Interim Decision #3350

In re B-A-S-, Respondent

Decided May 20, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien failed to establish that a foot injury he suffered on the day before his

deportation hearing amounted to exceptional circumstances to excuse his failure to appear

within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. §

1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration

Court before the hearing and did not support his claim with medical records or other evidence,

such as an affidavit from his employer. 

Maziar Mafi, Esquire, Santa Ana, California, for respondent

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON,

GUENDELSBERGER, and JONES, Board Members Dissenting Opinion:

ROSENBERG, Board Member.

HURWITZ, Board Member:

In a decision dated November 22, 1996, an Immigration Judge denied

the respondent’s motion to reopen the deportation proceedings. The respondent has appealed that decision. The appeal will be dismissed.

The respondent, a native and citizen of India, entered the United States

without inspection on August 8, 1993. On June 19, 1996, the respondent was

scheduled to appear for a deportation hearing before the Immigration Judge.

At that time, he failed to appear. Consequently, the Immigration Judge conducted the hearing in absentia, as there was no reason evident for the respondent’s absence. See section 242B of the Immigration and Nationality Act, 8

U.S.C. § 1252b (1994). The Immigration Judge found the respondent

deportable as charged, concluded that he had abandoned any potential applications for relief, and ordered him deported from the United States.

On September 26, 1996, the respondent filed a motion to reopen before

the Immigration Judge. See generally Matter of Gonzalez-Lopez, 20 I&N

Dec. 644 (BIA 1993). The respondent argued that his motion should be

granted because he failed to appear for his scheduled hearing owing to an

injury that he sustained the day before the hearing. The Immigration Judge

57
Interim Decision #3350

denied the motion to reopen, and the respondent subsequently filed this

appeal.

An order of deportation issued following proceedings conducted in

absentia pursuant to section 242B(c) of the Act may be rescinded only upon

a motion to reopen which demonstrates that the alien failed to appear

because of exceptional circumstances, because he or she did not receive

proper notice of the hearing, or because he or she was in Federal or State

custody and failed to appear through no fault of his or her own. Section

242B(c)(3) of the Act. See Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995);

Matter of Gonzalez-Lopez, supra. The term “exceptional circumstances”

refers to exceptional circumstances beyond the control of the alien, such as

serious illness of the alien or death of an immediate relative, but not including less compelling circumstances. Section 242B(f)(2) of the Act. In determining whether exceptional circumstances exist to excuse an alien’s failure

to appear, the “totality of circumstances” pertaining to the alien’s case must

be considered. Matter of W-F-, 21 I&N Dec. 503, at 509 (BIA 1996).

In a sworn affidavit submitted in support of his motion to reopen, the

respondent attested that on June 18, 1996, the day before the hearing, he

accidentally tripped in the home of his friend and twisted his right foot. The

respondent related that he suffered pain and was not able to go to work.

Furthermore, he attested that because of “financial strain” he did not see a

doctor, but took Tylenol caplets to ease the pain and had his foot massaged

with oil by his friend. According to the respondent, he was unable to attend

his scheduled hearing because of the injury to his foot. In support of his

motion, the respondent also submitted a sworn affidavit from his friend,

which corroborates his account of the events.

In his decision, the Immigration Judge stated that he was “unconvinced

that respondent’s injury constitutes a serious illness” which rises to the level

of exceptional circumstances as defined in section 242B(f)(2) of the Act.

The Immigration Judge also questioned why the respondent failed to contact the Immigration Court concerning his inability to appear.

Upon review of the record, we find that the respondent has failed to

establish exceptional circumstances for his absence at the scheduled hearing. In general, a “twisted foot” would not rise to the level of a serious illness within the meaning of the Act. See section 242B(f)(2) of the Act

Assuming that a twisted foot can amount to exceptional circumstances, the

respondent has not provided sufficient evidence that his injury falls into this

category. Specifically, the evidence submitted does not indicate that the

injury to the respondent’s foot was severe enough to prevent his attendance

at the scheduled hearing. Despite the alleged seriousness of the injury, the

respondent attested that the only treatment he received involved massaging

the foot with oil and taking Tylenol caplets to alleviate his pain. 

The respondent’s motion was unsupported by any medical evidence.

Where an alien argues that his failure to appear resulted from a “serious ill58
Interim Decision #3350

ness,” we normally would expect specific, detailed medical evidence to corroborate the alien’s claim. This is particularly true where, as in the instant

case, the ailment at issue is an allegedly debilitating physical injury, the

severity of which could readily be confirmed through medical examination.

