[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Rules and Regulations]
[Pages 18900-18910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10157]
[[Page 18899]]
_______________________________________________________________________
Part IV
Department of Justice
_______________________________________________________________________
8 CFR Part 1, et al.
Executive Office of Immigration Review; Motions and Appeals in
Immigration Proceedings; Final Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules
and Regulations
[[Page 18900]]
DEPARTMENT OF JUSTICE
8 CFR Parts 1, 3, 103, 208, 212, 242, and 246
[EOIR No. 102F; AG Order No. 2020-96]
RIN 1125-AA01
Executive Office for Immigration Review; Motions and Appeals in
Immigration Proceedings
AGENCY: Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule streamlines motions and appeals practice
before the Board of Immigration Appeals (``Board''), and establishes a
centralized procedure for filing notices of appeal, fees, fee waiver
requests, and briefs directly with the Board. The rule establishes time
and number limitations on motions to reconsider and on motions to
reopen and makes certain changes to appellate procedures, in great
measure, to reflect the statutory directives of section 545 of the
Immigration Act of 1990. The new 30-day period for filing appeals and
the provisions for filing appeals directly with the Board apply to
Immigration Judge decisions issued on or after the effective date of
the final rule.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration
Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041,
(703) 305-0470.
SUPPLEMENTARY INFORMATION: Under the final rule, parties will have the
opportunity to file only one motion to reopen and one motion to
reconsider during the administrative adjudication process. In most
instances, the motion to reopen must be filed not later than 90 days
after the date on which the final administrative decision was rendered
or on or before September 30, 1996, whichever is later. Generally, a
motion to reconsider must be filed not later than 30 days after the
date on which the final administrative decision was rendered on or
before July 31, 1996 whichever is later. The rule also provides that a
notice of appeal will be timely if filed within 30 days of the issuance
of an Immigration Judge's decision. The Department notes that the new
30-day period for filing appeals and the provisions for filing appeals
directly with the Board apply to Immigration Judge decisions issued on
or after the effective date of the final rule. Therefore, the old
regulation's 10-day period (13 days if the appeal is mailed) for filing
appeals and provisions for filing appeals with the Immigration Courts
apply to Immigration Judge decisions issued before the effective date
of this rule.
The rule outlines the required content of motions and notices of
appeal, and requires parties to file or remit directly with the Board
of Immigration Appeals (``Board''): (1) All motions to reopen and
motions to reconsider decisions of the Board pertaining to proceedings
before Immigration Judges; (2) all notices of appeals of decisions of
Immigration Judges; and (3) all relevant fees or fee waiver requests.
Furthermore, the rule addresses the definition of the term ``lawfully
admitted for permanent residence,'' the procedure for certifying a case
to the Board, and appeals of in absentia decisions. The Department
notes that the field sites of the Executive Office for Immigration
Review (``EOIR''), formerly referred to as the Offices of the
Immigration Judges, are now called Immigration Courts.
The Department of Justice has published a number of proposed rules
addressing both the motion practice and the appeals process before the
Board. Most recently, the Department published a proposed rule
regarding these procedures in May 1995 that incorporated and expanded
proposed rules published in May and June 1994. 60 FR 24573 (May 9,
1995); 59 FR 29386 (June 7, 1994); 59 FR 24977 (May 13, 1994).
In response to the above rulemakings, the Department received 71
comments. The comments addressed a number of issues, including the
definition of the term ``lawfully admitted for permanent residence,''
the time and number limitations on motions to reopen and reconsider,
the availability of an appeal where an order has been entered in
absentia (particularly in exclusion proceedings), the streamlined
appeals procedure, and the construction of briefing schedules for both
motions and appeals.
The Department has carefully considered and evaluated the issues
raised by the commenters and has modified the rule considerably. The
following sections summarize the comments, set forth the responses of
the Department of Justice, and explain the final provisions adopted. We
note that a number of technical corrections were made to the proposed
rule. These corrections include the addition of 8 U.S.C. 1282, 31
U.S.C. 9701 and 8 CFR part 2 to the authority citation for Part 208 and
the addition of 8 U.S.C. 1252a to the authority citation for Part 242.
(1) Definition of Lawful Permanent Resident--Section 1.1(p)
Comment: Some commenters objected that the definition of the term
``lawfully admitted for permanent residence'' in section 1.1(p)
provides that lawful permanent resident status terminates upon the
entry of a final administrative order of exclusion or deportation. They
argued that lawful permanent resident status is not deemed to be
terminated during the pendency of petitions for review, motions to
reopen and/or reconsider, and habeas corpus proceedings, citing cases
in the United States Courts of Appeal for the Ninth and Second
Circuits. Butros v. INS, 990 F.2d 1142 (9th Cir. 1993); Vargas v. INS,
938 F.2d 358 (2d Cir. 1991). In those cases, the courts held that under
the regulations regarding motions to reopen, lawful permanent resident
status could not be terminated prior to the alien's actual physical
departure from the United States.
Response and Disposition: After careful consideration, the
Department has decided to retain the regulation as previously proposed.
The finding that lawful permanent resident status terminates upon the
entry of a final administrative order of exclusion or deportation was
established by the Board in Matter of Lok, 18 I&N Dec. 101 (BIA 1981).
The Lok rule has been upheld by courts of appeals in at least four
circuits and provides finality in immigration proceedings. See
Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993); Katsis v. INS, 997 F.2d
1067 (3d Cir. 1993), cert denied, 114 S.Ct. 902 (1994); Variamparambil
v. INS, 831 F.2d 1362 (7th Cir. 1987); Rivera v. INS, 810 F.2d 540 (5th
Cir. 1987). In addition, the Ninth Circuit recently held that where
deportability is not contested, lawful permanent resident status for
purposes of an application for a waiver under section 212(c) of the
Immigration and Nationality Act (``Act'') terminates upon the entry of
an administratively final order of exclusion or deportation. Foroughi
v. INS, 60 F.3d 510 (9th Cir. 1995).
The decisions in Butros and Vargas were tied closely to the former
regulations regarding motions. In Butros, the court emphasized that the
former section 3.2 was written very broadly and concluded that since
the only expressed barrier to reopening or reconsideration contained in
the regulation was actual departure from the United States, the Board
could not by decision limit the right to reopening. However, the court
specifically provided that the ``Board could, no doubt, alter this
regulation'' to allow
[[Page 18901]]
further restrictions. 990 F.2d. at 1144. In Vargas, the Second Circuit
also found that the former regulations preserved an alien's right to
move for reopening until the occurrence of physical deportation. The
court reasoned that, although the Board's decision in Lok prevented
reopening by an alien who had not accrued the required seven years
prior to a final administrative order of deportation, the Second
Circuit would not allow the Board, through the denial of a motion, to
extend the Lok rationale to terminate an alien's previously existing
eligibility for section 212(c) relief. 938 F.2d at 361. This final rule
addresses the ambiguity of the regulatory language noted in the Second
and Ninth Circuit decisions by establishing clear limits on the ability
to file a motion to reopen and the concomitant effect on the alien's
status as a lawful permanent resident. The definition at section 1.1
will be applied nationwide, which will promote the goal of uniform
application of the immigration laws.
