18900 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

DEPARTMENT OF JUSTICE

8 CFR Parts 1, 3, 103, 208, 212, 242,

and 246

[EOIR No. 102F; AG Order No. 2020–96]

RIN 1125–AA01

Executive Office for Immigration

Review; Motions and Appeals in

Immigration Proceedings

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule streamlines

motions and appeals practice before the

Board of Immigration Appeals

(‘‘Board’’), and establishes a centralized

procedure for filing notices of appeal,

fees, fee waiver requests, and briefs

directly with the Board. The rule

establishes time and number limitations

on motions to reconsider and on

motions to reopen and makes certain

changes to appellate procedures, in

great measure, to reflect the statutory

directives of section 545 of the

Immigration Act of 1990. The new 30-

day period for filing appeals and the

provisions for filing appeals directly

with the Board apply to Immigration

Judge decisions issued on or after the

effective date of the final rule.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike,

Falls Church, Virginia 22041, (703) 305–

0470.

SUPPLEMENTARY INFORMATION: Under the

final rule, parties will have the

opportunity to file only one motion to

reopen and one motion to reconsider

during the administrative adjudication

process. In most instances, the motion

to reopen must be filed not later than 90

days after the date on which the final

administrative decision was rendered or

on or before September 30, 1996,

whichever is later. Generally, a motion

to reconsider must be filed not later

than 30 days after the date on which the

final administrative decision was

rendered on or before July 31, 1996

whichever is later. The rule also

provides that a notice of appeal will be

timely if filed within 30 days of the

issuance of an Immigration Judge’s

decision. The Department notes that the

new 30-day period for filing appeals and

the provisions for filing appeals directly

with the Board apply to Immigration

Judge decisions issued on or after the

effective date of the final rule.

Therefore, the old regulation’s 10-day

period (13 days if the appeal is mailed)

for filing appeals and provisions for

filing appeals with the Immigration

Courts apply to Immigration Judge

decisions issued before the effective

date of this rule.

The rule outlines the required content

of motions and notices of appeal, and

requires parties to file or remit directly

with the Board of Immigration Appeals

(‘‘Board’’): (1) All motions to reopen and

motions to reconsider decisions of the

Board pertaining to proceedings before

Immigration Judges; (2) all notices of

appeals of decisions of Immigration

Judges; and (3) all relevant fees or fee

waiver requests. Furthermore, the rule

addresses the definition of the term

‘‘lawfully admitted for permanent

residence,’’ the procedure for certifying

a case to the Board, and appeals of in

absentia decisions. The Department

notes that the field sites of the Executive

Office for Immigration Review (‘‘EOIR’’),

formerly referred to as the Offices of the

Immigration Judges, are now called

Immigration Courts.

The Department of Justice has

published a number of proposed rules

addressing both the motion practice and

the appeals process before the Board.

Most recently, the Department

published a proposed rule regarding

these procedures in May 1995 that

incorporated and expanded proposed

rules published in May and June 1994.

60 FR 24573 (May 9, 1995); 59 FR 29386

(June 7, 1994); 59 FR 24977 (May 13,

1994).

In response to the above rulemakings,

the Department received 71 comments.

The comments addressed a number of

issues, including the definition of the

term ‘‘lawfully admitted for permanent

residence,’’ the time and number

limitations on motions to reopen and

reconsider, the availability of an appeal

where an order has been entered in

absentia (particularly in exclusion

proceedings), the streamlined appeals

procedure, and the construction of

briefing schedules for both motions and

appeals.

The Department has carefully

considered and evaluated the issues

raised by the commenters and has

modified the rule considerably. The

following sections summarize the

comments, set forth the responses of the

Department of Justice, and explain the

final provisions adopted. We note that

a number of technical corrections were

made to the proposed rule. These

corrections include the addition of 8

U.S.C. 1282, 31 U.S.C. 9701 and 8 CFR

part 2 to the authority citation for Part

208 and the addition of 8 U.S.C. 1252a

to the authority citation for Part 242.

(1) Definition of Lawful Permanent

Resident—Section 1.1(p)

Comment: Some commenters objected

that the definition of the term ‘‘lawfully

admitted for permanent residence’’ in

section 1.1(p) provides that lawful

permanent resident status terminates

upon the entry of a final administrative

order of exclusion or deportation. They

argued that lawful permanent resident

status is not deemed to be terminated

during the pendency of petitions for

review, motions to reopen and/or

reconsider, and habeas corpus

proceedings, citing cases in the United

States Courts of Appeal for the Ninth

and Second Circuits. Butros v. INS, 990

F.2d 1142 (9th Cir. 1993); Vargas v. INS,

938 F.2d 358 (2d Cir. 1991). In those

cases, the courts held that under the

regulations regarding motions to reopen,

lawful permanent resident status could

not be terminated prior to the alien’s

actual physical departure from the

United States.

Response and Disposition: After

careful consideration, the Department

has decided to retain the regulation as

previously proposed. The finding that

lawful permanent resident status

terminates upon the entry of a final

administrative order of exclusion or

deportation was established by the

Board in Matter of Lok, 18 I&N Dec. 101

(BIA 1981). The Lok rule has been

upheld by courts of appeals in at least

four circuits and provides finality in

immigration proceedings. See Jaramillo

v. INS, 1 F.3d 1149 (11th Cir. 1993);

Katsis v. INS, 997 F.2d 1067 (3d Cir.

1993), cert denied, 114 S.Ct. 902 (1994);

Variamparambil v. INS, 831 F.2d 1362

(7th Cir. 1987); Rivera v. INS, 810 F.2d

540 (5th Cir. 1987). In addition, the

Ninth Circuit recently held that where

deportability is not contested, lawful

permanent resident status for purposes

of an application for a waiver under

section 212(c) of the Immigration and

Nationality Act (‘‘Act’’) terminates upon

the entry of an administratively final

order of exclusion or deportation.

Foroughi v. INS, 60 F.3d 510 (9th Cir.

1995).

The decisions in Butros and Vargas

were tied closely to the former

regulations regarding motions. In

Butros, the court emphasized that the

former section 3.2 was written very

broadly and concluded that since the

only expressed barrier to reopening or

reconsideration contained in the

regulation was actual departure from the

United States, the Board could not by

decision limit the right to reopening.

However, the court specifically

provided that the ‘‘Board could, no

doubt, alter this regulation’’ to allow
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations 18901

further restrictions. 990 F.2d. at 1144. In

Vargas, the Second Circuit also found

that the former regulations preserved an

alien’s right to move for reopening until

the occurrence of physical deportation.

The court reasoned that, although the

Board’s decision in Lok prevented

reopening by an alien who had not

accrued the required seven years prior

to a final administrative order of

deportation, the Second Circuit would

not allow the Board, through the denial

of a motion, to extend the Lok rationale

to terminate an alien’s previously

existing eligibility for section 212(c)

relief. 938 F.2d at 361. This final rule

addresses the ambiguity of the

regulatory language noted in the Second

and Ninth Circuit decisions by

establishing clear limits on the ability to

file a motion to reopen and the

concomitant effect on the alien’s status

as a lawful permanent resident. The

definition at section 1.1 will be applied

nationwide, which will promote the

goal of uniform application of the

immigration laws.

