[Federal Register Volume 60, Number 89 (Tuesday, May 9, 1995)]
[Proposed Rules]
[Pages 24573-24580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11002]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 89 / Tuesday, May 9, 1995 / Proposed
Rules
[[Page 24573]]
DEPARTMENT OF JUSTICE
8 CFR Parts 1, 3, 103, 208, and 242
[EOIR No. 102P; AG Order No. 1965-95]
RIN 1125-AA01
Motions and Appeals in Immigration Proceedings
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: Proposed regulations were published in the Federal Register on
June 7, 1994 concerning motions and appeals in immigration proceedings
and on May 13, 1994 concerning fees. The June proposed rulemaking was
promulgated to implement section 545 of the Immigration Act of 1990,
Public Law 101-649, which requires both time and number limitations on
motions to reopen and reconsider and changes in the substantive and
procedural aspects of motion and appeal practice. The May proposed
rulemaking was promulgated to establish an alternative procedure for
filing proof of fee payments with the Board of Immigration Appeals (the
``Board'').
Since the publication of these two proposed rules, the agency has
further examined its current appeal procedures and has decided to
establish a uniform central system for filing and tracking appeals
before the Board. Under the proposed procedure, parties would file a
notice of appeal from a decision of an Immigration Judge and remit the
appeal fee or fee waiver petition with the notice of appeal directly to
the Board. The rule also would require that motions to reopen and
motions to reconsider decisions of the Board be filed directly with the
Board accompanied by the appropriate fee or fee waiver petition. This
rule would supersede the May and June proposed rulemakings.
This proposed centralization of the appeals procedure is
fundamentally interrelated to the proposed changes of both the June and
the May proposed rulemakings. Therefore, the agency has determined to
merge these substantive and procedural proposals into one rule and to
provide an opportunity for public comment on this merged rule. The June
proposed rule has been changed to clarify certain provisions and to
reflect many of the commenters' concerns. The single unified proposed
rule is published herein and addresses both the language of section
545(d) of the Immigration Act of 1990 and new procedural changes to the
filing of appeals, motions, and their concomitant fees with the Board.
DATES: Written comments must be received on or before June 8, 1995.
ADDRESSES: Please submit written comments to Gerald S. Hurwitz, Counsel
to the Director, Executive Office for Immigration Review, Suite 2400,
5107 Leesburg Pike, Falls Church, Virginia 22041.
FOR FURTHER INFORMATION CONTACT:
Gerald S. Hurwitz, Counsel to the Director, Executive Office for
Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls church,
Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION: The agency recently published two proposed
rules concerning motions to reopen, motions to reconsider, notices of
appeal, and filing fees. 59 FR 29386 (published June 7, 1994) (the
``June proposed rulemaking''); 59 FR 24977 (1994) (published May 13,
1994) (the ``May proposed rulemaking''). The June proposed rulemaking
established both time and number limitations on motions to reopen
proceedings and on motions to reconsider decisions as well as certain
changes to appellate procedures to reflect the statutory directives in
section 545 of the Immigration Act of 1990. The May proposed rule
amended the requirement that the parties, after remitting all fee
payments to the Immigration and Naturalization Service (the
``Service''), file the proof of payment with the Office of the
Immigration Judge within 10 calendar days of the issuance of an oral
decision or within 13 days of the mailing of a written decision. The
May proposed rulemaking retained the filing of proof of fee payment
procedure but expanded the time frame for filing to 30 days.
Since the publication of these proposed rules, the agency has
decided that additional changes should be made in its current
procedures for filing appeals and other filings with the Board. These
changes are interrelated to the regulatory changes proposed in both May
and June 1994 concerning substantive and procedural changes in motion
and appeal practice. Therefore, the rule concerning motions and appeals
has been modified to reflect the new appeal procedures and to clarify
or supersede certain provisions within the original proposed rules. In
addition, several changes have been made in response to the comments
received concerning the proposed rules. However, the agency is
continuing to consider and evaluate each of the issues raised in the
comments to the original proposed rules. Comments which were submitted
in response to the first publication will continue to be considered,
and it will not be necessary to resubmit comments concerning those
provisions which are repeated herein. However, the public is encouraged
to comment on those areas in which the proposed rule has been amended.
An outline of the changes to the original motion and appeals rule,
as well as an explanation of the new appeal filing procedures follows.
(1) Motions to reconsider. The time frame for filing a motion to
reconsider a decision with the Board has been expanded from 20 to 30
days after the mailing of the Board's decision, or within 30 days of
the effective date of the final rule, whichever is later. No additional
time is added for mailing of the decision. Language has been added to
the rule to state that a motion to reconsider shall specify the errors
of fact or law in the prior Board order. This language clarifies that a
motion to reconsider a decision is a request to reexamine the prior
Board decision. It is not to be confused with a motion to reopen, which
addresses the decision in light of the existence of new law or fact or
changed circumstances. Many of the comments objected to the 20-day
limit for motions to reconsider on the basis that this time frame did
not allow sufficient time for the development of new evidence. As
stated above, this argument is not applicable for motions to
reconsider. Motions to reconsider should be brought to the attention of
the adjudicator in a prompt manner, while the circumstances surrounding
the decision are easier to reexamine. Nonetheless, the agency has
proposed expanding the time to file a motion to reconsider by an
additional 10 days for [[Page 24574]] a total of 30 days subsequent to
the decision. As the time frame was expanded by 10 additional days, the
3-day extension for mailing has been removed.