Sections 3.2(c)(1) and 3.23(b)(4) are further amended to clarify
that, notwithstanding the provisions of section 1.1(p) of this chapter,
if an alien accrues the seven years of lawful unrelinquished domicile
necessary for eligibility for a waiver under section 212(c) of the Act
prior to the entry of an administratively final order of exclusion or
deportation, he or she may file a motion to reopen for consideration or
further consideration of such an application. An alien may not accrue
time toward the seven years of lawful unrelinquished domicile required
for section 212(c) purposes after the entry of a final administrative
order of exclusion or deportation.
(2) Motions To Reopen--Sections 3.2 and 3.23
Comment: Commenters noted that motions to reopen can serve any of
three fundamental purposes: (i) to provide an opportunity to bring new
evidence to light; (ii) to allow parties to avail themselves of recent
changes in the law; and (iii) to provide an opportunity for an
applicant to seek additional relief that was not previously available.
Given those purposes, commenters objected to the rule's time and number
limitations on motions to reopen.
The May 1995 proposed rule expanded the filing period for motions
to reopen from 20 days to 90 days. Commenters stated that this period
was insufficient to fulfill the purposes of motions to reopen as set
forth above. Commenters advocated either the elimination of any defined
filing period for motions to reopen or further expansion of the filing
period. In support of this position, they cited to a study conducted by
the Attorney General in 1991 (``AG Study''), see summary at 68
INTERPRETER RELEASES No. 27 at 907 (July 22, 1991), which concluded
that there was no abuse of the motions process. From this conclusion,
commenters disputed the necessity for any reform of the motions
process. A number of commenters alternatively requested that a ``good
cause'' exception to the time and number limitations be added to the
new provisions concerning motions to reopen.
Some commenters requested clearer language in section 3.2(c)(4)
regarding the motions to reopen and motions to remand provision.
Particularly, commenters were concerned that the rule required, rather
than permitted, the Board to remand a motion to reopen to an
Immigration Judge or a Service Officer when an appeal had already been
filed. Commenters advocated a rule that would expressly state that the
Board had discretion to render a decision on a motion to reopen without
remanding the motion.
Response and Disposition: After careful consideration, the
Department has decided to retain both the time and the number
limitations applicable to motions to reopen. The provision instituting
motions reform is statutorily required. The Immigration Act of 1990,
Pub. L. No. 101-649, 104 stat. 4978 (1990), states that ``the Attorney
General shall issue regulations with respect to * * * the period of
time in which motions to reopen and to reconsider may be offered in
deportation proceedings, which regulations shall include a limitation
on the number of such motions that may be filed and a maximum time
period for the filing of such motions.'' Immigration Act of 1990 at
Sec. 545(d), 104 stat. at 5066. The Joint Explanatory Statement of the
Committee of Conference, H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess.
(1990) (``Conference Report''), explained this provision as follows:
``Unless the Attorney General finds reasonable evidence to the
contrary, the regulations should state that such motions be made within
20 days of the date of the final determination in the proceeding and
that such motions be limited to one motion to reopen and one motion to
reconsider.'' H.R. Conf. Rep. No. 955 at 133.
Some commenters argued that the Conference Report suggested that
the Attorney General has discretion to not promulgate the regulations
if she ``finds reasonable evidence to the contrary.'' However, the
Department of Justice believes that the statutory directive to
promulgate regulations limiting motions to reopen is mandatory. The
Attorney General is only given discretion to determine the number of
motions and the length of time to file such motions. It does not give
the Attorney General discretion to determine whether to promulgate a
rule putting limitations on motions.
Moreover, in a recent case, the Supreme Court noted that the
Immigration Act of 1990, which amended the Act, demonstrated a
congressional intent to ``expedite petitions for review and to redress
the related problem of successive and frivolous administrative appeals
and motions.'' Stone v. INS, 115 S.Ct. 1537, 1546 (1995). Justice
Kennedy, writing for the majority, stated:
Congress' intent in adopting and then amending the Act was to
expedite both the initiation and the completion of the judicial
review process. * * * [A] principal purpose of the 1990 amendments
to the Act was to expedite petitions for review and to redress the
related problem of successive and frivolous administrative appeals
and motions. In the Immigration Act of 1990, Congress * * * [f]irst
* * * directed the Attorney General to promulgate regulations
limiting the number of reconsideration and reopening motions that an
alien could file. Sec. 545(b). Second, it instructed the Attorney
General to promulgate regulations specifying the maximum time period
for the filing of those motions, hinting that a 20-day period would
be appropriate.
Stone v. INS, 115 S.Ct. at 1546 (emphasis supplied).
Although the AG Study concluded that there was not significant
abuse of the process, Congress has neither rescinded or amended its
mandate to limit the number and time frames of motions. Therefore, the
Attorney General's obligation to comply with Congress' statutory
directive is unaffected by the conclusions of the AG Study.
Prior to the final rulemaking, provisions concerning a time limit
for filing motions to reopen were published twice in proposed form. See
60 FR 24573 (May 9, 1995) and 59 FR 29386 (June 7, 1994). Consonant
with the Conference Report, the first proposed rule provided for a 20-
day time frame to file a motion. The Department received considerable
comment regarding the 1994 proposed rule. In response to the arguments
raised by the commenters, the May 1995 proposed rule provided for an
expanded 90-day time frame to file motions to reopen. The Department
received considerable comment in response to the May 1995 proposed
rule, with many commenters arguing that even the 90-day time frame was
[[Page 18902]]
inadequate for the reasons previously stated.
After carefully weighing all of the comments, the Department has
decided to retain the amount of time to file a motion to reopen at 90
days as provided in the May 1995 proposed rule. The 90-day time period
represents a considerable extension beyond the 20 days suggested in the
Conference Report. A time frame of 90 days for filing motions to reopen
will provide parties an opportunity to avail themselves of changed law,
facts, and circumstances. By setting a time limitation and retaining
the one motion limitation, the rule is consistent with section 545 of
the Immigration Act of 1990 and the directions of the Conference
Report. The 90-day time period also conforms to the period provided in
section 106(a) of the Act for filing a petition for review in federal
court from a final order of deportation (except, of course, for aliens
convicted of an aggravated felony who are limited to 30 days in which
to file a petition for review). Therefore, the 90-day period is likely
to promote consolidation of petitions for review of final orders of
deportation and motions, thereby increasing judicial efficiency.
The Department does not agree with the commenters' suggestions that
a ``good cause exception'' would be an appropriate procedural mechanism
for addressing exceptional cases that fall beyond this rule's time and
number limitations. Instead, section 3.2(a) of the rule provides a
mechanism that allows the Board to reopen or reconsider sua sponte and
provides a procedural vehicle for the consideration of cases with
exceptional circumstances.
The final rule corrects a technical error found in the May 1995
proposed rule regarding stays of deportation. In that proposed rule,
section 3.2(f) indicated that except where a motion is filed pursuant
to the provisions of section 3.23(b)(5), the filing of a motion to
reopen shall not stay the execution of any decision. This language is
identical to that found in the prior June 1994 proposed rule. However,
because of renumbering in the May 1995 proposed rule, section 3.2(f)
should have referenced section 3.23(b)(6), not section 3.23(b)(5) to
remain consistent. This oversight has been corrected although the
section numbering has again changed. The correct cross reference in the
final rule has become section 3.23(b)(4)(iii).