Sections 3.2(c)(1) and 3.23(b)(4) are

further amended to clarify that,

notwithstanding the provisions of

section 1.1(p) of this chapter, if an alien

accrues the seven years of lawful

unrelinquished domicile necessary for

eligibility for a waiver under section

212(c) of the Act prior to the entry of an

administratively final order of exclusion

or deportation, he or she may file a

motion to reopen for consideration or

further consideration of such an

application. An alien may not accrue

time toward the seven years of lawful

unrelinquished domicile required for

section 212(c) purposes after the entry

of a final administrative order of

exclusion or deportation.

(2) Motions To Reopen—Sections 3.2

and 3.23

Comment: Commenters noted that

motions to reopen can serve any of three

fundamental purposes: (i) to provide an

opportunity to bring new evidence to

light; (ii) to allow parties to avail

themselves of recent changes in the law;

and (iii) to provide an opportunity for

an applicant to seek additional relief

that was not previously available. Given

those purposes, commenters objected to

the rule’s time and number limitations

on motions to reopen.

The May 1995 proposed rule

expanded the filing period for motions

to reopen from 20 days to 90 days.

Commenters stated that this period was

insufficient to fulfill the purposes of

motions to reopen as set forth above.

Commenters advocated either the

elimination of any defined filing period

for motions to reopen or further

expansion of the filing period. In

support of this position, they cited to a

study conducted by the Attorney

General in 1991 (‘‘AG Study’’), see

summary at 68 INTERPRETER

RELEASES No. 27 at 907 (July 22, 1991),

which concluded that there was no

abuse of the motions process. From this

conclusion, commenters disputed the

necessity for any reform of the motions

process. A number of commenters

alternatively requested that a ‘‘good

cause’’ exception to the time and

number limitations be added to the new

provisions concerning motions to

reopen.

Some commenters requested clearer

language in section 3.2(c)(4) regarding

the motions to reopen and motions to

remand provision. Particularly,

commenters were concerned that the

rule required, rather than permitted, the

Board to remand a motion to reopen to

an Immigration Judge or a Service

Officer when an appeal had already

been filed. Commenters advocated a

rule that would expressly state that the

Board had discretion to render a

decision on a motion to reopen without

remanding the motion.

Response and Disposition: After

careful consideration, the Department

has decided to retain both the time and

the number limitations applicable to

motions to reopen. The provision

instituting motions reform is statutorily

required. The Immigration Act of 1990,

Pub. L. No. 101–649, 104 stat. 4978

(1990), states that ‘‘the Attorney General

shall issue regulations with respect to

* * * the period of time in which

motions to reopen and to reconsider

may be offered in deportation

proceedings, which regulations shall

include a limitation on the number of

such motions that may be filed and a

maximum time period for the filing of

such motions.’’ Immigration Act of 1990

at § 545(d), 104 stat. at 5066. The Joint

Explanatory Statement of the Committee

of Conference, H.R. Conf. Rep. No. 955,

101st Cong., 2d Sess. (1990)

(‘‘Conference Report’’), explained this

provision as follows: ‘‘Unless the

Attorney General finds reasonable

evidence to the contrary, the regulations

should state that such motions be made

within 20 days of the date of the final

determination in the proceeding and

that such motions be limited to one

motion to reopen and one motion to

reconsider.’’ H.R. Conf. Rep. No. 955 at

133.

Some commenters argued that the

Conference Report suggested that the

Attorney General has discretion to not

promulgate the regulations if she ‘‘finds

reasonable evidence to the contrary.’’

However, the Department of Justice

believes that the statutory directive to

promulgate regulations limiting motions

to reopen is mandatory. The Attorney

General is only given discretion to

determine the number of motions and

the length of time to file such motions.

It does not give the Attorney General

discretion to determine whether to

promulgate a rule putting limitations on

motions.

Moreover, in a recent case, the

Supreme Court noted that the

Immigration Act of 1990, which

amended the Act, demonstrated a

congressional intent to ‘‘expedite

petitions for review and to redress the

related problem of successive and

frivolous administrative appeals and

motions.’’ Stone v. INS, 115 S.Ct. 1537,

1546 (1995). Justice Kennedy, writing

for the majority, stated:

Congress’ intent in adopting and then

amending the Act was to expedite both the

initiation and the completion of the judicial

review process. * * * [A] principal purpose

of the 1990 amendments to the Act was to

expedite petitions for review and to redress

the related problem of successive and

frivolous administrative appeals and

motions. In the Immigration Act of 1990,

Congress * * * [f]irst * * * directed the

Attorney General to promulgate regulations

limiting the number of reconsideration and

reopening motions that an alien could file.

§ 545(b). Second, it instructed the Attorney

General to promulgate regulations specifying

the maximum time period for the filing of

those motions, hinting that a 20-day period

would be appropriate.

Stone v. INS, 115 S.Ct. at 1546 (emphasis

supplied).

Although the AG Study concluded

that there was not significant abuse of

the process, Congress has neither

rescinded or amended its mandate to

limit the number and time frames of

motions. Therefore, the Attorney

General’s obligation to comply with

Congress’ statutory directive is

unaffected by the conclusions of the AG

Study.

Prior to the final rulemaking,

provisions concerning a time limit for

filing motions to reopen were published

twice in proposed form. See 60 FR

24573 (May 9, 1995) and 59 FR 29386

(June 7, 1994). Consonant with the

Conference Report, the first proposed

rule provided for a 20-day time frame to

file a motion. The Department received

considerable comment regarding the

1994 proposed rule. In response to the

arguments raised by the commenters,

the May 1995 proposed rule provided

for an expanded 90-day time frame to

file motions to reopen. The Department

received considerable comment in

response to the May 1995 proposed rule,

with many commenters arguing that

even the 90-day time frame was
18902 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

inadequate for the reasons previously

stated.

After carefully weighing all of the

comments, the Department has decided

to retain the amount of time to file a

motion to reopen at 90 days as provided

in the May 1995 proposed rule. The 90-

day time period represents a

considerable extension beyond the 20

days suggested in the Conference

Report. A time frame of 90 days for

filing motions to reopen will provide

parties an opportunity to avail

themselves of changed law, facts, and

circumstances. By setting a time

limitation and retaining the one motion

limitation, the rule is consistent with

section 545 of the Immigration Act of

1990 and the directions of the

Conference Report. The 90-day time

period also conforms to the period

provided in section 106(a) of the Act for

filing a petition for review in federal

court from a final order of deportation

(except, of course, for aliens convicted

of an aggravated felony who are limited

to 30 days in which to file a petition for

review). Therefore, the 90-day period is

likely to promote consolidation of

petitions for review of final orders of

deportation and motions, thereby

increasing judicial efficiency.

The Department does not agree with

the commenters’ suggestions that a

‘‘good cause exception’’ would be an

appropriate procedural mechanism for

addressing exceptional cases that fall

beyond this rule’s time and number

limitations. Instead, section 3.2(a) of the

rule provides a mechanism that allows

the Board to reopen or reconsider sua

sponte and provides a procedural

vehicle for the consideration of cases

with exceptional circumstances.

The final rule corrects a technical

error found in the May 1995 proposed

rule regarding stays of deportation. In

that proposed rule, section 3.2(f)

indicated that except where a motion is

filed pursuant to the provisions of

section 3.23(b)(5), the filing of a motion

to reopen shall not stay the execution of

any decision. This language is identical

to that found in the prior June 1994

proposed rule. However, because of

renumbering in the May 1995 proposed

rule, section 3.2(f) should have

referenced section 3.23(b)(6), not section

3.23(b)(5) to remain consistent. This

oversight has been corrected although

the section numbering has again

changed. The correct cross reference in

the final rule has become section

3.23(b)(4)(iii).

