Andrew DeFaria

§ 1240.1 Immigration judges.



(a) Authority. (1) In any removal
proceeding pursuant to section 240 of the Act, the immigration judge
shall have the authority to:



(i) Determine removability pursuant to
section 240(a)(1) of the Act; to make decisions, including orders of
removal as provided by section 240(c)(1)(A) of the Act;



(ii) To
determine applications under sections 208, 212(a)(2)(F),
212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g),
212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H),
237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act,
section 202 of Pub. L. 105-100, and section 902 of Pub. L. 105-277;
(Amended effective 6/11/99; 64 FR 25756)



(iii) To order withholding
of removal pursuant to section 241(b)(3) of the Act and pursuant to the
Convention Against Torture; and



(iv) To take any other action
consistent with applicable law and regulations as may be appropriate.




(2) In determining cases referred for further inquiry, immigration
judges shall have the powers and authority conferred upon them by the
Act and this chapter. Subject to any specific limitation prescribed by
the Act and this chapter, immigration judges shall also exercise the
discretion and authority conferred upon the Attorney General by the Act
as is appropriate and necessary for the disposition of such cases. An
immigration judge may certify his or her decision in any case under
section 240 of the Act to the Board of Immigration Appeals when it
involves an unusually complex or novel question of law or fact. Nothing
contained in this part shall be construed to diminish the authority
conferred on immigration judges under sections 101(b)(4) and 103 of the
Act. (Paragraph (a) amended effective 6/22/98; 63 FR 27823) (Paragraph
(a) revised effective 3/22/99; 64 FR 8478)



(b) Withdrawal and
substitution of immigration judges. The immigration judge assigned to
conduct the hearing shall at any time withdraw if he or she deems
himself or herself disqualified. If an immigration judge becomes
unavailable to complete his or her duties, another immigration judge may
be assigned to complete the case. The new immigration judge shall
familiarize himself or herself with the record in the case and shall
state for the record that he or she has done so.



(c) Conduct of
hearing. The immigration judge shall receive and consider material and
relevant evidence, rule upon objections, and otherwise regulate the
course of the hearing.



(d) Withdrawal of application for admission.
An immigration judge may allow only an arriving alien to withdraw an
application for admission. Once the issue of inadmissibility has been
resolved, permission to withdraw an application for admission should
ordinarily be granted only with the concurrence of the Service. An
immigration judge shall not allow an alien to withdraw an application
for admission unless the alien, in addition to demonstrating that he or
she possesses both the intent and the means to depart immediately from
the United States, establishes that factors directly relating to the
issue of inadmissibility indicate that the granting of the withdrawal
would be in the interest of justice. During the pendency of an appeal
from the order of removal, permission to withdraw an application for
admission must be obtained from the immigration judge or the Board.
(Corrected 4/1/97; previously § 235.4(b); 62 FR 15362)