic at a land border
POE which allows an accelerated inspection for identified, low-risk travelers. This program is limited to the
northern border of the United States
and the California-Mexico border.
(iv) DCL system costs fee. A fee
charged to a participant to cover the
cost of the implementation and operation of the PORTPASS system. If a
participant wishes to enroll more than
one vehicle for use in the PORTPASS
system, he or she will be assessed an
additional vehicle fee for each additional
vehicle enrolled. Regardless of when
the additional vehicle is enrolled, the
expiration date for use of that vehicle
in the DCL will be the same date that
the respective participant’s authorized
use of the lane expires, or is otherwise
revoked.
(2) Designation of POEs for PORTPASS
access. The following criteria shall be
used by the Service in the selection of
a POE when classifying the POE as
having PORTPASS access:
(i) The location has an identifiable
group of low-risk border crossers;

§ 235.7

(ii) The institution of PORTPASS access will not significantly inhibit normal traffic flow;
(iii) The POE selected for access via
a DCL has a sufficient number of Service personnel to perform primary and
secondary inspection functions.
(3) General eligibility requirements for
PORTPASS program applicants. Applicants to PORTPASS must be citizens
or lawful permanent residents of the
United States, or nonimmigrants determined to be eligible by the Commissioner of the Service. Non-United
States citizens must meet all applicable documentary and entry eligibility
requirements of the Act. Applicants
must agree to furnish all information
requested on the application, and must
agree to terms set forth for use of the
PORTPASS program. Use of the
PORTPASS program constitutes application for entry into the United States.
Criminal justice information databases
will be checked to assist in determining the applicant’s eligibility for
the PORTPASS program at the time
the Form I–823, Application—Alternative Inspection Services, is submitted. Criminal justice information
on PORTPASS participants will be updated regularly, and the results will be
checked electronically at the time of
each approved participant’s use of
PORTPASS. Notwithstanding the provisions of 8 CFR part 264, fingerprints
on Form FD–258 or in the manner prescribed by the Service may be required.
(4) Application. (i) Application for
PORTPASS access shall be made on
Form I–823, Application—Alternative
Inspection Services. Applications may
be submitted during regular working
hours at the principal Port-of-Entry
having jurisdiction over the Port-ofEntry for which the applicant requests
access. Applications may also be submitted by mail.
(ii) Each person seeking PORTPASS
access must file a separate application.
(iii) The number of persons and vehicles which can use a DCL is limited numerically by the technology of the system. For this reason, distribution of
applications at each POE may be limited.
(iv) Applications must be supported
by evidence of citizenship, and, in the
case of lawful permanent residents of

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§ 235.7

8 CFR Ch. I (1–1–04 Edition)

the United States, evidence of lawful
permanent resident status in the
United States. Alien applicants required to possess a valid visa must
present documentation establishing
such possession and any other documentation as required by the Act at
the time of the application, and must
be in possession of such documentation
at the time of each entry, and at all
times while present in the United
States. Evidence of residency must be
submitted by all applicants. Evidence
of employment may be required to be
furnished by the applicant. A current
valid driver’s license, and evidence of
vehicle registration and insurance for
the vehicle which will be occupied by
the applicant as a driver or passenger
when he or she uses the DCL or APP
must be presented to the Service prior
to approval of the application.
(v) A completed Form I–823 must be
accompanied by the fee as prescribed in
§ 103.7(b)(1) of this chapter. Each
PORTPASS applicant 14 years-of-age
or older must complete the application
and pay the application fee. Applicants
under the age of 14 will be required to
complete the application, but will not
be required to pay the application fee.
An application for a replacement
PORTPASS card must be made on the
Form I–823, and filed with the fee prescribed in § 103.7(b)(1). The district director having jurisdiction over the
POE where the applicant requests access may, in his or her discretion,
waive the application or replacement
fee.
(vi) If fingerprints are required to assist in a determination of eligibility at
that POE, the applicant will be so advised by the Service prior to submitting his or her application. The applicant shall also be informed at that
time of the current Federal Bureau of
Investigation fee for conducting a fingerprint check. This fee must be paid
by the applicant to the Service before
any processing of the application shall
occur. The fingerprint fee may be not
be waived.
(vii) Each applicant must present
himself or herself for an inspection
and/or positive identification at a time
designated by the Service prior to approval of the application.