The Department has clarified the

language of section 3.2(c)(4) by

replacing the word ‘‘shall’’ in the May

1995 proposed regulation with the word

‘‘may’’ in the final rule. This language

expressly recognizes the Board’s

discretion to decide whether to treat a

motion to reopen as a motion to remand

when it is filed at specified procedural

junctures, i.e., at the time of the filing

of an appeal or during the pendency of

such an appeal but prior to a final Board

decision. In such instances, motions to

remand are not subject to the time and

number limitations on motions to

reopen and motions to reconsider as

they occur before the entry of a final

administrative decision. For that reason,

the final rule drops the technically

incorrect time and number limitation

language that appeared in the proposed

rule. However, this provision does not

limit the Board’s discretion to resolve a

case without remanding it.

In order to provide more consistency

and uniformity in appellate procedures,

section 3.2(g)(3), regarding the motions

briefing schedule, has been changed to

provide the opposing party 13 days from

the date of service of the motion to file

a brief in opposition to a motion,

regardless of whether the motion is

before the Board or the Service.

(3) Motions To Reconsider—Sections

3.2 and 3.23

Comment: A number of commenters

objected to section 3.2(b) of the May

1995 proposed rule, which allowed a

petitioner to file only one motion to

reconsider within 30 days of the final

administrative decision, as unduly

restrictive. The proposed 30-day filing

period was increased from the 20-day

filing period of the June 1994 proposed

rule. However, commenters stated that

even the 30-day time limit would work

a hardship on litigants, particularly pro

se litigants. Furthermore, they stated

that the time limit might cut off

meritorious claims. Some commenters

found the 30-day time limit adequate.

Some commenters argued that the AG

Study supported the contention that

reform of the immigration motions

process is unnecessary. They also

disputed that motion reform was

mandated by the Immigration Act of

1990.

Response and Disposition: The final

rule retains the proposed rule’s

provisions regarding the time and

number limitations on motions to

reconsider. The Department believes

that these provisions afford parties a

sufficient opportunity to seek

reexamination of certain issues and also

respond to the mandates of the

Immigration Act of 1990 to impose time

and number limitations on motions.

The purpose of a motion to reconsider

a decision is to provide an opportunity

to reexamine the facts or to correct an

error of law. The time limitation ensures

that such reexamination occurs before

the facts surrounding the decision

become stale. The Department believes

that the 30-day time frame is an

appropriate time period to meet those

goals. Furthermore, it provides parties a

sufficient amount of time to draft and

file the motion and is consistent with

the 30-day time frame for filing a notice

of appeal. To make it clearer and more

accessible to the parties, section 3.23

has been reorganized.

(4) New Appeal Filing Procedures—

Sections 3.3, 3.8, 3.38, 242.21 and 246.7

Comment: The vast majority of the

commenters applauded the proposal to

streamline and centralize the appeal

process. They were particularly pleased

that the notice of appeal and the fees/

fee waiver requests would be filed

directly with the Board. However,

commenters were concerned that the

requirement to provide a detailed

statement of the reasons for appeal in

the notice of appeal essentially required

an appellant to argue his or her case

prematurely. They suggested that this

requirement would be particularly

burdensome to pro se and non-English

speaking appellants.

Commenters objected to the proposed

time frames for filing notices of appeal.

Specifically, they stated that a period of

15 calendar days from the issuance of an

Immigration Judge’s decision, where the

decision is rendered orally, and 20

calendar days from the mailing of an

Immigration Judge’s decision, where a

written decision is served by mail, was

too little time, particularly in light of the

notice of appeal’s detailed statement

requirement and delays in the mail

service.

Commenters further argued that the

appeals briefing schedule provision,

which accords non-detained aliens 30

days to file a brief and detained aliens

14 days to file a brief, was inequitable

and fundamentally unfair because it

treated two classes of appellants

differently. They also noted that the rule

created a particular hardship for

detained appellants who, because of the

fact of their detention, have difficulty

meeting filing deadlines. The

commenters were further concerned that

the rule could be understood to require

parties to file briefs prior to receipt of

the transcript.

Response and Disposition: The final

rule retains the provisions that

streamline and centralize the appeals

process. As outlined in the proposed

rule and republished in the final rule,

the new appeals system requires parties

to file all notices of appeal of decisions

of Immigration Judges and all fee-related

documents directly with the Board. The
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations 18903

final rule has been amended to provide

that a notice of appeal must be filed

within 30 calendar days after the

mailing of an Immigration Judge’s

written decision or within 30 days of

the stating of an Immigration Judge’s

oral decision. The time frame has been

increased in order to address concerns

raised both by the circuit courts of

appeals and the commenters regarding

the sufficiency of time to initiate the

appellate process. In keeping with the

Department’s goal of streamlining the

appeals process, the rule provides a

uniform filing process, whether the

Immigration Judge’s decision was

rendered orally or was written and

served by mail.

The new process addresses concerns,

identified by the Ninth Circuit, about

both the prior 10-day filing time period

for appeals and the requirement that

parties remit the fee in one forum and

file the notice of appeal in another. See

Gonzales-Julio v. INS, 34 F. 3d 820 (9th

Cir. 1994); Vlaicu v. INS, 998 F. 2d 758

(9th Cir. 1993). This final rule responds

to those concerns by expanding the

filing time for appeal to 30 days and by

requiring that the notice of appeal and

the fee be filed at the same place and

time.

Additionally, the final rule makes

uniform the briefing schedule for both

detained and non-detained appellants.

Although the proposed rule never

anticipated requiring parties to submit a

brief prior to transcript availability in

those cases which are transcribed, the

final rule contains clarifying language to

that effect.

The Department has retained the

requirement that parties specifically

identify their reasons for appeal on the

notice of appeal. The Board has

repeatedly found this statement

provides meaningful information that

aids the Board’s review of the cases.

Matter of Valencia, 19 I&N Dec. 354

(BIA 1986); Matter of Holguin, 13 I&N

Dec. 423 (BIA 1969). Furthermore, the

statement requirement has been

consistently upheld by the circuit

courts. Soriano v. INS, 45 F.3d 287 (8th

Cir. 1995); Nazakat v. INS, 981 F.2d

1146 (10th Cir. 1992); Toquero v. INS,

956 F.2d 193 (9th Cir. 1992); Lozada v.

INS, 857 F.2d 10 (1st Cir. 1988); BonneAnnee v. INS, 810 F.2d 1077 (11th Cir.

1987); Townsend v. INS, 799 F.2d 179

(5th Cir. 1986).

A new paragraph ‘‘(e)’’ has been

added to section 3.38 to inform aliens

that they are required to notify the

Board within five working days of any

changes of address or telephone number

and to inform the aliens’ representatives

that changes in a representative’s

business mailing address or telephone

number also should be submitted to the

Board. The change of address and

telephone number notification

requirement mirrors the reporting

requirements in section 3.15 relating to

proceedings before Immigration Judges.

