[Federal Register Volume 59, Number 108 (Tuesday, June 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13547]


[[Page Unknown]]

[Federal Register: June 7, 1994]


                                                   VOL. 59, NO. 108

                                              Tuesday, June 7, 1994

DEPARTMENT OF JUSTICE

8 CFR Parts 1, 3, 103, 208, and 242

[AG Order No. 1878-94]

 

Executive Office for Immigration Review; Motions and Appeals in 
Immigration Proceedings

AGENCY: Department of Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule amends Executive Office for Immigration 
Review regulations concerning motion and appeal practice in immigration 
proceedings. The rule is being promulgated to implement the directives 
of section 545 of the Immigration Act of 1990 (``IMMACT''). Both time 
and number limitations on motions to reopen proceedings or to 
reconsider decisions have been proposed in accordance with section 
545(d) of IMMACT, and will reflect the intent of Congress to streamline 
the deportation proceedings of aliens in the United States.

DATES: Written comments must be received on or before August 8, 1994.

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: Section 545 of the Immigration Act of 1990, 
Public Law 101-649 (8 U.S.C. 1252b), modifies both substantive and 
procedural aspects of motion and appeal practice in immigration 
proceedings. Under the proposed rule, a party may file only one motion 
to reopen proceedings, and one motion to reconsider a decision of an 
Immigration Judge, the Board of Immigration Appeals (``Board''), or a 
Service Officer. A motion to reopen proceedings must be filed within 20 
days of the final administrative decision or within 20 days of the 
effective date of the final rule, whichever is later. A motion to 
reconsider a decision must also be filed within 20 days of the decision 
or within 20 days of the effective date of the final rule, whichever is 
later. Under the proposed rule, provisions concerning motions to reopen 
or reconsider have been condensed into one section under 8 CFR 3.2. A 
new Sec. 3.8 will concern fees.
    The Board has previously addressed issues relating to the effect of 
an alien's loss of lawful permanent resident status on a motion to 
reopen proceedings to apply for or to further pursue an application for 
relief under section 212(c) of the Act. See e.g., Matter of Cerna, 
Interim Decision 3161 (BIA 1991) and Matter of Lok, 18 I&N Dec. 101 
(BIA 1981), aff'd on other grounds, Lok v. INS, 681 F.2d 107 (2d Cir. 
1982). These decisions have recently been the subject of litigation and 
conflicting court rulings. Subject to all of the other requirements 
pertaining to motions to reopen, the proposed rule will permit 
reopening of proceedings to consider or further consider an application 
for relief under section 212(c) of the Act 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 or exclusion.
    There are several exceptions to these general rules, as required by 
section 242B(c)(3) of the Act, 8 U.S.C. 1252b(c)(3). An alien who is 
ordered deported in absentia who can demonstrate that his or her 
failure to appear was due to exceptional circumstances may file a 
motion to reopen the proceedings within 180 days of the final order. An 
alien who is ordered deported in absentia without receiving notice of 
the proceedings, if notice was required, or who was in federal or state 
custody at the time of the proceedings and could not appear, may file a 
motion to reopen without regard to the above time limitations. The 
filing of a motion to reopen proceedings or a motion to reconsider a 
decision will not serve to stay the execution of any decision, unless 
the motion is filed by an alien who was ordered deported in absentia, 
pursuant to 8 CFR 3.23(b)(5). As in the past, an alien who files an 
asylum claim that arises after the initiation of deportation 
proceedings against the alien where the claim is based upon an alleged 
change in circumstances in the country of the alien's nationality may 
move to reopen the proceedings at any time.
    When a party appeals a decision, the notice of appeal must 
meaningfully identify the reasons for the appeal in order to avoid 
summary dismissal. The notice must indicate whether the party will be 
filing a brief and whether the party desires oral argument before the 
Board. An appellant will be provided 30 days in which to file a brief 
unless the alien concerned is detained, in which case the appellant 
will be given 14 days to file a brief. The Immigration Judge or Service 
Officer may specify a shorter time in which to file a brief, but only 
the Board may extend the time for filing, and then only up to a total 
of 90 days for good cause shown. An appeal may be withdrawn by either 
party. In the event the alien concerned leaves the United States after 
taking an appeal but prior to a decision, the appeal will be deemed 
withdrawn. An appeal will not be permitted when an order of deportation 
or exclusion has been entered in absentia.
    The rule more clearly outlines when the notice of appeal should be 
filed with the Immigration and Naturalization Service and when the 
notice of appeal should be filed with the Office of the Immigration 
Judge. The proposed rule also replaces the reference to discontinued 
Form I-290A with reference to the currently used Form EOIR-26 for 
filing an appeal from a decision of an Immigration Judge and Form EOIR-
29 for filing an appeal from a decision of a district director. The 
proposed change will eliminate the requirement that the notice of 
appeal be filed in triplicate. Parties will still be required to file 
the original notice of appeal with the office having administrative 
control over the record of proceeding and serve a copy of the notice of 
appeal on the opposing party. The proposed rule will clarify that a 
notice of appeal will not be considered filed until the notice is 
actually received in the office having administrative control over the 
record of proceeding.
    The rule clarifies that the period for filing a Notice of Appeal to 
the Board of Immigration Appeals of Decision of Immigration Judge (Form 
EOIR-26) is extended from 10 to 13 days where the decision of the 
Immigration Judge is served by mail. The proposed change will clearly 
define the event that commences the running of the period for filing an 
appeal and will reiterate which form should be used to file an appeal 
and where to file the form. These proposed changes will help unify 
practice and procedure throughout the country and will restrict the 
ability of parties to reopen or continue proceedings indefinitely. 
These goals are consistent with the directives of section 545 of IMMACT 
(8 U.S.C. 1252b).
    This rule is promulgated as a proposed regulation to allow for 
comments prior to implementation.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule will not have a significant adverse economic impact on a 
substantial number of small entities. This rule was not reviewed by the 
Office of Management and Budget pursuant to Executive Order No. 12866. 
In addition, this rule does not have Federalism implications warranting 
the preparation of a Federalism Assessment in accordance with Executive 
Order No. 12612.