The Department has clarified the language of section 3.2(c)(4) by
replacing the word ``shall'' in the May 1995 proposed regulation with
the word ``may'' in the final rule. This language expressly recognizes
the Board's discretion to decide whether to treat a motion to reopen as
a motion to remand when it is filed at specified procedural junctures,
i.e., at the time of the filing of an appeal or during the pendency of
such an appeal but prior to a final Board decision. In such instances,
motions to remand are not subject to the time and number limitations on
motions to reopen and motions to reconsider as they occur before the
entry of a final administrative decision. For that reason, the final
rule drops the technically incorrect time and number limitation
language that appeared in the proposed rule. However, this provision
does not limit the Board's discretion to resolve a case without
remanding it.
In order to provide more consistency and uniformity in appellate
procedures, section 3.2(g)(3), regarding the motions briefing schedule,
has been changed to provide the opposing party 13 days from the date of
service of the motion to file a brief in opposition to a motion,
regardless of whether the motion is before the Board or the Service.
(3) Motions To Reconsider--Sections 3.2 and 3.23
Comment: A number of commenters objected to section 3.2(b) of the
May 1995 proposed rule, which allowed a petitioner to file only one
motion to reconsider within 30 days of the final administrative
decision, as unduly restrictive. The proposed 30-day filing period was
increased from the 20-day filing period of the June 1994 proposed rule.
However, commenters stated that even the 30-day time limit would work a
hardship on litigants, particularly pro se litigants. Furthermore, they
stated that the time limit might cut off meritorious claims. Some
commenters found the 30-day time limit adequate.
Some commenters argued that the AG Study supported the contention
that reform of the immigration motions process is unnecessary. They
also disputed that motion reform was mandated by the Immigration Act of
1990.
Response and Disposition: The final rule retains the proposed
rule's provisions regarding the time and number limitations on motions
to reconsider. The Department believes that these provisions afford
parties a sufficient opportunity to seek reexamination of certain
issues and also respond to the mandates of the Immigration Act of 1990
to impose time and number limitations on motions.
The purpose of a motion to reconsider a decision is to provide an
opportunity to reexamine the facts or to correct an error of law. The
time limitation ensures that such reexamination occurs before the facts
surrounding the decision become stale. The Department believes that the
30-day time frame is an appropriate time period to meet those goals.
Furthermore, it provides parties a sufficient amount of time to draft
and file the motion and is consistent with the 30-day time frame for
filing a notice of appeal. To make it clearer and more accessible to
the parties, section 3.23 has been reorganized.
(4) New Appeal Filing Procedures--Sections 3.3, 3.8, 3.38, 242.21 and
246.7
Comment: The vast majority of the commenters applauded the proposal
to streamline and centralize the appeal process. They were particularly
pleased that the notice of appeal and the fees/fee waiver requests
would be filed directly with the Board. However, commenters were
concerned that the requirement to provide a detailed statement of the
reasons for appeal in the notice of appeal essentially required an
appellant to argue his or her case prematurely. They suggested that
this requirement would be particularly burdensome to pro se and non-
English speaking appellants.
Commenters objected to the proposed time frames for filing notices
of appeal. Specifically, they stated that a period of 15 calendar days
from the issuance of an Immigration Judge's decision, where the
decision is rendered orally, and 20 calendar days from the mailing of
an Immigration Judge's decision, where a written decision is served by
mail, was too little time, particularly in light of the notice of
appeal's detailed statement requirement and delays in the mail service.
Commenters further argued that the appeals briefing schedule
provision, which accords non-detained aliens 30 days to file a brief
and detained aliens 14 days to file a brief, was inequitable and
fundamentally unfair because it treated two classes of appellants
differently. They also noted that the rule created a particular
hardship for detained appellants who, because of the fact of their
detention, have difficulty meeting filing deadlines. The commenters
were further concerned that the rule could be understood to require
parties to file briefs prior to receipt of the transcript.
Response and Disposition: The final rule retains the provisions
that streamline and centralize the appeals process. As outlined in the
proposed rule and republished in the final rule, the new appeals system
requires parties to file all notices of appeal of decisions of
Immigration Judges and all fee-related documents directly with the
Board. The
[[Page 18903]]
final rule has been amended to provide that a notice of appeal must be
filed within 30 calendar days after the mailing of an Immigration
Judge's written decision or within 30 days of the stating of an
Immigration Judge's oral decision. The time frame has been increased in
order to address concerns raised both by the circuit courts of appeals
and the commenters regarding the sufficiency of time to initiate the
appellate process. In keeping with the Department's goal of
streamlining the appeals process, the rule provides a uniform filing
process, whether the Immigration Judge's decision was rendered orally
or was written and served by mail.
The new process addresses concerns, identified by the Ninth
Circuit, about both the prior 10-day filing time period for appeals and
the requirement that parties remit the fee in one forum and file the
notice of appeal in another. See Gonzales-Julio v. INS, 34 F. 3d 820
(9th Cir. 1994); Vlaicu v. INS, 998 F. 2d 758 (9th Cir. 1993). This
final rule responds to those concerns by expanding the filing time for
appeal to 30 days and by requiring that the notice of appeal and the
fee be filed at the same place and time.
Additionally, the final rule makes uniform the briefing schedule
for both detained and non-detained appellants. Although the proposed
rule never anticipated requiring parties to submit a brief prior to
transcript availability in those cases which are transcribed, the final
rule contains clarifying language to that effect.
The Department has retained the requirement that parties
specifically identify their reasons for appeal on the notice of appeal.
The Board has repeatedly found this statement provides meaningful
information that aids the Board's review of the cases. Matter of
Valencia, 19 I&N Dec. 354 (BIA 1986); Matter of Holguin, 13 I&N Dec.
423 (BIA 1969). Furthermore, the statement requirement has been
consistently upheld by the circuit courts. Soriano v. INS, 45 F.3d 287
(8th Cir. 1995); Nazakat v. INS, 981 F.2d 1146 (10th Cir. 1992);
Toquero v. INS, 956 F.2d 193 (9th Cir. 1992); Lozada v. INS, 857 F.2d
10 (1st Cir. 1988); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir. 1987);
Townsend v. INS, 799 F.2d 179 (5th Cir. 1986).
A new paragraph ``(e)'' has been added to section 3.38 to inform
aliens that they are required to notify the Board within five working
days of any changes of address or telephone number and to inform the
aliens' representatives that changes in a representative's business
mailing address or telephone number also should be submitted to the
Board. The change of address and telephone number notification
requirement mirrors the reporting requirements in section 3.15 relating
to proceedings before Immigration Judges. Additionally, the Department
will issue a new Appeal Fee Waiver Request Form (EOIR-26A) in
conjunction with the enactment of this final rule. Parties unable to
pay the fee fixed for an appeal will be required to file this form with
their notice of appeal. The Department notes that this constitutes a
change from the Board's past practice of accepting in pauperis
affidavits and other informal requests to waive fees. The new Appeal
Fee Waiver Request (Form EOIR-26A) will provide a uniform mechanism for
requesting the Board to waive an appeal fee.
(5) In Absentia Hearings--Sections 3.1, 3.23 and 242.21
Comments: Commenters correctly asserted that section 242B(c) of the
Act regarding in absentia hearings applies only to deportation
proceedings. Therefore, they argued, a provision disallowing appeals
from orders of exclusion entered in absentia lacks statutory authority.
Commenters noted that the statute does not authorize in absentia
exclusion hearings and advocated the withdrawal of the provision that
provides for such hearings.