(2) Motions to reopen.
a. Numerical limit. Language has been added to clarify that a party
many file only one motion to reopen proceedings, whether before the
Board or the Immigration Judge. This provision makes clear that a
motion to reopen shall be limited to one during the entire course of
proceedings. This language reflects the direction in the Joint
Explanatory Statement of the Committee of Conference (p. 133), of the
Immigration Act of 1990, that only one motion to reopen and one motion
to reconsider a decision be permitted in immigration proceedings.
b. Time limit. The proposed rule had provided a 20-day time frame
for filing a motion to reopen. Many commenters argued that the purpose
of the motion to reopen was to provide an opportunity to bring new
evidence to light, to acknowledge recent changes in the law, or to
provide an opportunity for the applicant to seek additional relief that
was not available in the first instance. The commenters further urged
that unrepresented aliens and, in particular, detained aliens would not
have access to counsel in time to develop a meaningful motion to reopen
within the 20-day period, regardless of the merits of their position.
The agency has carefully weighted these comments and agrees that a
greater time period should be provided for motions to reopen to allow
for those situations described above. The agency has determined that
such motions must be filed within 90 days of the final decision of the
adjudicator. At present, the regulations provide for unlimited motions
to reopen without any time limit for filing. The proposed rule will
dramatically limit this form of relief to one opportunity, and such
opportunity for reopening will be limited to a 90-day time period.
These limitations reflect the congressional intent to streamline the
deportation process, while providing a reasonable opportunity for
meritorious cases to be heard.
c. Exceptions. The time and numerical limitations set forth in the
body of the rule do not apply in certain circumstances. In the case of
an applicant seeking to apply or reapply for asylum or withholding of
deportation, the language has been modified to provide for a motion to
reopen 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 would not have been
discovered or presented at the former hearing. This language mirrors
the language in section 3.2(c)(1) and will reflect more accurately the
standard for reopening that is currently in practice.
d. Judicial proceedings. The rule clarifies that motions to reopen
or reconsider shall indicate whether the validity of both deportation
or exclusion orders have been or are the subject of any judicial
proceedings. This change amends the rule to include reference to
exclusion as well as deportation orders, and its reference was
inadvertently omitted from the original proposed rule.
(3) New appeal filing procedures. The rule proposes to amend the
filing procedures with the Board to require parties to file all notices
of appeal of decisions of immigration judges, as well as motions to
reopen and motions to reconsider decisions of the Board directly with
the Board. The proposed rule will also abolish the current system of
remitting the fees in these cases to the Service. Instead, the proposed
rule provides that the required fee or fee waiver petition must
accompany the notice of appeal or motion and be filed directly with the
Board. Notices of appeal from Service officer decisions and appropriate
fees or fee waiver petitions shall continue to be filed directly with
the office of the Service having administrative control over the record
of proceedings.
In order to allow sufficient time for filing an appeal directly
with the Board, this rule expands the time frame in which to file an
appeal. Where the Immigration Judge decision is rendered orally, the
rule will require that a party file a notice of appeal within 15
calendar days of the Immigration Judge's decision. Where a written
decision is served by mail, the rule will require that a party file a
notice of appeal within 20 calendar days after the decision was mailed.
Briefs in support of or in opposition to an appeal from a decision of
an Immigration Judge shall be filed directly with the Board also.
The rule restates that certification of a case does not relieve a
party from compliance with the appeals provisions. Further, departure
from the Untied States by an individual in deportation proceedings
constitutes a waiver of his or her right to appeal.
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b). The Attorney General has determined
that this rule is not a significant regulatory action under Executive
Order 12866, Sec. 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, Aliens.
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
recordkeeping requirements, Surety bonds.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 242
Administrative practice and procedure, Aliens.
Accordingly, title 8, chapter I of the Code of Federal Regulations
is proposed to be 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
[[Page 24575]] 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 is revised 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, except that no appeal shall lie from an
order of exclusion entered in absentia.
(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, nor shall an appeal
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
require certification of 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 of this chapter 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 to 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. A motion to reconsider a decision must be
filed with the Board within 30 days after the mailing of the Board
decision, or within 30 days of effective date of the final rule,
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. 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 render 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 this paragraph.
(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 appeals 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, 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 or 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 within 90 days
of [Insert effective date of the final rule], 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)(5);
(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 would not have been discovered or
presented at the former hearing; or
(iii) Agreed upon by all parties and jointly filed.