(viii) Each vehicle that a PORTPASS
participant desires to register in
PORTPASS must be inspected and approved by the Service prior to use in
the PORTPASS system. Evidence of
valid, current registration and vehicle
insurance must be presented to the
Service at the time the vehicle is inspected. If the vehicle is not owned by
the participant, the participant may be
required to present written permission
from the registered owner authorizing
use of the vehicle in the PORTPASS
program throughout the PORTPASS
registration period.
(ix) An applicant, whether an occupant or driver, may apply to use more
than one vehicle in the DCL. The first
vehicle listed on the Form I–823 will be
designated as the applicant’s primary
vehicle. The second vehicle, if not designated by another applicant as his or
her primary vehicle, is subject to the
additional vehicle charge as prescribed
by the Service.
(x) An application may be denied in
the discretion of the district director
having jurisdiction over the POE where
the applicant requests access. Notice of
such denial shall be given to the applicant. There is no appeal from the denial, but denial is without prejudice to
reapplying for this or any other Service benefit. Re-applications, or applications following revocation of permission to use the lane, will not be considered by the Service until 90 days have
passed following the date of denial or
revocation. Criteria which will be considered in the decision to approve or
deny the application include the following: admissibility to the United
States and documentation so evidencing, criminal history and/or evidence of
criminality, purpose of travel, employment, residency, prior immigration
history, possession of current driver’s
license, vehicle insurance and registration, and vehicle inspection.
(xi) Applications approved by the
Service will entitle the applicant to
seek
entry
via
a
designated
PORTPASS Program POE for a period
of 2 years from the date of approval of
the application unless approval is otherwise withdrawn. An application for a
replacement card will not extend the
initial period of approval.

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Immigration and Naturalization Service, DHS
(5) By applying for and participating
in the PORTPASS program, each approved participant acknowledges and
agrees to all of the following:
(i) The installation and/or use of, in
the vehicle approved for use in the
PORTPASS program, any and all decals, devices, technology or other
methodology deemed necessary by the
Service to ensure inspection of the person(s) seeking entry through a DCL, in
addition to any fee and/or monetary deposit assessed by the Service pending
return of any and all such decals, devices, technology, and other methodology in undamaged condition.
(ii) That all devices, decals, or other
equipment, methodology, or technology used to identify or inspect persons or vehicles seeking entry via any
PORTPASS program remains the property of the United States Government
at all times, and must be surrendered
upon request by the Service. Each participant agrees to abide by the terms
set forth by the Service for use of any
device, decal, or other equipment,
method or technology.
(iii) The payment of a system costs
fee as determined by the Service to be
necessary to cover the costs of implementing, maintaining, and operating
the PORTPASS program.
(iv) That each occupant of a vehicle
applying for entry through PORTPASS
must have current approval from the
Service to apply for entry through the
PORTPASS program in that vehicle.
(v) That a participant must be in possession of any authorization document(s) issued for PORTPASS access
and any other entry document(s) as required by the Act or by regulation at
the time of each entry to the United
States.
(vi) That a participant must positively identify himself or herself in the
manner prescribed by the Service at
the time of each application for entry
via the PORTPASS.
(vii) That each use of PORTPASS
constitutes a separate application for
entry to the United States by the alien
participant.
(viii) That each participant agrees to
be responsible for all contents of the
vehicle that he or she occupies when
using PORTPASS.

§ 235.7

(ix) That a participant may not import merchandise or transport controlled or restricted items using
PORTPASS. The entry of any merchandise or goods must be in accordance with the laws and regulations of
all other Federal inspection agencies.
(x) That a participant must abide by
all Federal, state and local laws regarding the importation of alcohol or
agricultural products or the importation or possession of controlled substances as defined in section 101 of the
Controlled Substance Act (21 U.S.C.
§ 802).
(xi) That a participant will be subject
to random checks or inspections that
may be conducted by the Service at
any time and at any location, to ensure
compliance.
(xii) That current vehicle registration and, if applicable, current permission to use the vehicle in PORTPASS,
and evidence of current vehicle insurance, shall be in the vehicle at all
times during use of PORTPASS.
(xiii) Participant agrees to notify the
Service if a vehicle approved for use in
a PORTPASS program is sold, stolen,
damaged, or disposed of otherwise. If a
vehicle is sold, it is the responsibility
of the participant to remove or obliterate any identifying device or other
authorization for participation in the
program or at the time of sale unless
otherwise notified by the Service. If
any license plates are replaced on an
enrolled vehicle, the participant must
submit a properly executed Form I–823,
without fee, prior to use of the vehicle
in the PORTPASS program.
(xiv) That APP-approved participants
who wish to enter the United States
through a POE other than one designated as an APP through which they
may pass must present themselves for
inspection or examination by an immigration officer during normal business
hours. Entry to the United States during hours when a Port of Entry is not
staffed may be made only through a
POE designated as an APP.
(b) Violation of condition of the
PORTPASS program. A PORTPASS program participant who violates any condition of the PORTPASS program, or
who has violated any immigration law
or regulation, or a law or regulation of
the United States Customs Service or

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§ 235.8

8 CFR Ch. I (1–1–04 Edition)

other Federal Inspection Service, or
who is otherwise determined by an immigration officer to be inadmissible to
the United States or ineligible to participate in PORTPASS, may have the
PORTPASS access revoked at the discretion of the district director or the
chief patrol agent and may be subject
to other applicable sanctions, such as
criminal and/or administrative prosecution or deportation, as well as possible seizure of goods and/or vehicles.
(c) Judicial review. Nothing in this
section is intended to create any right
or benefit, substantive or procedural,
enforceable in law or equity by a party
against the Department of Justice, the
Immigration and Naturalization Service, their officers or any employees of
the Department of Justice.
[61 FR 53831, Oct. 16, 1996. Redesignated at 62
FR 10358, Mar. 6, 1997; 68 FR 10145, Mar. 4,
2003]

§ 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

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