One commenter suggested that the in absentia hearing provisions in
section 242B restrict only motions to reopen and judicial review and do
not bar the timely filing of a notice of appeal on the merits of the
case where a respondent receives notification of the in absentia order
prior to expiration of the time to file an appeal. The commenter
advocated allowing direct appeals under such circumstances.
Commenters also objected to section 3.23(b)(4)(iii), formerly
section 3.23(b)(6), which specifies under what circumstances an order
of deportation entered in absentia may be rescinded. They noted that
the rule makes no provision for rescission of an order of exclusion
entered in absentia.
Response and Disposition: With regard to in absentia hearings under
section 242B(c) of the Act, the commenters are correct that the statute
only applies to deportation hearings and does not apply to in absentia
exclusion hearings and, further, that appeals from orders entered
following such exclusion hearings should be allowed. Therefore, the
provision in section 3.1(b)(1) of the proposed regulation that stated
that ``no appeal shall lie from an order of exclusion entered in
absentia'' has been removed. An appeal from an order of exclusion
entered in absentia is permissible but must be filed within the time
limit for appeals set by section 3.38(b).
Further, an alien may file a motion to reopen exclusion proceedings
to rescind an order of exclusion entered in absentia. Such a motion
must be supported by evidence that the alien had reasonable cause for
his failure to appear at the exclusion hearing. This provision is
consistent with the Board's decision in Matter of Haim, 19 I&N Dec. 641
(BIA 1988).
The rule retains the provision prohibiting an appeal to the Board
from an Immigration Judge's order of deportation entered in absentia.
Congress restricted review of deportation orders entered in absentia in
section 242B of the Act by providing that such orders may only be
rescinded by filing a motion to reopen with the Immigration Judge. See
section 242B(c)(1) of the Act; Matter of Gonzalez-Lopez, Interim
Decision #3198 (BIA 1993). Further, the Board has confirmed that
sections 3.1(b) and 3.3 allow an alien to appeal to the Board from an
Immigration Judge's denial of such a motion to reopen an in absentia
decision. Matter of Gonzales-Lopez at 4.
In addition to restricting the manner in which an in absentia order
of deportation may be rescinded, Congress delayed eligibility for most
forms of relief from deportation for an alien against whom a final
order of deportation is entered in absentia. See section 242B(e) of the
Act. Specifically, where the alien fails to demonstrate improper notice
or exceptional circumstances for failing to appear, the alien must wait
until five years after the final order of deportation to apply for
relief such as voluntary departure, suspension of deportation, or
adjustment of status. Accordingly, the Department has determined that a
bar against direct appeals from an in absentia deportation order of an
Immigration Judge to the Board is consistent with the restrictive
action Congress has taken towards such in absentia orders.
The Department considered the commenters' request for an appeal to
the Board on the merits of a deportation case in which an in absentia
order has been entered. However, we note that there exists the
opportunity for review of such an order in the federal courts. Section
106 of the Act provides for judicial review of final orders of
deportation including those entered in absentia. Specifically, section
242(B)(c)(4) allows for judicial review of an order entered in absentia
under
[[Page 18904]]
section 242B, regarding the validity of the notice provided to the
alien, the reasons for the alien's failure to appear, and the question
of whether the Service demonstrated deportability by clear, convincing,
and unequivocal evidence. Further, section 106(a)(5) of the Act allows
for the direct de novo review of a final administrative order of
deportation in federal district court, including one entered in
absentia, where the alien makes a non-frivolous claim to be a national
of the United States. In sum, given Congress' restrictive stance in
section 242B of the Act regarding review of orders of deportation
entered in absentia and in light of the fact that avenues still exist
for review in federal court of such orders, the Department has retained
the bar on direct appeals to the Board from an Immigration Judge's
order of deportation entered in abstentia.
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b). The Attorney General has
determined that this rule is not a significant regulatory action under
Executive Order 12866, section 3(f), and, accordingly, this rule has
not been reviewed by the Office of Management and Budget.
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities.
This final rule will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 12612, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
List of Subjects
8 CFR Part 1
Administrative practice and procedure, Immigration.
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
record keeping requirements, Surety bonds.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and record keeping requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and record keeping requirements.
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 246
Administrative practice and procedure, Aliens, Immigration.
Accordingly, Chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 1--DEFINITIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 66 Stat. 173; 8 U.S.C. 1101; 28 U.S.C. 509, 510; 5
U.S.C. 301.
2. Section 1.1 is amended by adding a new paragraph (p) to read as
follows:
Sec. 1.1 Definitions.
* * * * *
(p) The term lawfully admitted for permanent residence means the
status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed. Such status
terminates upon entry of a final administrative order of exclusion or
deportation.
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
3. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362;
28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR,
1949-1953 Comp., p. 1002.
4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),
and (c) to read as follows:
Sec. 3.1 General authorities.
* * * * *
(b) * * *
(1) Decisions of Immigration Judges in exclusion cases, as provided
in part 236 of this chapter.
(2) Decisions of Immigration Judges in deportation cases, as
provided in part 242 of this chapter, except that no appeal shall lie
from an order of deportation entered in absentia. No appeal shall lie
from an order of an Immigration Judge under Sec. 244.1 of this chapter
granting voluntary departure within a period of at least 30 days, if
the sole ground of appeal is that a greater period of departure time
should have been fixed.
* * * * *
(c) Jurisdiction by certification. The Commissioner, or any other
duly authorized officer of the Service, any Immigration Judge, or the
Board may in any case arising under paragraph (b) of this section
certify such case to the Board. The Board in its discretion may review
any such case by certification without regard to the provisions of
Sec. 3.7 if it determines that the parties have already been given a
fair opportunity to make representations before the Board regarding the
case, including the opportunity request oral argument and to submit a
brief.
* * * * *
5. Section 3.2 is revised to read as follows:
Sec. 3.2 Reopening or reconsideration.
(a) General. The Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision. A request to
reopen or reconsider any case in which a decision has been made by the
Board, which request is made by the Service, or by the party affected
by the decision, must be in the form of a written motion to the Board.
The decision to grant or deny a motion to reopen or reconsider is
within the discretion of the Board, subject to the restrictions of this
section. The Board has discretion to deny a motion to reopen even if
the party moving has made out a prima facie case for relief.
(b) Motion to reconsider. (1) A motion to reconsider shall state
the reasons for the motion by specifying the errors of fact or law in
the prior Board decision and shall be supported by pertinent authority.
A motion to reconsider a decision rendered by an Immigration Judge or
Service officer that is pending when an appeal is filed with the Board,
or that is filed subsequent to the filing with the Board of an appeal
from the decision sought to be reconsidered, shall be deemed a motion
to remand the decision for further proceedings before the Immigration
Judge or the Service officer from whose decision the appeal was taken.
Such motion, which shall be consolidated with and considered by the
Board in connection with any appeal to the Board, is subject to the
time and numerical limitations of paragraph (b)(2) of this section.
(2) A motion to reconsider a decision must be filed with the Board
within 30
[[Page 18905]]
days after the mailing of the Board decision or on or before July 31,
1996, whichever is later. A party may file only one motion to
reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider.