In addition, although the respondent asserted that he was confined to bed for

2 weeks and was unable to go to work, he did not provide any documentary

evidence from his employer to corroborate his claim. These considerations

lead us to conclude that the respondent has not met his burden of proving

“exceptional circumstances” for his nonappearance at the scheduled hearing.

Moreover, we note that the respondent presented conflicting statements

regarding the circumstances under which he sustained the injury at issue. In

his motion, the respondent, through counsel, asserted that he “tripped accidentally while on work on June 18, 1996.” However, in the two affidavits

offered in support of the motion, the respondent and his friend both attested that on June 18, 1996, the respondent tripped accidentally in his friend’s

home The respondent does not explain this discrepancy on appeal.

We note further that the respondent did not indicate that he made any

attempt to contact the Immigration Court, either on the day of his hearing

or immediately thereafter, to alert the court to his inability to attend or to

explain the reasons for his absence. Upon consideration, we find that the

respondent’s failure to promptly contact the Immigration Court further

undermines his claim. See De Morales v. INS, 116 F.3d 145, 149 (5th Cir.

1997) (holding that aliens did not establish “exceptional circumstances”

warranting reopening under section 242B of the Act where, after failing to

appear for scheduled deportation hearing, “they made no effort to contact

the court beyond a cursory search for the phone number”). Notifying the

Immigration Court of the respondent’s unavailability is a minimal and logical step that, if not taken, is a factor which tends to undermine a claim of

exceptional circumstances.

The respondent did not file his motion to reopen, which sets forth his

explanation for failing to appear, until more than 3 months after the June 19,

1996, in absentia hearing. We do not discount that the respondent had 180

days from the date of his missed hearing to file a motion to rescind and

reopen based on exceptional circumstances. See section 242B(c)(3)(A) of

the Act. However, his failure to promptly contact the Immigration Court,

coupled with his failure to offer reasons for not contacting the court as soon

as possible, demonstrate that the respondent did not exercise sufficient diligence in attempting to avoid an in absentia deportation order. Although diligence is not a statutory requirement, we find that this lack of diligence is a

factor that undercuts the respondent’s claim, given the entirety of the record

before us, including the lack of medical evidence to support the respondent’s claim of exceptional circumstances. See Matter of W-F-, supra.

Based on the foregoing, we find that the respondent has not established

59
Interim Decision #3350

that he failed to appear for his hearing owing to exceptional circumstances

as required by section 242B(f)(2) of the Act.1 Accordingly, the appeal will

be dismissed.

ORDER: The appeal is dismissed.

Board Members Edward R. Grant and Lori L. Scialabba did not participate

in the decision in this case.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

Once again, the Board equivocates. A majority of the Board

acknowledges that, although a “twisted foot” generally would not support a

finding of “exceptional circumstances.” given adequate evidence, it might

constitute such circumstances. The problem is, the evidence required by the

majority is not present in the record in this case, so the majority never

reaches the issue of whether this form of injury meets, or ever could meet,

the “exceptional circumstances” standard.

In today’s holding, contrary to notions of fair play acknowledged

in other of our precedents, the majority overlooks the fact that the respondent had no notice of the evidentiary requirements we shall apply to a

respondent, who was prevented from appearing before the Immigration

Court because of an injury or illness for which he could not afford medical

care. Cf., e.g., Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997) (remanding

record in which new standards implementing burden of proof pertaining to

documentation of asylum application are pronounced and existing standards are clarified); Matter of H-, 21 I&N Dec. 337 (BIA 1996) (remanding to allow the Immigration and Naturalization Service a second opportunity to meet its burden to rebut a regulatory presumption). 

Rather, the majority apparently expects that the respondent

should have anticipated, surmised, or somehow foreseen that his own

sworn statement would not be enough and that he should have consulted

a physician. In addition, in light of our decision in Matter of J-P-, 22 I&N

Dec. 33 (BIA 1998), a companion case to this precedent, he should have

known that the fact he was unable to go to work and that he stated as much

in a sworn statement would not be enough unless he also provided an

employer’s letter. 

The respondent provided a sworn affidavit in support of his motion

to reopen attesting to his injury and debilitation. He also provided a sworn

60

1

Contrary to the dissent’s view that we are adding requirements and criteria to the

statute, the Board is, in fact, applying the established statutory standard of exceptional circumstances which is defined in some detail at section 242B(f)(2) of the Act.
Interim Decision #3350

affidavit from a friend who was with him when he injured his foot and cared

for him during the 2-week recovery period. According to the majority, he

should have presented affidavits from some other third parties or medical

experts, or provided some even more probative form of evidence substantiating his injury and his inability to go to work. Matter of J-P-, supra.

