10.2 Record of Proceeding.

(a) Definition .

A record of proceeding is the organized, official material constituting the record of any application, petition, hearing or other proceeding before USCIS . USCIS has specifically prescribed a format for assembly of a record of proceeding and for identifying record and non-record material. [See Chapter 3(E) of the Records Operations Handbook .] A record of proceedings may be housed in an "A" file or other agency file or it may be housed in a separate file jacket for consideration by the immigration court or an appellate office on appeal, certification or motion. Responsibility for maintaining a record of proceeding lies with the officer to whom the case is assigned.

(b) Exclusion of Restricted Material from a Record of Proceeding .

A director or officer-in-charge may consider and base a decision on information not contained in the record and not made available for inspection by the applicant or petitioner, provided that the regional director has determined that such material is relevant and is classified under Executive Order No. 11652 (37 FR 5209; March 10, 1972) requiring protection from unauthorized disclosure in the interest of national security. Such information will fall into one of the following categories:

· Classified material

· Information confidentially furnished

· Security report from the FBI, other security agencies, or any report from a Government agency carrying a restriction as to its use.

Such material must be maintained separately from the rest of the record, in the manner described in the Records Operations Handbook , Chapter 3(E)(4) .

If the regional director determines that disclosure of information within these categories would be prejudicial to the public interest, safety, or security, a memorandum to that effect must be included in the record of proceeding. Such memorandum should not contain information which would make the memorandum itself classified. [See 8 CFR 103.2(b)(16) .]

(c) Investigative Reports . [(b)(2) or (b)(7)(E)]

(d) Removing Record Material .

If it becomes necessary to remove material from a record of proceedings, either during or following that proceeding, a sheet of plain paper must be inserted in the record in its place. Note on the paper a description of the material removed, the reason for removal and the location where the material will be filed, as well as the name of the employee and date of action.

(e) Availability of Records for Review .

Upon request, a record of proceeding shall be made available to applicants, petitioners and their authorized representatives who have properly filed Form G-28. Appropriate action must be taken to ensure that any non-record materials are not compromised. To ensure this, physically remove either the record or the non- record portion of the file from the file jacket.