Additionally, the Department will issue

a new Appeal Fee Waiver Request Form

(EOIR–26A) in conjunction with the

enactment of this final rule. Parties

unable to pay the fee fixed for an appeal

will be required to file this form with

their notice of appeal. The Department

notes that this constitutes a change from

the Board’s past practice of accepting in

pauperis affidavits and other informal

requests to waive fees. The new Appeal

Fee Waiver Request (Form EOIR–26A)

will provide a uniform mechanism for

requesting the Board to waive an appeal

fee.

(5) In Absentia Hearings—Sections 3.1,

3.23 and 242.21

Comments: Commenters correctly

asserted that section 242B(c) of the Act

regarding in absentia hearings applies

only to deportation proceedings.

Therefore, they argued, a provision

disallowing appeals from orders of

exclusion entered in absentia lacks

statutory authority. Commenters noted

that the statute does not authorize in

absentia exclusion hearings and

advocated the withdrawal of the

provision that provides for such

hearings.

One commenter suggested that the in

absentia hearing provisions in section

242B restrict only motions to reopen

and judicial review and do not bar the

timely filing of a notice of appeal on the

merits of the case where a respondent

receives notification of the in absentia

order prior to expiration of the time to

file an appeal. The commenter

advocated allowing direct appeals under

such circumstances.

Commenters also objected to section

3.23(b)(4)(iii), formerly section

3.23(b)(6), which specifies under what

circumstances an order of deportation

entered in absentia may be rescinded.

They noted that the rule makes no

provision for rescission of an order of

exclusion entered in absentia.

Response and Disposition: With

regard to in absentia hearings under

section 242B(c) of the Act, the

commenters are correct that the statute

only applies to deportation hearings and

does not apply to in absentia exclusion

hearings and, further, that appeals from

orders entered following such exclusion

hearings should be allowed. Therefore,

the provision in section 3.1(b)(1) of the

proposed regulation that stated that ‘‘no

appeal shall lie from an order of

exclusion entered in absentia’’ has been

removed. An appeal from an order of

exclusion entered in absentia is

permissible but must be filed within the

time limit for appeals set by section

3.38(b).

Further, an alien may file a motion to

reopen exclusion proceedings to rescind

an order of exclusion entered in

absentia. Such a motion must be

supported by evidence that the alien

had reasonable cause for his failure to

appear at the exclusion hearing. This

provision is consistent with the Board’s

decision in Matter of Haim, 19 I&N Dec.

641 (BIA 1988).

The rule retains the provision

prohibiting an appeal to the Board from

an Immigration Judge’s order of

deportation entered in absentia.

Congress restricted review of

deportation orders entered in absentia

in section 242B of the Act by providing

that such orders may only be rescinded

by filing a motion to reopen with the

Immigration Judge. See section

242B(c)(1) of the Act; Matter of

Gonzalez-Lopez, Interim Decision #3198

(BIA 1993). Further, the Board has

confirmed that sections 3.1(b) and 3.3

allow an alien to appeal to the Board

from an Immigration Judge’s denial of

such a motion to reopen an in absentia

decision. Matter of Gonzales-Lopez at 4.

In addition to restricting the manner

in which an in absentia order of

deportation may be rescinded, Congress

delayed eligibility for most forms of

relief from deportation for an alien

against whom a final order of

deportation is entered in absentia. See

section 242B(e) of the Act. Specifically,

where the alien fails to demonstrate

improper notice or exceptional

circumstances for failing to appear, the

alien must wait until five years after the

final order of deportation to apply for

relief such as voluntary departure,

suspension of deportation, or

adjustment of status. Accordingly, the

Department has determined that a bar

against direct appeals from an in

absentia deportation order of an

Immigration Judge to the Board is

consistent with the restrictive action

Congress has taken towards such in

absentia orders.

The Department considered the

commenters’ request for an appeal to the

Board on the merits of a deportation

case in which an in absentia order has

been entered. However, we note that

there exists the opportunity for review

of such an order in the federal courts.

Section 106 of the Act provides for

judicial review of final orders of

deportation including those entered in

absentia. Specifically, section

242(B)(c)(4) allows for judicial review of

an order entered in absentia under
18904 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

section 242B, regarding the validity of

the notice provided to the alien, the

reasons for the alien’s failure to appear,

and the question of whether the Service

demonstrated deportability by clear,

convincing, and unequivocal evidence.

Further, section 106(a)(5) of the Act

allows for the direct de novo review of

a final administrative order of

deportation in federal district court,

including one entered in absentia,

where the alien makes a non-frivolous

claim to be a national of the United

States. In sum, given Congress’

restrictive stance in section 242B of the

Act regarding review of orders of

deportation entered in absentia and in

light of the fact that avenues still exist

for review in federal court of such

orders, the Department has retained the

bar on direct appeals to the Board from

an Immigration Judge’s order of

deportation entered in abstentia.

This regulation has been drafted and

reviewed in accordance with Executive

Order 12866, section 1(b). The Attorney

General has determined that this rule is

not a significant regulatory action under

Executive Order 12866, section 3(f),

and, accordingly, this rule has not been

reviewed by the Office of Management

and Budget.

The Attorney General, in accordance

with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this final

rule and, by approving it, certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities.

This final rule will not have

substantial direct effects on the states,

on the relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with section 6 of Executive

Order 12612, it is determined that this

rule does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

List of Subjects

8 CFR Part 1

Administrative practice and

procedure, Immigration.

8 CFR Part 3

Administrative practice and

procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and

procedure, Authority delegations

(Government agencies), Freedom of

information, Privacy, Reporting and

record keeping requirements, Surety

bonds.

8 CFR Part 208

Administrative practice and

procedure, Aliens, Immigration,

Reporting and record keeping

requirements.

8 CFR Part 212

Administrative practice and

procedure, Aliens, Immigration,

Passports and visas, Reporting and

record keeping requirements.

8 CFR Part 242

Administrative practice and

procedure, Aliens.

8 CFR Part 246

Administrative practice and

procedure, Aliens, Immigration.

Accordingly, Chapter I of title 8 of the

Code of Federal Regulations is amended

as follows:

PART 1—DEFINITIONS

1. The authority citation for part 1

continues to read as follows:

Authority: 66 Stat. 173; 8 U.S.C. 1101; 28

U.S.C. 509, 510; 5 U.S.C. 301.

2. Section 1.1 is amended by adding

a new paragraph (p) to read as follows:

§ 1.1 Definitions.

* * * * *

(p) The term lawfully admitted for

permanent residence means the status

of having been lawfully accorded the

privilege of residing permanently in the

United States as an immigrant in

accordance with the immigration laws,

such status not having changed. Such

status terminates upon entry of a final

administrative order of exclusion or

deportation.

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

3. The authority citation for part 3

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103,

1252 note, 1252b, 1362; 28 U.S.C. 509, 510,

1746; sec. 2, Reorg. Plan No. 2 of 1950, 3

CFR, 1949–1953 Comp., p. 1002.

4. Section 3.1 is amended by revising

paragraphs (b)(1), (b)(2), and (c) to read

as follows:

§ 3.1 General authorities.

* * * * *

(b) * * *

(1) Decisions of Immigration Judges in

exclusion cases, as provided in part 236

of this chapter.

(2) Decisions of Immigration Judges in

deportation cases, as provided in part

242 of this chapter, except that no

appeal shall lie from an order of

deportation entered in absentia. No

appeal shall lie from an order of an

Immigration Judge under § 244.1 of this

chapter granting voluntary departure

within a period of at least 30 days, if the

sole ground of appeal is that a greater

period of departure time should have

been fixed.