(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 subsequent to the filing of an appeal to the Board from the
proceedings sought to be reopened, shall 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, which
shall be consolidated with, and considered by the Board in connection
with, the appeal to the Board, is subject to the requirements set forth
in paragraph (c)(1) of this section and the time and numerical
limitations set forth in paragraph (c)(2) of this section.
(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. [[Page 24576]]
(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)(5), 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) Distribution of motion papers. 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 and 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. 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; provided, however that when a motion to reopen or
a motion to reconsider 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. 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) 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)(1) 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)(1) of this section, the opposing party shall have 10 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 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 Office of the Immigration Judge 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 [[Page 24577]] 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
accordance with a written briefing schedule set by the Board. An
appellant who is not detained shall be provided 30 days in which to
file a brief, unless a shorter period is specified by the Board. A
detained appellant shall be provided 14 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. If the alien concerned is not detained,
the appellant shall be provided 30 days in which to file a brief. If
the alien concerned is detained, the appellant shall be provided 14
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 appellant 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 or a reply 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:
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 shall have
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)(5). 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: [[Page 24578]]
Sec. 3.7 Notice of Certification.
Whenever, in accordance with the provisions of Sec. 3.1(c), a case
is required to be 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 Office of the
Immigration Judge 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 Office of the Immigration Judge 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 Office of
the Immigration Judge 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 of the Board's
declination.
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 direction 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, his or her affidavit or unsworn
declarations made pursuant to 28 U.S.C. 1746, stating the nature of the
proceeding and his or her belief that he or she is entitled to redress.
Such document shall also establish his or her inability to pay the
required fee and shall request permission to prosecute the appeal or
motion without payment of such fee. If the request does not establish
the inability to pay the required fee, the appeal or motion will not be
deemed properly filed.
12. In Sec. 3.23, paragraph (b) is revised to read as follows:
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 this part. 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 be filed with the Office of the Immigration
Judge 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 action on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents.
(2) 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; nor will any motion to reopen for the purpose of providing
the alien an opportunity to apply for any form of discretionary relief
be granted 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 do so 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, 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.
(3) A motion to reconsider must be filed within 30 days after the
date on which the decision for which reconsideration is being sought
was rendered, or within 30 days of the effective date of the final
rule, 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) Except as provided in paragraph (b)(5) 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 within 90 days
of the effective date of the final rule, whichever is later.
(5) The time and numerical limitations set forth in paragraph
(b)(4) of this section shall not apply to a motion to reopen filed
pursuant to the [[Page 24579]] provisions of paragraph (b)(6) 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 commencement 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.
(6) A motion to reopen deportation proceedings to rescind an order
of deportation entered in absentia must be filed:
(i) 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
(ii) 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.
(7) 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)(5) of this section
shall stay the deportation of the alien pending decision on the motion
and the adjudication of any properly filed administrative appeal.
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/applicant.
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 paragraphs (a) and (c) of Sec. 3.8, 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 redesignating paragraphs (c) and (d)
as paragraphs (d) and (e), respectively; revising paragraph (b); and
adding a new paragraph (c) 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 15 calendar days after the
Immigration Judge has rendered an oral decision on the record in the
presence of the respondent/applicant or his or her attorney. Where the
decision of the Immigration Judge is served by mail, the Notice of
Appeal to the Board of Immigration Appeals of Decision of Immigration
Judge (Form EOIR-26) shall be filed with the Board within 20 calendar
days after the date the decision is mailed. 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) A Notice of Appeal must be accompanied by the appropriate fee
or by an application for a waiver of fees. If the fee is not paid or
the application for a waiver of fees is not filed within the specified
time period, as 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.
* * * * *
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'' to read ``parts 3, 210, 242, and
245a''.
18. Section 103.7 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 Office of the Immigration Judge.
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 which were 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.'' [[Page 24580]]
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, and 1283.
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 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
21. The authority citation for part 242 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252b, 1254, 1362; 8 CFR part 2.
22. In Sec. 242.21, paragraph (a) is revised to read as follows;
Sec. 242.21 Appeals.
(a) Pursuant to part 3 of this chapter, and appeal shall lie from a
decision of an Immigration Judge to the Board, except that no appeal
shall lie for an order of deportation or exclusion entered in absentia.
The procedures regarding the filing of a Notice of Appeal (Form EORI--
26), fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of
this chapter. An appeal shall be taken within 20 calendar days after
the mailing of a written decision, or 15 calendar days after the
mailing of a written decision, or 15 calendar days after the stating of
an oral decision, or the service of a summary decision on Form I-38 or
Form I-39. 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.
* * * * *
23. Section 242.22 is amended by revising the first sentence and by
adding a sentence at the end, 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)(5) 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.
Dated: April 25, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-11002 Filed 5-8-95; 8:45 am]
BILLING CODE 153-126-GF-M