(c) Motion to reopen. (1) A motion to reopen proceedings shall
state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other
evidentiary material. A motion to reopen proceedings for the purpose of
submitting an application for relief must be accompanied by the
appropriate application for relief and all supporting documentation. A
motion to reopen proceedings shall not be granted unless it appears to
the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former
hearing; nor shall any motion to reopen for the purpose of affording
the alien an opportunity to apply for any form of discretionary relief
be granted if it appears that the alien's right to apply for such
relief was fully explained to him or her and an opportunity to apply
therefore was afforded at the former hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the
hearing. Subject to the other requirements and restrictions of this
section, and notwithstanding the provisions in Sec. 1.1(p) of this
chapter, a motion to reopen proceedings for consideration or further
consideration of an application for relief under section 212(c) of the
Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he
or she was statutorily eligible for such relief prior to the entry of
the administratively final order of deportation.
(2) Except as provided in paragraph (c)(3) of this section, a party
may file only one motion to reopen proceedings (whether before the
Board or the Immigration Judge) and that motion must be filed not later
than 90 days after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened, or on or before
September 30, 1996, whichever is later.
(3) The time and numerical limitations set forth in paragraph
(c)(2) of this section shall not apply to a motion to reopen
proceedings:
(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii);
(ii) To apply or reapply for asylum, or withholding of deportation,
based on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered, if such evidence
is material and was not available and could not have been discovered or
presented at the former hearing; or
(iii) Agreed upon by all parties and jointly filed. Notwithstanding
such agreement, the parties may contest the issues in a reopened
proceeding.
(4) A motion to reopen a decision rendered by an Immigration Judge
or Service officer that is pending when an appeal is filed, or that is
filed while an appeal is pending before the Board, may be deemed a
motion to remand for further proceedings before the Immigration Judge
or the Service officer from whose decision the appeal was taken. Such
motion may be consolidated with, and considered by the Board in
connection with, the appeal to the Board.
(d) Departure or deportation. A motion to reopen or a motion to
reconsider shall not be made by or on behalf of a person who is the
subject of deportation or exclusion proceedings subsequent to his or
her departure from the United States. Any departure from the United
States, including the deportation of a person who is the subject of
deportation or exclusion proceedings, occurring after the filing of a
motion to reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.
(e) Judicial proceedings. Motions to reopen or reconsider shall
state whether the validity of the deportation or exclusion order has
been or is the subject of any judicial proceeding and, if so, the
nature and date thereof, the court in which such proceeding took place
or is pending, and its result or status. In any case in which a
deportation or exclusion order is in effect, any motion to reopen or
reconsider such order shall include a statement by or on behalf of the
moving party declaring whether the subject of the order is also the
subject of any pending criminal proceeding under section 242(e) of the
Act (8 U.S.C. 1252(e)), and, if so, the current status of that
proceeding. If a motion to reopen or reconsider seeks discretionary
relief, the motion shall include a statement by or on behalf of the
moving party declaring whether the alien for whose relief the motion is
being filed is subject to any pending criminal prosecution and, if so,
the nature and current status of that prosecution.
(f) Stay of deportation. Except where a motion is filed pursuant to
the provisions of Sec. 3.23(b)(4)(iii), the filing of a motion to
reopen or a motion to reconsider shall not stay the execution of any
decision made in the case. Execution of such decision shall proceed
unless a stay of execution is specifically granted by the Board, the
Immigration Judge, or an authorized officer of the Service.
(g) Filing procedures. (1) English language, entry of appearance,
and proof of service requirements. A motion and any submission made in
conjunction with a motion must be in English or accompanied by a
certified English translation. If the moving party, other than the
Service, is represented, a Notice of Entry of Appearance as Attorney or
Representative Before the Board (Form EOIR-27) must be filed with the
motion. In all cases, the motion shall include proof of service on the
opposing party of the motion and all attachments.
(2) Distribution of motion papers. (i) A motion to reopen or motion
to reconsider a decision of the Board pertaining to proceedings before
an Immigration Judge shall be filed directly with the Board. Such
motion must be accompanied by a check, money order, or fee waiver
request in satisfaction of the fee requirements of Sec. 3.8. The record
of proceeding pertaining to such a motion shall be forwarded to the
Board upon the request or order of the Board.
(ii) A motion to reopen or a motion to reconsider a decision of the
Board pertaining to a matter initially adjudicated by an officer of the
Service shall be filed with the officer of the Service having
administrative control over the record of proceeding.
(iii) If the motion is made by the Service in proceedings in which
the Service has administrative control over the record of proceedings,
the record of proceedings in the case and the motion shall be filed
directly with the Board. If such motion is filed directly with an
office of the Service, the entire record of proceeding shall be
forwarded to the Board by the Service officer promptly upon receipt of
the briefs of the parties, or upon expiration of the time allowed for
the submission of such briefs.
(3) Briefs and response. The moving party may file a brief if it is
included with the motion. If the motion is filed directly with the
Board pursuant to paragraph (g)(2)(i) of this section, the opposing
party shall have 13 days from the date of service of the motion to file
a brief in opposition to the motion directly with the Board. If the
motion is filed with an office of the Service pursuant to paragraph
(g)(2)(ii) of this section, the opposing party shall have 13 days from
the date of filing of the motion to file a brief in opposition to the
motion directly with the office of the Service. In all cases, briefs
and any other filings made in conjunction with a motion shall include
proof of service on the opposing party. The Board, in its
[[Page 18906]]
discretion, may extend the time within which such brief is to be
submitted and may authorize the filing of a brief directly with the
Board. A motion shall be deemed unopposed unless a timely response is
made. The Board may, in its discretion, consider a brief filed out of
time.
(h) Oral argument. A request for oral argument, if desired, shall
be incorporated in the motion to reopen or reconsider. The Board, in
its discretion, may grant or deny requests for oral argument.
(i) Ruling on motion. Rulings upon motions to reopen or motions to
reconsider shall be by written order. If the order directs a reopening
and further proceedings are necessary, the record shall be returned to
the Immigration Court or the officer of the Service having
administrative control over the place where the reopened proceedings
are to be conducted. If the motion to reconsider is granted, the
decision upon such reconsideration shall affirm, modify, or reverse the
original decision made in the case.
6. Section 3.3 is revised to read as follows:
Sec. 3.3 Notice of appeal.
(a) Filing. (1) Appeal from decision of an Immigration Judge. A
party affected by a decision who is entitled under this chapter to
appeal to the Board from a decision of an Immigration Judge shall be
given notice of his or her right to appeal. An appeal from a decision
of an Immigration Judge shall be taken by filing a Notice of Appeal to
the Board of Immigration Appeals of Decision of Immigration Judge (Form
EOIR-26) directly with the Board, within the time specified in the
governing sections of this chapter. The appealing parties are only
those parties who are covered by the decision of an Immigration Judge
and who are specifically named on the Notice of Appeal. The appeal must
be accompanied by a check, money order, or fee waiver request in
satisfaction of the fee requirements of Sec. 3.8. If the respondent/
applicant is represented, a Notice of Entry of Appearance as Attorney
or Representative Before the Board (Form EOIR-27) must be filed with
the Notice of Appeal. The appeal must reflect proof of service of a
copy of the appeal and all attachments on the opposing party. The
appeal and all attachments must be in English or accompanied by a
certified English translation. An appeal is not properly filed unless
it is received at the Board, along with all required documents, fees or
fee waiver requests, and proof of service, within the time specified in
the governing sections of this chapter. A notice of appeal may not be
filed by any party who has waived appeal pursuant to Sec. 3.39.