* * * * *

(c) Jurisdiction by certification. The

Commissioner, or any other duly

authorized officer of the Service, any

Immigration Judge, or the Board may in

any case arising under paragraph (b) of

this section certify such case to the

Board. The Board in its discretion may

review any such case by certification

without regard to the provisions of § 3.7

if it determines that the parties have

already been given a fair opportunity to

make representations before the Board

regarding the case, including the

opportunity request oral argument and

to submit a brief.

* * * * *

5. Section 3.2 is revised to read as

follows:

§ 3.2 Reopening or reconsideration.

(a) General. The Board may at any

time reopen or reconsider on its own

motion any case in which it has

rendered a decision. A request to reopen

or reconsider any case in which a

decision has been made by the Board,

which request is made by the Service,

or by the party affected by the decision,

must be in the form of a written motion

to the Board. The decision to grant or

deny a motion to reopen or reconsider

is within the discretion of the Board,

subject to the restrictions of this section.

The Board has discretion to deny a

motion to reopen even if the party

moving has made out a prima facie case

for relief.

(b) Motion to reconsider. (1) A motion

to reconsider shall state the reasons for

the motion by specifying the errors of

fact or law in the prior Board decision

and shall be supported by pertinent

authority. A motion to reconsider a

decision rendered by an Immigration

Judge or Service officer that is pending

when an appeal is filed with the Board,

or that is filed subsequent to the filing

with the Board of an appeal from the

decision sought to be reconsidered,

shall be deemed a motion to remand the

decision for further proceedings before

the Immigration Judge or the Service

officer from whose decision the appeal

was taken. Such motion, which shall be

consolidated with and considered by

the Board in connection with any

appeal to the Board, is subject to the

time and numerical limitations of

paragraph (b)(2) of this section.

(2) A motion to reconsider a decision

must be filed with the Board within 30
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations 18905

days after the mailing of the Board

decision or on or before July 31, 1996,

whichever is later. A party may file only

one motion to reconsider any given

decision and may not seek

reconsideration of a decision denying a

previous motion to reconsider.

(c) Motion to reopen. (1) A motion to

reopen proceedings shall state the new

facts that will be proven at a hearing to

be held if the motion is granted and

shall be supported by affidavits or other

evidentiary material. A motion to

reopen proceedings for the purpose of

submitting an application for relief must

be accompanied by the appropriate

application for relief and all supporting

documentation. A motion to reopen

proceedings shall not be granted unless

it appears to the Board that evidence

sought to be offered is material and was

not available and could not have been

discovered or presented at the former

hearing; nor shall any motion to reopen

for the purpose of affording the alien an

opportunity to apply for any form of

discretionary relief be granted if it

appears that the alien’s right to apply for

such relief was fully explained to him

or her and an opportunity to apply

therefore was afforded at the former

hearing, unless the relief is sought on

the basis of circumstances that have

arisen subsequent to the hearing.

Subject to the other requirements and

restrictions of this section, and

notwithstanding the provisions in

§ 1.1(p) of this chapter, a motion to

reopen proceedings for consideration or

further consideration of an application

for relief under section 212(c) of the Act

(8 U.S.C. 1182(c)) may be granted if the

alien demonstrates that he or she was

statutorily eligible for such relief prior

to the entry of the administratively final

order of deportation.

(2) Except as provided in paragraph

(c)(3) of this section, a party may file

only one motion to reopen proceedings

(whether before the Board or the

Immigration Judge) and that motion

must be filed not later than 90 days after

the date on which the final

administrative decision was rendered in

the proceeding sought to be reopened,

or on or before September 30, 1996,

whichever is later.

(3) The time and numerical

limitations set forth in paragraph (c)(2)

of this section shall not apply to a

motion to reopen proceedings:

(i) Filed pursuant to the provisions of

§ 3.23(b)(4)(iii);

(ii) To apply or reapply for asylum, or

withholding of deportation, based on

changed circumstances arising in the

country of nationality or in the country

to which deportation has been ordered,

if such evidence is material and was not

available and could not have been

discovered or presented at the former

hearing; or

(iii) Agreed upon by all parties and

jointly filed. Notwithstanding such

agreement, the parties may contest the

issues in a reopened proceeding.

(4) A motion to reopen a decision

rendered by an Immigration Judge or

Service officer that is pending when an

appeal is filed, or that is filed while an

appeal is pending before the Board, may

be deemed a motion to remand for

further proceedings before the

Immigration Judge or the Service officer

from whose decision the appeal was

taken. Such motion may be consolidated

with, and considered by the Board in

connection with, the appeal to the

Board.

(d) Departure or deportation. A

motion to reopen or a motion to

reconsider shall not be made by or on

behalf of a person who is the subject of

deportation or exclusion proceedings

subsequent to his or her departure from

the United States. Any departure from

the United States, including the

deportation of a person who is the

subject of deportation or exclusion

proceedings, occurring after the filing of

a motion to reopen or a motion to

reconsider, shall constitute a

withdrawal of such motion.

(e) Judicial proceedings. Motions to

reopen or reconsider shall state whether

the validity of the deportation or

exclusion order has been or is the

subject of any judicial proceeding and,

if so, the nature and date thereof, the

court in which such proceeding took

place or is pending, and its result or

status. In any case in which a

deportation or exclusion order is in

effect, any motion to reopen or

reconsider such order shall include a

statement by or on behalf of the moving

party declaring whether the subject of

the order is also the subject of any

pending criminal proceeding under

section 242(e) of the Act (8 U.S.C.

1252(e)), and, if so, the current status of

that proceeding. If a motion to reopen or

reconsider seeks discretionary relief, the

motion shall include a statement by or

on behalf of the moving party declaring

whether the alien for whose relief the

motion is being filed is subject to any

pending criminal prosecution and, if so,

the nature and current status of that

prosecution.

(f) Stay of deportation. Except where

a motion is filed pursuant to the

provisions of § 3.23(b)(4)(iii), the filing

of a motion to reopen or a motion to

reconsider shall not stay the execution

of any decision made in the case.

Execution of such decision shall

proceed unless a stay of execution is

specifically granted by the Board, the

Immigration Judge, or an authorized

officer of the Service.

(g) Filing procedures. (1) English

language, entry of appearance, and

proof of service requirements. A motion

and any submission made in

conjunction with a motion must be in

English or accompanied by a certified

English translation. If the moving party,

other than the Service, is represented, a

Notice of Entry of Appearance as

Attorney or Representative Before the

Board (Form EOIR–27) must be filed

with the motion. In all cases, the motion

shall include proof of service on the

opposing party of the motion and all

attachments.

(2) Distribution of motion papers. (i)

A motion to reopen or motion to

reconsider a decision of the Board

pertaining to proceedings before an

Immigration Judge shall be filed directly

with the Board. Such motion must be

accompanied by a check, money order,

or fee waiver request in satisfaction of

the fee requirements of § 3.8. The record

of proceeding pertaining to such a

motion shall be forwarded to the Board

upon the request or order of the Board.

(ii) A motion to reopen or a motion to

reconsider a decision of the Board

pertaining to a matter initially

adjudicated by an officer of the Service

shall be filed with the officer of the

Service having administrative control

over the record of proceeding.

