(a) Opening. The immigration board shall advise the respondent of his/her right to representation, at no expense to the government by counsel of his/her choice authorized to practice in the proceedings and require the alien to state then and there whether the alien desires representation; advise the respondent of the availability of free legal services programs if any; ascertain the respondent has received a list of such programs; advise the respondent that he/she will have reasonable opportunity to examine and object to the evidence against him/her, to present evidence in his/her own behalf and to cross-examine witnesses presented by the government; place respondent under oath; read the factual allegations and the charges in the order to show cause to the respondent and explain them in nontechnical language, and enter the order to show cause as an exhibit in the record. Deportation hearings shall be opened to the public except, that the board may, in its discretion and for the purpose of protecting witnesses, respondent, or public interest, direct that the general public or particular individuals shall be excluded from the hearing in any specific case. Depending upon physical facilities, reasonable limitation may be placed upon the number in attendance at anyone time, with priority being given to the press over the general public.

(b) Pleading by Respondent. The board shall require the respondent to plead to the order to show cause by stating whether he/she admits or denies the factual allegations and deportability under the charges contained therein. If the respondent admits the factual allegations and admits the deportability under the charges and the board is satisfied that no issue of law or fact remains, the board may determine that the deportability as charged has been established by the admissions of the respondent. The board shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this subsection, the board may not accept an admission of deportability, it shall direct a hearing on the issue.

(c) Issues of Deportability. When deportability is not determined under the provision of subsection (b) of this section, the board shall request the assignment of an assistant attorney general, and shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading.

(d) Additional Charges. An assistant attorney general who has been assigned to a case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent. The additional factual allegations and charges shall be submitted in writing and entered as an exhibit in the record. The board shall read the additional factual allegations and charges to the respondent and explain them to him/her in nontechnical language. The board shall advise the respondent, if the alien is not represented by counsel, that he/she may be so represented and that he/she may have a reasonable time within which to meet the additional factual allegations and charges. The respondent shall be required to state then and there whether he/she desires a continuance for either of these reasons. Thereafter, the provision of subsection (b) of this section shall apply to the additional factual allegations and lodged charges.

(e) The board shall conduct proceedings under this chapter to determine the deportability of any person. Determination of deportability shall be made only upon a record made in a proceeding before the board and the person shall have a reasonable opportunity to be present unless by reason of a person’s incompetency it is impractical for him/her to be present; in which case the board shall prescribe necessary and proper safeguards for his/her rights and privileges. If any person who has been given a reasonable opportunity to be present at a proceeding under this chapter and without reasonable cause fails or refuses to attend or to remain in attendance, the board may proceed to a determination in a like manner as if the person were present.

History: Rule 3-86, eff 7 Dec 86.