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 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 regiment 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 Commissioner or any other duly 
authorized officer of 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 within 20 days after the mailing of the decision or the stating 
of the oral decision for which reconsideration is being sought, or 
within 20 days of the effective date of the final rule, whichever is 
later. When service of the decision is made by mail, 3 days shall be 
added to the period prescribed for filing of the motion. 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 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 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 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 
therefor 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 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), a party may file only 
one motion to reopen proceedings and that motion must be filed not 
later than 20 days after the date on which the final administrative 
decision was rendered in the proceeding sought to be reopened, or 
within 20 days of the effective date of the final rule, whichever is 
later.
    (3) The time and numerical limitations set forth in paragraph 
(c)(2) shall not apply to a motion to reopen proceedings:
    (i) Filed pursuant to the provisions of Sec. 3.23(b)(5) of this 
part.
    (ii) To apply or reapply for asylum, or withholding of deportation, 
based on changed circumstances arising subsequent to the commencement 
of proceedings in the country of nationality or in the country to which 
deportation has been ordered, 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) and the time and numerical limitations set forth in 
paragraph (c)(2).
    (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 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 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 deportation order is also the subject of any pending 
criminal proceeding under section 242(e) of the Act, 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) of this part, 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)  Distribution of motion papers. A motion to reopen to a motion 
to reconsider a decision of the Board pertaining to proceedings before 
an Immigration Judge shall be filed with the Office of the Immigration 
Judge having administrative control over the record of proceeding. 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 Commissioner or any other duly authorized officer of 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. In all cases, the motion 
shall include proof of service on the opposing party and all 
attachments. The moving party may only file a brief if it is included 
with the motion. The opposing party shall have ten days from the date 
of service of the motion to submit a brief in opposition to the motion, 
which shall be filed with the Office where the motion was filed, along 
with proof of service of a copy of the brief on the opposing party. The 
Board, in its discretion, may extend the time within which such brief 
is to be submitted. A motion shall be deemed unopposed unless a timely 
response is made.
    (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) A party affected by a decision who is entitled under this 
chapter to appeal to the Board shall be given notice of his or her 
right to appeal. An appeal of 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) with the Office 
of the Immigration Judge having administrative control over the record 
of proceeding, within the time specified in the governing sections of 
this chapter. An appeal of 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) 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. A 
notice of appeal of a decision of an Immigration Judge is not 
considered to be filed until the Form EOIR-26 is actually received in 
the appropriate Office of the Immigration Judge and the fee provisions 
of Sec. 3.8 of this part are satisfied. A notice of appeal of a 
decision of a district director is not considered to be filed until the 
Form EOIR-29 is actually received in the appropriate office of the 
Service and the fee provisions of Sec. 3.8 of this part are satisfied. 
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. 
Departure from the United States of a person in 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.
    (b) Items to be included in the Notice of Appeal. The party taking 
the appeal must meaningfully identify the reasons for the appeal in the 
notice of appeal in order to avoid summary dismissal pursuant to 
Sec. 3.1(d)(1-a)(i) of this part. The statement on the notice of appeal 
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. In addition, the statement of the reasons for appeal must 
be set forth with sufficient clarity and specificity that the Board may 
address the appeal without first reviewing the record and constructing 
the arguments. The appellant must also indicate in the notice of appeal 
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. Briefs in support of or in opposition to an appeal 
shall be filed with the Office of the Immigration Judge or, where the 
appeal is from a decision of a Service Officer, with the officer of the 
Service having administrative control over the case. If the alien 
concerned is not detained, the appellant shall be provided 30 days in 
which to file a brief unless a shorter period is specified by the 
Immigration Judge or by the Service Officer from whose decision the 
appeal is taken. 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 Immigration Judge or by the Service Officer 
from whose decision the appeal is taken. 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, or the date upon 
which such brief was filed, whichever is earlier. The Board, upon 
motion, may extend the period for filing a brief or a reply brief for 
up to 90 days for good cause shown and may authorize the filing of 
briefs directly with it. If, in its discretion, the Board determines 
that the interests of justice would be served thereby, it may consider 
a brief filed out of time in its adjudication of an appeal. All briefs 
and motions regarding the filing of briefs shall include proof of 
service of the brief or motion on the opposing party.
    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 of this 
part, 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.