(iii) If the motion is made by the

Service in proceedings in which the

Service has administrative control over

the record of proceedings, the record of

proceedings in the case and the motion

shall be filed directly with the Board. If

such motion is filed directly with an

office of the Service, the entire record of

proceeding shall be forwarded to the

Board by the Service officer promptly

upon receipt of the briefs of the parties,

or upon expiration of the time allowed

for the submission of such briefs.

(3) Briefs and response. The moving

party may file a brief if it is included

with the motion. If the motion is filed

directly with the Board pursuant to

paragraph (g)(2)(i) of this section, the

opposing party shall have 13 days from

the date of service of the motion to file

a brief in opposition to the motion

directly with the Board. If the motion is

filed with an office of the Service

pursuant to paragraph (g)(2)(ii) of this

section, the opposing party shall have

13 days from the date of filing of the

motion to file a brief in opposition to

the motion directly with the office of the

Service. In all cases, briefs and any

other filings made in conjunction with

a motion shall include proof of service

on the opposing party. The Board, in its
18906 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

discretion, may extend the time within

which such brief is to be submitted and

may authorize the filing of a brief

directly with the Board. A motion shall

be deemed unopposed unless a timely

response is made. The Board may, in its

discretion, consider a brief filed out of

time.

(h) Oral argument. A request for oral

argument, if desired, shall be

incorporated in the motion to reopen or

reconsider. The Board, in its discretion,

may grant or deny requests for oral

argument.

(i) Ruling on motion. Rulings upon

motions to reopen or motions to

reconsider shall be by written order. If

the order directs a reopening and further

proceedings are necessary, the record

shall be returned to the Immigration

Court or the officer of the Service having

administrative control over the place

where the reopened proceedings are to

be conducted. If the motion to

reconsider is granted, the decision upon

such reconsideration shall affirm,

modify, or reverse the original decision

made in the case.

6. Section 3.3 is revised to read as

follows:

§ 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 § 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 § 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 § 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 § 3.8 are satisfied.

(b) Statement of the basis of appeal.

The party taking the appeal must

identify the reasons for the appeal in the

Notice of Appeal (Form EOIR–26 or

Form EOIR–29) or in any attachments

thereto, in order to avoid summary

dismissal pursuant to § 3.1(d)(1–a)(i).

The statement must specifically identify

the findings of fact, the conclusions of

law, or both, that are being challenged.

If a question of law is presented,

supporting authority must be cited. If

the dispute is over the findings of fact,

the specific facts contested must be

identified. Where the appeal concerns

discretionary relief, the appellant must

state whether the alleged error relates to

statutory grounds of eligibility or to the

exercise of discretion and must identify

the specific factual and legal finding or

findings that are being challenged. The

appellant must also indicate in the

Notice of Appeal (Form EOIR–26 or

Form EOIR–29) whether he or she

desires oral argument before the Board

and whether he or she will be filing a

separate written brief or statement in

support of the appeal.

(c) Briefs. (1) Appeal from decision of

an Immigration Judge. Briefs in support

of or in opposition to an appeal from a

decision of an Immigration Judge shall

be filed directly with the Board. In those

cases that are transcribed, the briefing

schedule shall be set by the Board after

the transcript is available. An appellant

shall be provided 30 days in which to

file a brief, unless a shorter period is

specified by the Board. The appellee

shall have the same period of time in

which to file a reply brief that was

initially granted to the appellant to file

his or her brief. The time to file a reply

brief commences from the date upon

which the appellant’s brief was due, as

originally set or extended by the Board.

The Board, upon written motion, may

extend the period for filing a brief or a

reply brief for up to 90 days for good

cause shown. In its discretion, the Board

may consider a brief that has been filed

out of time. All briefs, filings, and

motions filed in conjunction with an

appeal shall include proof of service on

the opposing party.

(2) Appeal from decision of a Service

officer. Briefs in support of or in

opposition to an appeal from a decision

of a Service officer shall be filed directly

with the office of the Service having

administrative control over the file in

accordance with a briefing schedule set

by that office. The alien shall be

provided 30 days in which to file a

brief, unless a shorter period is specified

by the Service officer from whose

decision the appeal is taken. The

Service shall have the same period of

time in which to file a reply brief that

was initially granted to the alien to file

his or her brief. The time to file a reply

brief commences from the date upon

which the alien’s brief was due, as

originally set or extended. Upon written

request of the alien, the Service officer

from whose decision the appeal is taken

or the Board may extend the period for

filing a brief for good cause shown. The

Board may authorize the filing of briefs

directly with the Board. In its

discretion, the Board may consider a

brief that has been filed out of time. All

briefs and other documents filed in

conjunction with an appeal, unless filed

by an alien directly with a Service

office, shall include proof of service on

the opposing party.

(d) Effect of certification. The

certification of a case, as provided in

this part, shall not relieve the party

affected from compliance with the

provisions of this section in the event

that he or she is entitled and desires to

appeal from an initial decision, nor

shall it serve to extend the time

specified in the applicable parts of this

chapter for the taking of an appeal.

(e) Effect of departure from the United

States. Departure from the United States

of a person who is the subject of

deportation proceedings, prior to the

taking of an appeal from a decision in

his or her case, shall constitute a waiver

of his or her right to appeal.

7. Section 3.4 is revised to read as

follows:
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations 18907

§ 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

§ 3.5, the decision made in the case

shall be final to the same extent as if no

appeal had been taken. If the record has

been forwarded on appeal, the

withdrawal of the appeal shall be

forwarded to the Board and, if no

decision in the case has been made on

the appeal, the record shall be returned

and the initial decision shall be final to

the same extent as if no appeal had been

taken. If a decision on the appeal has

been made by the Board in the case,

further action shall be taken in

accordance therewith. Departure from

the United States of a person who is the

subject of deportation proceedings

subsequent to the taking of an appeal,

but prior to a decision thereon, shall

constitute a withdrawal of the appeal,

and the initial decision in the case shall

be final to the same extent as though no

appeal had been taken.

8. Section 3.5 is revised to read as

follows:

§ 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:

§ 3.6 Stay of execution of decision.

(a) Except as provided under

§ 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 § 3.23 or

§ 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 § 3.23(b)(4)(ii). The Board

may, in its discretion, stay deportation

while an appeal is pending from any

such order if no stay has been granted

by the Immigration Judge or a Service

officer.

10. Section 3.7 is revised to read as

follows:

§ 3.7 Notice of Certification.

Whenever, in accordance with the

provisions of § 3.1(c), a case is certified

to the Board, the alien or other party

affected shall be given notice of

certification. An Immigration Judge or

Service officer may certify a case only

after an initial decision has been made

and before an appeal has been taken. If

it is known at the time the initial

decision is rendered that the case will

be certified, the notice of certification

shall be included in such decision and

no further notice of certification shall be

required. If it is not known until after

the initial decision is rendered that the

case will be certified, the office of the

Service or the Immigration Court having

administrative control over the record of

proceeding shall cause a Notice of

Certification to be served upon the

parties. In either case, the notice shall

inform the parties that the case is

required to be certified to the Board and

that they have the right to make

representations before the Board,

including the making of a request for

oral argument and the submission of a

brief. If either party desires to submit a

brief, it shall be submitted to the office

of the Service or the Immigration Court

having administrative control over the

record of proceeding for transmittal to

the Board within the time prescribed in

§ 3.3(c). The case shall be certified and

forwarded to the Board by the office of

the Service or Immigration Court having

administrative jurisdiction over the case

upon receipt of the brief, or upon the

expiration of the time within which the

brief may be submitted, or upon receipt

of a written waiver of the right to submit

a brief. The Board in its discretion may

elect to accept for review or not accept

for review any such certified case. If the

Board declines to accept a certified case

for review, the underlying decision shall

become final on the date the Board

declined to accept the case.

