Interim Decision #3198 

MATTER OF GONZALEZ-LOPEZ 

In Deportation Proceedings 

A-72016426 

Decided by Board March 9, 1993 

(1) The Board of Immigration Appeals is without authority to consider an appeal from 

an in absentia order made under the deportation procedures specified under section 

242(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § I252(b)(1) (Supp. II 

1990), and section 242B(c)(l) of the Act, 8 U.S.C. § 1252b(c)(1) (Supp. HI 1991), 

where section 242B(cX3) of the Act clearly shows that any in absentia order made 

under these new deportation procedures may only be rescinded by filing a motion to 

reopen with the innuig,tativn judge. 

(2) An alien may take an appeal to the Board of Immigration Appeals from an 

immigration judge's denial of a motion to reopen filed for purposes of seeking the 

rescission of the immigration judge's in absentia order pursuant to section 242B(c)(3) 

of the Act. 

(3) An alien may properly appeal an immigration judge's in absentia order to the Board 

of Immigration Appeals, or file a motion to reopen with the immigration judge in the 

circumstances set forth in Matter of Haim, 19 I&N Dec. 641 (BIA 1988), if the in 

absentia order was rendered in exclusion proceedings or in deportation proceedings 

where service or attempted service of the notice of the hearing for which the alien 

failed to appear was made prior to June 13, 1992, the effective date for the new 

deportation procedures specified in section 242B of the Act_ 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(1)(B) 

inspection 

ON BEHALF OF RESPONDENT: 

Vernon D. Gutjahr, Esquire 

3434 Haines Way. Suite 102 

Falls Church, Virginia 22041 

[8 U.S.C. § 1251(a)(1)(B)j—Entered without 

ON BEHALF OF SERVICE 

William C. Peterson 

General Attorney 

BY: Milhollan, Chairman; Morris, Vacca, and Heilman, Board Members 

In a decision dated September 21, 1992, an immigration judge 

found the respondent deportable as charged under section 24 1(a)(1)(B) 

of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) 

(Supp. II 1990), as an alien who had entered the United States without 

inspection, and ordered him deported from the United States to El 

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Interim Decision #3198 

Salvador. The decision was rendered following a hearing held in 

absentia due to the respondent's failure to appear. The respondent has 

appealed from that decision. However, the record will be returned to 

the Office of the Immigration Judge without further Board action, as 

we are precluded by statute from considering the appeal. 

Section 242(b) of the Act, 8 U.S.C. § 1252(b) (Supp. II 1990), in 

pertinent part, provides as follows: 

If any alien has been given a reasonable opportunity to be present at a proceeding 

under this section, and without reasonable cause fails or refuses to attend or remain 

in attendance at such proceeding, the special inquiry officer may proceed to a 

determination in like manner as if the alien were present. 

The Board has for some time had the authority to consider direct 

appeals from an immigration judge's in absentia order. See generally 8 

C.F.R. §§ 3.1(b)(1), (2) (1992). However, the deportation proceedings 

in the case before us, including the issuance and service of the Order to 

Show Cause and Notice of Hearing (Form 1-221) on July 26, 1992, the 

subsequent notice of the date of the hearing in question, and the in 

absentia hearing were conducted under the deportation procedures 

specified in newly effective section 242B of the Act, 8 U.S.C. § 1252b 

(Supp. III 1991). Section 242B, which was inserted in the Act by 

section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 

104 Stat. 4978, 5061, and was amended by section 306(b)(6) of the 

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L No. 102-232, 105 Stat. 1733, 1753, became 

effective as to subsections (a), (b), (c), and (e)(1) on June 13, 1992. See 

section 545(g) of the Immigration Act of 1990, 104 Stat. at 5066; see 

also 57 Fed. Reg. 5180 (1992); 56 Fed. Reg. 38,463, 38,464 (1991). 

Section 242B(c) of the Act was properly applicable to the deportation 

proceedings before us. That section provides in pertinent part: 

(I) IN GENERAL.- Any alien who, after written notice required under subsection 

(a)(2) has been provided to the alien or the alien's counsel of record, does not attend 

a proceeding under section 242, shall be ordered deported under section 242(b)(1) in 

absentia if the Service establishes by clear, unequivocal, and convincing evidence 

that, the written notice was so provided and that the alien is deportable. The written 

notice by the Attorney General shall be considered sufficient for purposes of this 

paragraph if provided at the most recent address provided under subsection (a)(1)(F). 

(2) NO NOTICE IF FAILURE TO PROVIDE ADDRESS INFORMATION.- No 

written notice shall be required under paragraph (1) if the alien has failed to provide 

the address required under subsection (aXl)(F). 

Sections 242B(c)(1), (2) of the Act. 

On appeal to this Board, the respondent contends through counsel 

that she was not afforded proper notice of her hearing. However, the 

Board is without authority to consider her appeal, as we are precluded 

from doing so by section 242B(c)(3) of the Act. That section provides: 

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Interim Decision #3198 

RESCISSION OF ORDER.- Such an order may be rescinded only— 

(A) upon a motion to reopen filed within 180 days after the date of the order of 

deportation if the alien demonstrates that the failure to appear was because of 

exceptional circumstances (as defined in subsection (f)(2)), or 

(B) upon a motion to reopen filed at any time if the alien demonstrates that the 

alien did not receive notice in accordance with subsection (a)(2) or the alien 

demonstrates that the alien was in Federal or State custody and did not appear 

through no fault of the alien 

The filing of the motion to reopen described in subparagraph (A) or (B) shall stay the 

deportation of the alien pending disposition of the motion. 

Section 242B(c)(3) of the Act. 

These provisions clearly show that any in absentia order made 

under sections 242(b)(1) and 242B(c)(1) of the Act may only be 

rescinded by filing a motion to reopen with the immigration judge. 

The use of the term "only" makes this the exclusive method of 

reviewing the in absentia order. It is the immigration judge with whom 

the motion must be filed and who must act on the motion. We note 

that section 242B(c)(3) specifically provides that filing of the motion 

shall stay the deportation of the alien. The alien may take an appeal to 

the Board if the motion to reopen is denied by the immigration judge. 

See 8 C.F.R. §§ 3.1(b), 3.3 (1992). In sum, the proper course for the 

respondent in the case before us is to file a motion to reopen with the 

immigration judge in order to make her contention regarding the lack 

of proper notice. 

We would emphasize that the previously followed procedures for 

administrative review still remain in effect where an in absentia order 

is made in exclusion proceedings, or in deportation proceedings 

following service or attempted service of the notice of a hearing, for 

which the alien failed to appear, made prior to June 13, 1992, the 

effective date for the procedures specified in section 242B of the Act. 

In these circumstances, the alien may still appeal the in absentia order 

to the Board, or, particularly where the cause of the alien's failure to 

appear relates to facts not before the immigration judge at the time of 

the decision, he can file a motion to reopen the proceedings with the 

immigration judge, as set forth in Matter of Haim, 19 I&N Dec. 641 

(BIA 1988). 

IT IS ORDERED that the record be returned to the Office of the 

Immigration Judge without further Board action. 

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