(2) Appeal from decision of a Service officer. A party affected by
a decision who is entitled under this chapter to appeal to the Board
from a decision of a Service officer shall be given notice of his or
her right to appeal. An appeal from a decision of a Service officer
shall be taken by filing a Notice of Appeal to the Board of Immigration
Appeals of Decision of District Director (Form EOIR-29) directly with
the office of the Service having administrative control over the record
of proceeding within the time specified in the governing sections of
this chapter. The appeal must be accompanied by a check, money order,
or fee waiver request in satisfaction of the fee requirements of
Sec. 3.8 and, if the appellant is represented, a Notice of Entry of
Appearance as Attorney or Representative Before the Board (Form EOIR-
27). The appeal and all attachments must be in English or accompanied
by a certified English translation. An appeal is not properly filed
until its receipt at the appropriate office of the Service, together
with all required documents and fees, and the fee provisions of
Sec. 3.8 are satisfied.
(b) Statement of the basis of appeal. The party taking the appeal
must identify the reasons for the appeal in the Notice of Appeal (Form
EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to
avoid summary dismissal pursuant to Sec. 3.1(d)(1-a)(i). The statement
must specifically identify the findings of fact, the conclusions of
law, or both, that are being challenged. If a question of law is
presented, supporting authority must be cited. If the dispute is over
the findings of fact, the specific facts contested must be identified.
Where the appeal concerns discretionary relief, the appellant must
state whether the alleged error relates to statutory grounds of
eligibility or to the exercise of discretion and must identify the
specific factual and legal finding or findings that are being
challenged. The appellant must also indicate in the Notice of Appeal
(Form EOIR-26 or Form EOIR-29) whether he or she desires oral argument
before the Board and whether he or she will be filing a separate
written brief or statement in support of the appeal.
(c) Briefs. (1) Appeal from decision of an Immigration Judge.
Briefs in support of or in opposition to an appeal from a decision of
an Immigration Judge shall be filed directly with the Board. In those
cases that are transcribed, the briefing schedule shall be set by the
Board after the transcript is available. An appellant shall be provided
30 days in which to file a brief, unless a shorter period is specified
by the Board. The appellee shall have the same period of time in which
to file a reply brief that was initially granted to the appellant to
file his or her brief. The time to file a reply brief commences from
the date upon which the appellant's brief was due, as originally set or
extended by the Board. The Board, upon written motion, may extend the
period for filing a brief or a reply brief for up to 90 days for good
cause shown. In its discretion, the Board may consider a brief that has
been filed out of time. All briefs, filings, and motions filed in
conjunction with an appeal shall include proof of service on the
opposing party.
(2) Appeal from decision of a Service officer. Briefs in support of
or in opposition to an appeal from a decision of a Service officer
shall be filed directly with the office of the Service having
administrative control over the file in accordance with a briefing
schedule set by that office. The alien shall be provided 30 days in
which to file a brief, unless a shorter period is specified by the
Service officer from whose decision the appeal is taken. The Service
shall have the same period of time in which to file a reply brief that
was initially granted to the alien to file his or her brief. The time
to file a reply brief commences from the date upon which the alien's
brief was due, as originally set or extended. Upon written request of
the alien, the Service officer from whose decision the appeal is taken
or the Board may extend the period for filing a brief for good cause
shown. The Board may authorize the filing of briefs directly with the
Board. In its discretion, the Board may consider a brief that has been
filed out of time. All briefs and other documents filed in conjunction
with an appeal, unless filed by an alien directly with a Service
office, shall include proof of service on the opposing party.
(d) Effect of certification. The certification of a case, as
provided in this part, shall not relieve the party affected from
compliance with the provisions of this section in the event that he or
she is entitled and desires to appeal from an initial decision, nor
shall it serve to extend the time specified in the applicable parts of
this chapter for the taking of an appeal.
(e) Effect of departure from the United States. Departure from the
United States of a person who is the subject of deportation
proceedings, prior to the taking of an appeal from a decision in his or
her case, shall constitute a waiver of his or her right to appeal.
7. Section 3.4 is revised to read as follows:
[[Page 18907]]
Sec. 3.4 Withdrawal of appeal.
In any case in which an appeal has been taken, the party taking the
appeal may file a written withdrawal thereof with the office at which
the notice of appeal was filed. If the record in the case has not been
forwarded to the Board on appeal in accordance with Sec. 3.5, the
decision made in the case shall be final to the same extent as if no
appeal had been taken. If the record has been forwarded on appeal, the
withdrawal of the appeal shall be forwarded to the Board and, if no
decision in the case has been made on the appeal, the record shall be
returned and the initial decision shall be final to the same extent as
if no appeal had been taken. If a decision on the appeal has been made
by the Board in the case, further action shall be taken in accordance
therewith. Departure from the United States of a person who is the
subject of deportation proceedings subsequent to the taking of an
appeal, but prior to a decision thereon, shall constitute a withdrawal
of the appeal, and the initial decision in the case shall be final to
the same extent as though no appeal had been taken.
8. Section 3.5 is revised to read as follows:
Sec. 3.5 Forwarding of record on appeal.
(a) Appeal from decision of an Immigration Judge. If an appeal is
taken from a decision of an Immigration Judge, the record of proceeding
shall be forwarded to the Board upon the request or the order of the
Board.
(b) Appeal from decision of a Service officer. If an appeal is
taken from a decision of a Service officer, the record of proceeding
shall be forwarded to the Board by the Service officer promptly upon
receipt of the briefs of the parties, or upon expiration of the time
allowed for the submission of such briefs. A Service officer need not
forward such an appeal to the Board, but may reopen and reconsider any
decision made by the officer if the new decision will grant the benefit
that has been requested in the appeal. The new decision must be served
on the appealing party within 45 days of receipt of any briefs or upon
expiration of the time allowed for the submission of any briefs. If the
new decision is not served within these time limits or the appealing
party does not agree that the new decision disposes of the matter, the
record of proceeding shall be immediately forwarded to the Board.
9. Section 3.6 is revised to read as follows:
Sec. 3.6 Stay of execution of decision.
(a) Except as provided under Sec. 242.2(d) of this chapter and
paragraph (b) of this section, the decision in any proceeding under
this chapter from which an appeal to the Board may be taken shall not
be executed during the time allowed for the filing of an appeal unless
a waiver of the right to appeal is filed, nor shall such decision be
executed while an appeal is pending or while a case is before the Board
by way of certification.
(b) The provisions of paragraph (a) of this section shall not apply
to an order of an Immigration Judge under Sec. 3.23 or Sec. 242.22 of
this chapter denying a motion to reopen or reconsider or to stay
deportation, except where such order expressly grants a stay or where
the motion was filed pursuant to the provisions of Sec. 3.23(b)(4)(ii).
The Board may, in its discretion, stay deportation while an appeal is
pending from any such order if no stay has been granted by the
Immigration Judge or a Service officer.
10. Section 3.7 is revised to read as follows:
Sec. 3.7 Notice of Certification.