11. Section 3.8 is revised to read as

follows:

§ 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 § 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 § 3.2(g), shall be accompanied by the

fee specified in applicable provisions of

§ 103.7(b)(1) of this chapter. Fees shall

be paid by check or money order

payable to the ‘‘United States

Department of Justice.’’ Remittances

must be drawn on a bank or other

institution located in the United States

and be payable in United States

currency. A remittance shall not satisfy

the fee requirements of this section if

the remittance is found uncollectible.

(b) Appeal from decision of a Service

officer or motion within the jurisdiction

of the Board. Except as provided in

paragraph (c) of this section, a Notice of

Appeal to the Board of Immigration

Appeals of Decision of District Director

(Form EOIR–29), or a motion related to

such a case filed under this part by any

person other than an officer of the

Service, filed directly with the Service

shall be accompanied by the appropriate

fee specified, and remitted in

accordance with the provisions of

§ 103.7 of this chapter.

(c) Waiver of fees. The Board may, in

its discretion, authorize the prosecution

of any appeal or any motion over which

the Board has jurisdiction without

payment of the required fee. In any case

in which an alien or other party affected

is unable to pay the fee fixed for an

appeal or motion, he or she shall file

with the Notice of Appeal (Form EOIR–

26 or Form EOIR–29) or motion, an

Appeal Fee Waiver Request, (Form

EOIR–26A). If the request does not

establish the inability to pay the

required fee, the appeal or motion will

not be deemed properly filed.

12. Section 3.23 is amended by

revising paragraph (b) to read as follows:
18908 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

§ 3.23 Motions.

* * * * *

(b) Reopening/Reconsideration. (1)

The Immigration Judge may upon his or

her own motion, or upon motion of the

trial attorney or the alien, reopen or

reconsider any case in which he or she

has made a decision, unless jurisdiction

in the case is vested in the Board of

Immigration Appeals under part 3 of

this chapter. If the Immigration Judge is

unavailable or unable to adjudicate the

motion to reopen, the Chief Immigration

Judge or his delegate shall reassign such

motion to another Immigration Judge.

Motions to reopen or reconsider a

decision of the Immigration Judge must

filed with the Immigration Court having

administrative control over the record of

proceeding. Such motions shall comply

with applicable provisions of 8 CFR

208.4, 208.19, and 242.22. The

Immigration Judge may set and extend

time limits for replies to motions to

reopen or reconsider. A motion shall be

deemed unopposed unless timely

response is made. A motion to

reconsider shall state the reasons for the

motion and shall be supported by

pertinent authority. Any motion to

reopen for the purpose of acting on an

application for relief must be

accompanied by the appropriate

application for relief and all supporting

documents.

(2) Upon request by an alien in

conjunction with a motion to reopen or

a motion to reconsider, the Immigration

Judge may stay the execution of a final

order of deportation or exclusion. The

filing of a motion to reopen pursuant to

the provisions of paragraph (b)(4)(iii) of

this section shall stay the deportation of

the alien pending decision on the

motion and the adjudication of any

properly filed administrative appeal.

(3) A motion to reconsider must be

filed on or before July 31, 1996, on

which the decision for which

reconsideration is being sought was

rendered, or whichever is later. A party

may file only one motion to reconsider

any given decision and may not seek

reconsideration of a decision denying a

previous motion to reconsider.

(4) A motion to reopen will not be

granted unless the Immigration Judge is

satisfied that evidence sought to be

offered is material and was not available

and could not have been discovered or

presented at the hearing. A motion to

reopen will not be granted for the

purpose of providing the alien an

opportunity to apply for any form of

discretionary relief if the alien’s rights

to make such application were fully

explained to him or her by the

Immigration Judge and he or she was

afforded an opportunity to apply at the

hearing, unless the relief is sought on

the basis of circumstances that have

arisen subsequent to the hearing.

Subject to the other requirements and

restrictions of this section, and

notwithstanding the provisions in 1.1(p)

of this chapter, a motion to reopen

proceedings for consideration or further

consideration of an application for relief

under section 212(c) of the Act (8 U.S.C.

1182(c)) may be granted if the alien

demonstrates that he or she was

statutorily eligible for such relief prior

to the entry of the administratively final

order of deportation.

(i) Except as provided in paragraph

(b)(4)(ii) of this section, a party may file

only one motion to reopen proceedings

(whether before the Board or the

Immigration Judge) and that motion

must be filed not later than 90 after the

date on which the final administrative

decision was rendered in the proceeding

sought to be reopened, or on or before

September 30, 1996, whichever is later.

(ii) The time and numerical

limitations set forth in paragraph

(b)(4)(i) of this section shall not apply to

a motion to reopen filed pursuant to the

provisions of paragraph (b)(4)(iii) of this

section, or to a motion to reopen

proceedings to apply or reapply for

asylum or for withholding of

deportation based on changed

circumstances, which arise subsequent

to the conclusion of proceedings, in the

country of nationality or in the country

to which deportation has been ordered,

or to a motion to reopen agreed upon by

all parties and jointly filed.

(iii) A motion to reopen deportation

proceedings to rescind an order of

deportation entered in absentia must be

filed:

(A) Within 180 days after the date of

the order of deportation. The motion

must demonstrate that the failure to

appear was because of exceptional

circumstances beyond the control of the

alien (e.g., serious illness of the alien or

death of an immediate relative of the

alien, but not including less compelling

circumstances); or

(B) At any time if the alien

demonstrates that the alien did not

receive notice in accordance with

subsection 242B(a)(2) of the Act (8

U.S.C. 1252b(a)(2)) and notice was

required pursuant to such subsection; or

the alien demonstrates that the alien

was in federal or state custody and did

not appear through no fault of the alien.

(iv) A motion to reopen exclusion

hearings on the basis that the

Immigration Judge improperly entered

an order of exclusion in absentia must

be supported by evidence that the alien

had reasonable cause for his failure to

appear.

13. Section 3.24 is revised to read as

follows:

§ 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

§ 103.7 of this chapter. Any such fee

may be waived by the Immigration

Judge upon a showing that the

respondent/applicant is incapable of

paying the fees because of indigency. A

properly executed affidavit or unsworn

declaration made pursuant to 28 U.S.C.

1746 by the respondent/applicant must

accompany the request for waiver of

fees and shall substantiate the indigency

of the respondent/application.

14. Section 3.31 is amended by

revising paragraph (b) to read as follows:

§ 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 § 3.24. Except as

provided in § 3.8(a)(c), any fee relating

to Immigration Judge proceedings shall

be paid to, and accepted by, any Service

office authorized to accept fees for other

purposes pursuant to § 103.7(a) of this

chapter.

* * * * *

15. Section 3.38 is amended by

revising paragraph (b); redesignating

paragraphs (c) and (d) as paragraphs (f)

and (g), respectively; and adding new

paragraphs (c),(d) and (e) to read as

follows:

§ 3.38 Appeals.