Certainly, the fact that he indicated in a sworn statement that he relied on

Tylenol and oil massages from a friend, who provided a sworn affidavit of

his own confirming these circumstances, was not adequate under the nebulous evidentiary standard advanced by the majority. Cf. Matter of Grijalva,

21 I&N Dec. 27 (BIA 1995). 

The majority seems to state that if an injury is treated only with Tylenol

and massage, it cannot be serious enough to be considered “exceptional circumstances.” But an ankle or foot injury can be extremely painful, swollen,

and inflamed, making dressing, standing or walking virtually impossible. 

Once again, however, the majority emphasizes that there was no “medical evidence” to explain the respondent’s failure to attend his hearing. It

should be clear by now that no matter what the majority states directly, we

require specific, explicit, and detailed evidence from a medical doctor or a

licensed medical facility before we will accept an excuse of illness as constituting “exceptional circumstances,” or even evaluate the illness or injury

on its merits under that standard. We also now require that the illness be so

debilitating that the respondent cannot attend work, if he is employed, and,

we require that he provide evidence that he was unable to go to work

because of the injury or illness, including confirmation from his place of

employment. 

In addition, the respondent had better be certain that he provides a consistent explanation for his injury or illness, or explains any conceivable

inconsistency or “discrepancy.” See Matter of S-A-, 21 I&N Dec. 1050

(BIA 1997). Moreover, we will determine on appeal what statements or

which evidence constitute discrepancies, and we will not remand to obtain

clarification of any perceived discrepancies. Nevertheless, it should be

noted that the “discrepancy” cited by the majority in this case is not an

inconsistency in the evidence presented. The respondent, at paragraph 5 of

his affidavit, and his friend at paragraph 3 of his affidavit each state that the

respondent was injured at his friend’s home. The “discrepancy” if it is more

than a mere error, is found in the motion prepared by the respondent’s attorney, which is not evidence. Matter of Ramirez-Sanchez, 17 I&N Dec. 503

(BIA 1980). This error is not repeated in the respondent’s brief on appeal

which states consistently the respondent suffered the injury while visiting

his friend. 

Furthermore, the majority emphasizes that there is no evidence that the

respondent attempted to contact the Immigration Court to explain his

absence or his inability to attend his hearing Again, the majority imposes its

“calling” rule. As it did in Matter of J-P-, supra, the majority, citing De

61
Interim Decision #3350

Morales v. INS, 116 F.3d 145 (5th Cir. 1997), opines that because the

respondent did not contact the Immigration Court to alert the court of his

inability to attend the proceeding, the respondent’s claim of exceptional circumstances is undermined. In the absence of evidence of fabrication of an

injury or illness, however, I fail to see how failing to contact the court makes

either a heart attack, anaphylactic shock, or a foot injury more or less

“exceptional.”

As I indicated in Matter of J-P-, supra (Rosenberg, dissenting), at a

minimum, calling the Immigration Court is a new requirement not articulated in the statute or in any regulation promulgated by the Attorney

General. The reasonableness of such a requirement, assuming we were to

impose it prospectively, would depend on whether there was evidence a

respondent had a telephone, or access to one, and had the language ability

to use it. Although the majority does not appear to recognize it, there is an

obvious difference between a “calling” requirement when one is on the road

on his or her way to court and when one is housebound with a nonambulatory injury. Furthermore, as I stated in Matter of J-P-, I doubt that, as a practical matter, the Office of the Chief Immigration Judge is prepared to record

such calls with the accuracy that would be required were we to invoke such

a requirement as an essential element of veracity testing. Cf. Matter of

Villalba, 21 I&N Dec. 842 (BIA 1997) (Rosenberg, dissenting),

In any event, as I also noted in Matter of J-P-, supra (Rosenberg, dissenting), this appeal arises in the jurisdiction of the United States Court of

Appeals for the Ninth Circuit.1 In Arrieta v. INS, 117 F.3d 429, 432 (9th Cir.

1997), the court stated that a sworn statement by the respondent concerning

her failure to appear at her hearing, made when she was unaware of any

other requirements, was adequate to support her case and deserved being

remanded for consideration by the Board.

