[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.
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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]
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