* * * * *

(b) The Notice of Appeal to the Board

of Immigration Appeals of Decision of

Immigration Judge (Form EOIR–26)

shall be filed directly with the Board of

Immigration Appeals within 30 calendar

days after the stating of an Immigration

Judge’s oral decision or the mailing of

an Immigration Judge’s written decision.

If the final date for filing falls on a

Saturday, Sunday, or legal holiday, this

appeal time shall be extended to the

next business day. A Notice of Appeal

(Form EOIR–26) may not be filed by any

party who has waived appeal.

(c) The date of filing of the Notice of

Appeal (Form EOIR–26) shall be the

date the Notice is received by the Board.

(d) A Notice of Appeal (Form EOIR–

26) must be accompanied by the

appropriate fee or by an Appeal Fee

Waiver Request (Form EOIR–26A). If the

fee is not paid or the Appeal Fee Waiver
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations 18909

Request (Form EOIR–26A) is not filed

within the specified time period

indicated in paragraph(b) of this section,

the appeal will not be deemed properly

filed and the decision of the

Immigration Judge shall be final to the

same extent as though no appeal had

been taken.

(e) Within five working days of any

change of address, an alien must

provide written notice of the change of

address on Form EOIR–33 to the Board.

Where a party is represented, the

representative should also provide to

the Board written notice of any change

in the representative’s business mailing

address.

* * * * *

PART 103—POWERS AND DUTIES OF

SERVICE OFFICERS; AVAILABILITY

OF SERVICE RECORDS

16. The authority citation for part 103

continues to read as follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C.

1101, 1103, 1201, 1252 note, 1252b, 1304,

1356; 31 U.S.C. 9701; E.O. 12356, 47 FR

14874, 15557, 3 CFR, 1982 Comp., p. 166; 8

CFR part 2.

§ 103.5 [Amended]

17. In § 103.5, paragraph (a)(1)(i) is

amended by revising the phrase ‘‘parts

210, 242, or 245a’’ in the first sentence

to read ‘‘parts 3, 210, 242 and 245a,’’.

18. In § 103.7, paragraph (a) is revised

to read as follows:

§ 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 § 3.8(a) of

this chapter, any fee relating to any

Executive Office for Immigration

Review proceeding shall be paid to, and

accepted by, any Service office

authorized to accept fees. Payment of

any fee under this section does not

constitute filing of the document with

the Board or with the Immigration

Court. The Service shall return to the

payer, at the time of payment, a receipt

for any fee paid. The Service shall also

return to the payer any documents,

submitted with the fee, relating to any

Immigration Judge proceeding. A charge

of $5 will be imposed if a check in

payment of a fee is not honored by the

bank on which it is drawn. An issued

receipt for any such remittance shall not

be binding if the remittance is found

uncollectible. Remittances must be

drawn on a bank or other institution

located in the United States and be

payable in United States currency. Fees

in the form of postage stamps shall not

be accepted. Remittances to the Service

shall be made payable to the

‘‘Immigration and Naturalization

Service,’’ except that in case of

applicants residing in the Virgin Islands

of the United States, the remittances

shall be made payable to the

‘‘Commissioner of Finance of the Virgin

Islands’’ and, in the case of applicants

residing in Guam, the remittances shall

be made payable to the ‘‘Treasurer,

Guam.’’ If application to the Service is

submitted from outside the United

States, remittance may be made by bank

international money order or foreign

draft drawn on a financial institution in

the United States and payable to the

Immigration and Naturalization Service

in United States currency. Remittances

to the Board shall be made payable to

the ‘‘United States Department of

Justice.’’

* * * * *

PART 208—PROCEDURES FOR

ASYLUM AND WITHHOLDING OF

DEPORTATION

19. The authority citation for part 208

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252,

1252 note, 1252b, 1253, 1282 and 1283; 31

U.S.C. 9701; and 8 CFR part 2.

20. In § 208.19, paragraph (a) is

revised to read as follows:

§ 208.19 Motion to reopen or reconsider.

(a) A proceeding in which asylum or

withholding of deportation was denied

may be reopened or a decision from

such a proceeding reconsidered for

proper cause upon motion pursuant to

the requirements of 8 CFR 3.2, 3.23,

103.5, and 242.22 where applicable.

* * * * *

PART 236—EXCLUSION OF ALIENS

21. The authority citation for part 236

continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225,

1226, 1362.

22. Section 236.7 is revised to read as

follows:

§ 236.7 Appeals.

Except as limited by section 236 of

the Act, an appeal from a decision of an

Immigration Judge under this part may

be taken by either party pursuant to

§ 3.38 of this chapter.

PART 242—PROCEEDINGS TO

DETERMINE DEPORTABILITY OF

ALIENS IN THE UNITED STATES:

APPREHENSION, CUSTODY,

HEARING, AND APPEAL

23. The authority citation for part 242

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1186a,

1251, 1252, 1252 note, 1252a, 1252b, 1254,

1362; 8 CFR part 2.

§ 242.19 [Amended]

24. In § 242.19, the form number ‘‘I–

290A’’ is removed each time it appears

and, in its place, the form number

‘‘EOIR–26’’ is added in paragraphs (6)

and (c).

25. In § 242.21, paragraph (a) is

revised to read as follows:

§ 242.21 Appeals.

(a) Pursuant to part 3 of this chapter,

an appeal shall lie from a decision of an

Immigration Judge to the Board, except

that no appeal shall lie from an order of

deportation entered in absentia. The

procedures regarding the filing of a

Notice of Appeal (Form EOIR–26), fees,

and briefs are set forth in §§ 3.3, 3.31,

and 3.38 of this chapter. An appeal shall

be filed within 30 calendar days after

the mailing of a written decision, the

stating of an oral decision, or the service

of a summary decision. The filing date

is defined as the date of receipt of the

Notice of Appeal by the Board of

Immigration Appeals. The reasons for

the appeal shall be stated in the Notice

of Appeal (Form EOIR–26) in

accordance with the provisions of

§ 3.3(b) of this chapter. Failure to do so

may constitute a ground for dismissal of

the appeal by the Board pursuant to

§ 3.1(d)(1–a) of this chapter.

* * * * *

26. Section 242.22 is amended by

revising the first sentence and by adding

a sentence at the end of the section, to

read as follows:

§ 242.22 Reopening or reconsideration.

Motions to reopen or reconsider are

subject to the requirements and

limitations set forth in § 3.23 of this

chapter. * * * The filing of a motion

to reopen pursuant to the provisions of

§ 3.23(b)(4)(ii) of this chapter shall stay

the deportation of the alien pending the

disposition of the motion and the

adjudication of any properly filed

administrative appeal.

PART 246—RESCISSION OF

ADJUSTMENT OF STATUS

27. The authority citation for part 246

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1255, 1256,

1259.
18910 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Rules and Regulations

28. Section 246.7 is revised to read as

follows:

§ 246.7 Appeals.

Pursuant to part 3 of this chapter, an

appeal shall lie from a decision of an

Immigration Judge under this part to the

Board of Immigration Appeals except

that no appeal shall lie from an order of

deportation entered in absentia. An

appeal shall be taken within 30 days

after the mailing of a written decision or

the stating of an oral decision. The

reasons for the appeal shall be

specifically identified in the Notice of

Appeal (Form EOIR 26); failure to do so

may constitute a ground for dismissal of

the appeal by the Board.

Dated: April 16, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96–10157 Filed 4–26–96; 8:45 am]

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