Although the failure to appear in this case does not involve a claim of

inadequate notice, but that of exceptional circumstances, each is a basis on

which an individual ordered deported in the course of an in absentia hearing may establish the propriety of rescinding the order and reconvening the

hearing according to the statute. See section 242B(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1252b(c)(1994). The essence of the ruling

of the Ninth Circuit in Arrieta v. INS, supra, is that our decision in Matter

of Grijalva, supra, requires consideration of sworn statements of the

62

1

Only recently, the Board majority suggested that a cited case that favored sustaining the

respondent’s appeal was of less force because it was decided out of circuit, and rejected the

reasoning of the Ninth Circuit Court of Appeals. Cf. Matter of A-E-M-, 21 I&N Dec. 1157

(BIA 1998), Not so, as I noted in my dissent in that case, when such citation supports the decision of the majority and, in particular, when the out-of-circuit decision supports a denial of

relief. Cf. id. (Rosenberg, dissenting) (addressing the majority’s disapproval of out-of-circuit

citations). 
Interim Decision #3350

respondent concerning his reasons for failure to appear.2 Those evidentiary

requirements suggest that a sworn statement from the respondent, as

appears to have been provided here, should support an affirmative defense

to failure to appear due to exceptional circumstances. Id. 

The point is, the respondent provided his sworn statement concerning

the disability that made him housebound and prevented him from appearing

on the appointed hearing date. At the time he did so, he was not on notice

that more than such a statement was required of him. The Ninth Circuit has

recognized that being put on notice of the requirements we are going to

impose is essential to fairness. Arrieta v. INS, supra. In addition, the majority now imposes a new “diligence” rule, making it essential that the respondent contact the Immigration Court and quickly file his motion under section 242B(c)(3), notwithstanding the 180-day statutory period provided, or

be considered a slacker, who will be treated adversely as a matter of the

“totality of the circumstances.”

In my view, the majority’s suggested requirements impose an excessively high evidentiary test to be met by a respondent who provided sworn

statements concerning his illness, explaining its severity and why he did not

seek medical treatment. Nevertheless, even assuming that according to the

majority, this standard is an acceptable one, the critical issue is how the

Board should go about announcing such evidentiary requirements in deportation and removal hearings. This question raises issues of constitutional

proportions See Blancada v. Turnage, 891 F.2d 688 (9th Cir. 1989). Under

these circumstances, at a minimum, I believe it proper that we remand the

case on appeal to allow the respondent an opportunity to comply with our

newly enunciated criteria. 

Moreover, the respondent repeatedly has sought an opportunity to present his asylum application and be heard on his claim of persecution before

the Immigration Judge. As I stated in my dissent in Matter of J-P-, supra,

even had the respondent been given the proper oral warnings concerning

forfeiture of the right to present any claims he might have for relief from

deportation as required by section 242B of the Act, that is not the end of the

matter. Although the statute precludes certain forms of discretionary relief

for 5 years when a respondent has been given proper oral and written notice

of the requirement that he appear for his hearing or for any other obligatory purpose addressed in the statute and fails to appear, these preclusions do

63

2

In that precedent, we stated unequivocally that the presumption of effective service may

be overcome by the affirmative defense of nondelivery or improper delivery by the Postal

Service. To support such an affirmative defense, the respondent must present substantial and

probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive

mail Matter of Grijalva, supra.
Interim Decision #3350

not apply across the board. Compare section 242B(e)(1) of the Act (referring to oral and written notice required under section 242B(a)(2)) with section 242B(e)(4)(B) (referring to oral and written notice of an asylum hearing). In the event of a respondent’s failure to appear, the forms of relief precluded after entry of an in absentia order cover voluntary departure, suspension of deportation, and adjustment of status, including registry. See section 242B(e)(5) of the Act. Nowhere does the statute bar consideration for

or granting of asylum, nor should it.3

Denial of reopening of proceedings before the Immigration Judge for

an asylum hearing is not one of the consequences listed in section

242B(e)(5) that is triggered by failure to appear for a deportation proceeding. Furthermore, denial of reopening to apply for asylum is not a consequence even of failure to appear for an asylum hearing addressed at section

242B(e)(4) of the Act. Precluding reopening either to schedule, or to

reschedule and reconvene an asylum hearing is not authorized by the statute.

See Iris Gomez, The Consequences of Nonappearance: Interpreting New

Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev.