    If an appeal is taken from a decision, as provided in this chapter, 
the entire record of proceeding shall be forwarded to the Board by the 
office having administrative jurisdiction over the case upon timely 
receipt of the briefs of the parties, or upon expiration of the time 
allowed for the submission of such briefs. After an appeal to the Board 
has been filed, a district director or regional service center director 
need not forward such appeal to the Board, but may reopen and 
reconsider any decision made by the director, if the director's new 
decision will grant the benefit that has been requested in the appeal, 
provided that the director's 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 
director's 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:


Sec. 3.7  Notice of certification.

    Whenever, in accordance with the provisions of Sec. 3.1(c) of this 
part, 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 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) of this part. 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.

    Except as otherwise provided in this section, a notice of appeal or 
motion filed under this subpart by any person other than an officer of 
the Service relating to a proceeding held before an Immigration Judge 
shall be accompanied by evidence that the specified fee has been 
remitted in accordance with the applicable provisions of Secs. 3.38(c) 
and 103.7 of this chapter. Except as otherwise provided in this 
section, a notice of appeal or motion filed under this subpart by any 
person other than an officer of the Service relating to a matter 
involving an adjudication by an officer of the Service shall be 
accompanied by the specified fee and remitted in accordance with the 
applicable provisions of Sec. 103.7 of this chapter. In any case in 
which an alien or other party affected is unable to pay the fee fixed 
for an appeal or a motion, he or she shall file with the notice of 
appeal or the motion his or her affidavit or unsworn declaration, made 
pursuant to 28 U.S.C. 1746, stating the nature of the motion or appeal 
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. When such a document is filed with the 
officer of the Service or the Immigration Judge from whose decision the 
appeal is taken or with respect to whose decision the motion is 
addressed, such Service Officer or Immigration Judge shall, if he or 
she believes that the appeal or motion is not taken or made in good 
faith, certify in writing his or her reasons for such belief for 
consideration by the Board. The Board may, in its discretion, authorize 
the prosecution of any appeal or motion without payment of the required 
fee.
    12. Section 3.23 is amended by revising paragraph (b) 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 trail 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. 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 acting on an application for relief must be accompanied 
by the appropriate application for relief and all supporting documents. 
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 circumstances 
have arisen thereafter on the basis of which the request is being made. 
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 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) A motion to reconsider must be filed within 20 days after the 
date on which the decision for which reconsideration is being sought 
was rendered, or within 20 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.
    (3) Except as provided in paragraph (b)(4), a party may file only 
one motion to reopen proceedings and that motion must be filed not 
later than 20 days after the date on which the final administrative 
decision was rendered in the proceeding sought to be reopened, or 
within 20 days of the effective date of the final rule, whichever is 
later.
    (4) The time and numerical limitations set forth in paragraph 
(b)(3) shall not apply to a motion to reopen filed pursuant to the 
provisions of paragraph (b)(5), 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.
    (5) 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 (such as 
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.
    (6) When requested 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) shall stay the 
deportation of the alien pending decision on the motion and the 
adjudication of any properly filed administrative appeal.
    13. Section 3.38 is amended by revising paragraph (b) to read as 
follows:


Sec. 3.38  Appeals.

* * * * *
    (b) The Notice of Appeals to the Board of Immigration Appeals of 
Decision of Immigration Judge (Form EOIR-26) shall be filed with the 
Office of the Immigration Judge having administrative control over the 
record of proceeding within 10 calendar days after the Immigration 
Judge has rendered an oral decision on the record or within 10 calendar 
days after a written decision has been served in person to the parties. 
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 Office of the 
Immigration Judge having administrative control over the record of 
proceeding within 13 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 appeals may not be filed by any party who has waived 
appeal.
* * * * *

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    14. 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]

    15. Section 103.5 paragraph (a)(1)(i) is amended by revising the 
phrase ``part 242'' to read ``parts 3 and 242''.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

    16. 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.

    17. Section 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

    18. 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.

    19. Section 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 of Immigration Appeals, 
except that no appeal shall lie from an order of deportation or 
exclusion 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 may be summarily 
dismissed if it comes within the provisions of Sec. 3.1(d)(1-a) of this 
chapter.
* * * * *
    20. 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: May 25, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-13547 Filed 6-6-94; 8:45 am]
BILLING CODE 1531-26-M