Whenever, in accordance with the provisions of Sec. 3.1(c), a case
is certified to the Board, the alien or other party affected shall be
given notice of certification. An Immigration Judge or Service officer
may certify a case only after an initial decision has been made and
before an appeal has been taken. If it is known at the time the initial
decision is rendered that the case will be certified, the notice of
certification shall be included in such decision and no further notice
of certification shall be required. If it is not known until after the
initial decision is rendered that the case will be certified, the
office of the Service or the Immigration Court having administrative
control over the record of proceeding shall cause a Notice of
Certification to be served upon the parties. In either case, the notice
shall inform the parties that the case is required to be certified to
the Board and that they have the right to make representations before
the Board, including the making of a request for oral argument and the
submission of a brief. If either party desires to submit a brief, it
shall be submitted to the office of the Service or the Immigration
Court having administrative control over the record of proceeding for
transmittal to the Board within the time prescribed in Sec. 3.3(c). The
case shall be certified and forwarded to the Board by the office of the
Service or Immigration Court having administrative jurisdiction over
the case upon receipt of the brief, or upon the expiration of the time
within which the brief may be submitted, or upon receipt of a written
waiver of the right to submit a brief. The Board in its discretion may
elect to accept for review or not accept for review any such certified
case. If the Board declines to accept a certified case for review, the
underlying decision shall become final on the date the Board declined
to accept the case.
11. Section 3.8 is revised to read as follows:
Sec. 3.8 Fees.
(a) Appeal from decision of an Immigration Judge or motion within
the jurisdiction of the Board. Except as provided in paragraph (c) of
this section or when filed by an officer of the Service, a Notice of
Appeal to the Board of Immigration Appeals of Decision of Immigration
Judge (Form EOIR-26) filed pursuant to Sec. 3.3(a), or a motion related
to Immigration Judge proceedings that is within the jurisdiction of the
Board and is filed directly with the Board pursuant to Sec. 3.2(g),
shall be accompanied by the fee specified in applicable provisions of
Sec. 103.7(b)(1) of this chapter. Fees shall be paid by check or money
order payable to the ``United States Department of Justice.''
Remittances must be drawn on a bank or other institution located in the
United States and be payable in United States currency. A remittance
shall not satisfy the fee requirements of this section if the
remittance is found uncollectible.
(b) Appeal from decision of a Service officer or motion within the
jurisdiction of the Board. Except as provided in paragraph (c) of this
section, a Notice of Appeal to the Board of Immigration Appeals of
Decision of District Director (Form EOIR-29), or a motion related to
such a case filed under this part by any person other than an officer
of the Service, filed directly with the Service shall be accompanied by
the appropriate fee specified, and remitted in accordance with the
provisions of Sec. 103.7 of this chapter.
(c) Waiver of fees. The Board may, in its discretion, authorize the
prosecution of any appeal or any motion over which the Board has
jurisdiction without payment of the required fee. In any case in which
an alien or other party affected is unable to pay the fee fixed for an
appeal or motion, he or she shall file with the Notice of Appeal (Form
EOIR-26 or Form EOIR-29) or motion, an Appeal Fee Waiver Request, (Form
EOIR-26A). If the request does not establish the inability to pay the
required fee, the appeal or motion will not be deemed properly filed.
12. Section 3.23 is amended by revising paragraph (b) to read as
follows:
[[Page 18908]]
Sec. 3.23 Motions.
* * * * *
(b) Reopening/Reconsideration. (1) The Immigration Judge may upon
his or her own motion, or upon motion of the trial attorney or the
alien, reopen or reconsider any case in which he or she has made a
decision, unless jurisdiction in the case is vested in the Board of
Immigration Appeals under part 3 of this chapter. If the Immigration
Judge is unavailable or unable to adjudicate the motion to reopen, the
Chief Immigration Judge or his delegate shall reassign such motion to
another Immigration Judge. Motions to reopen or reconsider a decision
of the Immigration Judge must filed with the Immigration Court having
administrative control over the record of proceeding. Such motions
shall comply with applicable provisions of 8 CFR 208.4, 208.19, and
242.22. The Immigration Judge may set and extend time limits for
replies to motions to reopen or reconsider. A motion shall be deemed
unopposed unless timely response is made. A motion to reconsider shall
state the reasons for the motion and shall be supported by pertinent
authority. Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents.
(2) Upon request by an alien in conjunction with a motion to reopen
or a motion to reconsider, the Immigration Judge may stay the execution
of a final order of deportation or exclusion. The filing of a motion to
reopen pursuant to the provisions of paragraph (b)(4)(iii) of this
section shall stay the deportation of the alien pending decision on the
motion and the adjudication of any properly filed administrative
appeal.
(3) A motion to reconsider must be filed on or before July 31,
1996, on which the decision for which reconsideration is being sought
was rendered, or whichever is later. A party may file only one motion
to reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider.
(4) A motion to reopen will not be granted unless the Immigration
Judge is satisfied that evidence sought to be offered is material and
was not available and could not have been discovered or presented at
the hearing. A motion to reopen will not be granted for the purpose of
providing the alien an opportunity to apply for any form of
discretionary relief if the alien's rights to make such application
were fully explained to him or her by the Immigration Judge and he or
she was afforded an opportunity to apply at the hearing, unless the
relief is sought on the basis of circumstances that have arisen
subsequent to the hearing. Subject to the other requirements and
restrictions of this section, and notwithstanding the provisions in
1.1(p) of this chapter, a motion to reopen proceedings for
consideration or further consideration of an application for relief
under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if
the alien demonstrates that he or she was statutorily eligible for such
relief prior to the entry of the administratively final order of
deportation.
(i) Except as provided in paragraph (b)(4)(ii) of this section, a
party may file only one motion to reopen proceedings (whether before
the Board or the Immigration Judge) and that motion must be filed not
later than 90 after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened, or on or before
September 30, 1996, whichever is later.
(ii) The time and numerical limitations set forth in paragraph
(b)(4)(i) of this section shall not apply to a motion to reopen filed
pursuant to the provisions of paragraph (b)(4)(iii) of this section, or
to a motion to reopen proceedings to apply or reapply for asylum or for
withholding of deportation based on changed circumstances, which arise
subsequent to the conclusion of proceedings, in the country of
nationality or in the country to which deportation has been ordered, or
to a motion to reopen agreed upon by all parties and jointly filed.
(iii) A motion to reopen deportation proceedings to rescind an
order of deportation entered in absentia must be filed:
(A) Within 180 days after the date of the order of deportation. The
motion must demonstrate that the failure to appear was because of
exceptional circumstances beyond the control of the alien (e.g.,
serious illness of the alien or death of an immediate relative of the
alien, but not including less compelling circumstances); or
(B) At any time if the alien demonstrates that the alien did not
receive notice in accordance with subsection 242B(a)(2) of the Act (8
U.S.C. 1252b(a)(2)) and notice was required pursuant to such
subsection; or the alien demonstrates that the alien was in federal or
state custody and did not appear through no fault of the alien.
(iv) A motion to reopen exclusion hearings on the basis that the
Immigration Judge improperly entered an order of exclusion in absentia
must be supported by evidence that the alien had reasonable cause for
his failure to appear.
13. Section 3.24 is revised to read as follows:
Sec. 3.24 Fees pertaining to matters within the jurisdiction of the
Immigration Judge.
Unless waived by the Immigration Judge, any fee pertaining to a
matter within the jurisdiction of the Immigration Judge shall be
remitted in accordance with the provisions of Sec. 103.7 of this
chapter. Any such fee may be waived by the Immigration Judge upon a
showing that the respondent/applicant is incapable of paying the fees
because of indigency. A properly executed affidavit or unsworn
declaration made pursuant to 28 U.S.C. 1746 by the respondent/applicant
must accompany the request for waiver of fees and shall substantiate
the indigency of the respondent/application.
14. Section 3.31 is amended by revising paragraph (b) to read as
follows:
Sec. 3.31 Filing documents and applications.
* * * * *
(b) All documents or applications requiring the payment of a fee
must be accompanied by a fee receipt from the Service or by an
application for a waiver of fees pursuant to Sec. 3.24. Except as
provided in Sec. 3.8(a)(c), any fee relating to Immigration Judge
proceedings shall be paid to, and accepted by, any Service office
authorized to accept fees for other purposes pursuant to Sec. 103.7(a)
of this chapter.
* * * * *
15. Section 3.38 is amended by revising paragraph (b);
redesignating paragraphs (c) and (d) as paragraphs (f) and (g),
respectively; and adding new paragraphs (c),(d) and (e) to read as
follows:
Sec. 3.38 Appeals.
* * * * *
(b) The Notice of Appeal to the Board of Immigration Appeals of
Decision of Immigration Judge (Form EOIR-26) shall be filed directly
with the Board of Immigration Appeals within 30 calendar days after the
stating of an Immigration Judge's oral decision or the mailing of an
Immigration Judge's written decision. If the final date for filing
falls on a Saturday, Sunday, or legal holiday, this appeal time shall
be extended to the next business day. A Notice of Appeal (Form EOIR-26)
may not be filed by any party who has waived appeal.
(c) The date of filing of the Notice of Appeal (Form EOIR-26) shall
be the date the Notice is received by the Board.
(d) A Notice of Appeal (Form EOIR-26) must be accompanied by the
appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If
the fee is not paid or the Appeal Fee Waiver
[[Page 18909]]
Request (Form EOIR-26A) is not filed within the specified time period
indicated in paragraph(b) of this section, the appeal will not be
deemed properly filed and the decision of the Immigration Judge shall
be final to the same extent as though no appeal had been taken.
(e) Within five working days of any change of address, an alien
must provide written notice of the change of address on Form EOIR-33 to
the Board. Where a party is represented, the representative should also
provide to the Board written notice of any change in the
representative's business mailing address.
* * * * *
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
16. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Sec. 103.5 [Amended]
17. In Sec. 103.5, paragraph (a)(1)(i) is amended by revising the
phrase ``parts 210, 242, or 245a'' in the first sentence to read
``parts 3, 210, 242 and 245a,''.
18. In Sec. 103.7, paragraph (a) is revised to read as follows:
Sec. 103.7 Fees.
(a) Remittances. Fees prescribed within the framework of 31 U.S.C.
483a shall be submitted with any formal application or petition
prescribed in this chapter and shall be in the amount prescribed by law
or regulation. Except for fees remitted directly to the Board pursuant
to the provisions of Sec. 3.8(a) of this chapter, any fee relating to
any Executive Office for Immigration Review proceeding shall be paid
to, and accepted by, any Service office authorized to accept fees.
Payment of any fee under this section does not constitute filing of the
document with the Board or with the Immigration Court. The Service
shall return to the payer, at the time of payment, a receipt for any
fee paid. The Service shall also return to the payer any documents,
submitted with the fee, relating to any Immigration Judge proceeding. A
charge of $5 will be imposed if a check in payment of a fee is not
honored by the bank on which it is drawn. An issued receipt for any
such remittance shall not be binding if the remittance is found
uncollectible. Remittances must be drawn on a bank or other institution
located in the United States and be payable in United States currency.
Fees in the form of postage stamps shall not be accepted. Remittances
to the Service shall be made payable to the ``Immigration and
Naturalization Service,'' except that in case of applicants residing in
the Virgin Islands of the United States, the remittances shall be made
payable to the ``Commissioner of Finance of the Virgin Islands'' and,
in the case of applicants residing in Guam, the remittances shall be
made payable to the ``Treasurer, Guam.'' If application to the Service
is submitted from outside the United States, remittance may be made by
bank international money order or foreign draft drawn on a financial
institution in the United States and payable to the Immigration and
Naturalization Service in United States currency. Remittances to the
Board shall be made payable to the ``United States Department of
Justice.''
* * * * *
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION
19. The authority citation for part 208 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1252 note, 1252b,
1253, 1282 and 1283; 31 U.S.C. 9701; and 8 CFR part 2.
20. In Sec. 208.19, paragraph (a) is revised to read as follows:
Sec. 208.19 Motion to reopen or reconsider.
(a) A proceeding in which asylum or withholding of deportation was
denied may be reopened or a decision from such a proceeding
reconsidered for proper cause upon motion pursuant to the requirements
of 8 CFR 3.2, 3.23, 103.5, and 242.22 where applicable.
* * * * *
PART 236--EXCLUSION OF ALIENS
21. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
22. Section 236.7 is revised to read as follows:
Sec. 236.7 Appeals.
Except as limited by section 236 of the Act, an appeal from a
decision of an Immigration Judge under this part may be taken by either
party pursuant to Sec. 3.38 of this chapter.
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
23. The authority citation for part 242 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252a, 1252b, 1254, 1362; 8 CFR part 2.
Sec. 242.19 [Amended]
24. In Sec. 242.19, the form number ``I-290A'' is removed each time
it appears and, in its place, the form number ``EOIR-26'' is added in
paragraphs (6) and (c).
25. In Sec. 242.21, paragraph (a) is revised to read as follows:
Sec. 242.21 Appeals.
(a) Pursuant to part 3 of this chapter, an appeal shall lie from a
decision of an Immigration Judge to the Board, except that no appeal
shall lie from an order of deportation entered in absentia. The
procedures regarding the filing of a Notice of Appeal (Form EOIR-26),
fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this
chapter. An appeal shall be filed within 30 calendar days after the
mailing of a written decision, the stating of an oral decision, or the
service of a summary decision. The filing date is defined as the date
of receipt of the Notice of Appeal by the Board of Immigration Appeals.
The reasons for the appeal shall be stated in the Notice of Appeal
(Form EOIR-26) in accordance with the provisions of Sec. 3.3(b) of this
chapter. Failure to do so may constitute a ground for dismissal of the
appeal by the Board pursuant to Sec. 3.1(d)(1-a) of this chapter.
* * * * *
26. Section 242.22 is amended by revising the first sentence and by
adding a sentence at the end of the section, to read as follows:
Sec. 242.22 Reopening or reconsideration.
Motions to reopen or reconsider are subject to the requirements and
limitations set forth in Sec. 3.23 of this chapter. * * * The filing
of a motion to reopen pursuant to the provisions of Sec. 3.23(b)(4)(ii)
of this chapter shall stay the deportation of the alien pending the
disposition of the motion and the adjudication of any properly filed
administrative appeal.
PART 246--RESCISSION OF ADJUSTMENT OF STATUS
27. The authority citation for part 246 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259.
[[Page 18910]]
28. Section 246.7 is revised to read as follows:
Sec. 246.7 Appeals.
Pursuant to part 3 of this chapter, an appeal shall lie from a
decision of an Immigration Judge under this part to the Board of
Immigration Appeals except that no appeal shall lie from an order of
deportation entered in absentia. An appeal shall be taken within 30
days after the mailing of a written decision or the stating of an oral
decision. The reasons for the appeal shall be specifically identified
in the Notice of Appeal (Form EOIR 26); failure to do so may constitute
a ground for dismissal of the appeal by the Board.
Dated: April 16, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-10157 Filed 4-26-96; 8:45 am]
BILLING CODE 4410-01-M