75 (1993) (recognizing that Congress intended to afford asylum-seekers

enhanced protection). Consideration of the treatment of access to an asylum

hearing before an Immigration Judge in the final bill which was enacted as

section 242B of the Act reveals the special treatment Congress afforded asylum-seekers.4

The language of the sections of the statute before us is plain, and

reflects substantive distinctions between the mandate to order deportation in

64

3

A failure to appear that is excused under any of the three bases contained in section

242B(c)(3) results in rescission of the deportation order and reopening of the proceedings for

purposes of determining both deportability and eligibility for asylum or any form of discretionary relief otherwise precluded. A failure to appear for a hearing in which written notice

was properly given and not excused, but in which oral notice was not properly given or in

which the form of relief sought is not covered in section 242B(e)(5), may result in reopening

of the proceedings for purposes of entertaining any applications for relief from deportation.

See 8 C.F.R. § 3.2 (1997) (governing motions to reopen generally). At a minimum, a motion

to reopen for the purpose of applying for asylum or certain forms of discretionary relief for

deportation may be filed and granted in a case conducted in absentia, as long as the relief

sought is not precluded expressly by the terms of the statute. Such a motion shall not be granted unless such evidence “is material and could not have been presented” at the former hearing, and if it appears that the “right to apply for such relief was [not] fully explained to [the

movant] and an opportunity to apply therefore [sic] was [not] afforded,” and relief is warranted in the exercise of discretion 8 C.F.R. § 3.2(c)(1) (emphasis added). 4

The conference committee incorporated the 5-year bar to all forms of relief originally

contained in the Morrison bill, but dropped asylum from the list of relief barred. Notably, the

original GAO draft had permanently barred all forms of relief for 5 years following a nonappearance. See also H.R. 4300, 101st Cong. § 402(a)(3)(E)(iv)(1990) (original Morrison bill).

The Smith bill, H.R. 5284, 101st Cong. § 4(b) (1990), and the Brooks bill did not meaningfully affect eligible asylum-seekers H.R. Rep. No. 101-681 (1990).
Interim Decision #3350

the face of an unexcused failure to appear for a hearing in response to proper notice, and the imposition of attendant consequences which attach to certain phases of the hearing and certain forms of relief from deportation. See

Lindh v. Murphy, 521 U.S. 320 (1997) (emphasizing that language included in one section of a statute and excluded in another is to be given different meaning and effect). If a motion to rescind an in absentia finding of

deportability under section 242B(c)(3) were interpreted as preliminary to

reopening to accept an asylum application and/or hear an asylum claim,

section 242B(e)(4) of the Act would be rendered surplusage. In addition,

both Congress and this Board have recognized our domestic and international obligations not to expel and return an individual whose life or liberty

would be threatened or endangered in his or her home country. Matter of QT-M-T-, 21 I&N Dec. 639 (BIA 1996); see also id. (Rosenberg, dissenting).

Our construction of statutory language should take into account the design

of the statute as a whole and give meaning to all its sections, rendering no

section surplusage. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988);

see also Coit Independence Joint Venture v. Federal Sav. & Loan Ins.

Corp., 489 U.S. 561 (1989) (emphasizing that “whole statute” interpretation dictates that statutory sections should be read in harmony to achieve a

harmonious whole). Consequently, we cannot ignore the fact that, even after

proper oral and written warnings have been given, neither sections

242B(e)(1) nor 242B(e)(4) render a respondent ineligible for asylum protection, or preclude a respondent from seeking to reopen the proceedings

for an asylum hearing. As exclusive jurisdiction over such asylum applications remains with either the Immigration Judge or the Board of

Immigration Appeals once an Order to Show Cause and Notice of Hearing

(Form I-221) has been served and proceedings commenced, it is only the

Immigration Judge or the Board that is capable of giving meaning to the

plain language and structure of the statute indicating that the opportunity to

apply for asylum has not been foreclosed by the operation of section 242B

of the Act. See 8 C.F.R. §§ 3.1(b), 3.2, 3.14(b), 208.2(b) (1997).

The record reflects that the respondent is an asylum-seeker who submitted an application to the Immigration and Naturalization Service that

was referred to the Immigration Court.5 Under these circumstances, I can65

5

Lest there be any question, the issue of the respondent’s being an asylum applicant has

been raised before the Board, and, on appeal, a court of appeals should have jurisdiction to

review such legal claims. See Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997) (finding jurisdiction in a claim raised under section 242B where, notwithstanding the fact that the

Board did not address the issue of lack of knowledge of the requirement in its decision, the

change of address requirement was raised, and the Service neither challenged nor contradicted the evidence); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994) (holding that the

exhaustion requirement will not apply where there is a constitutional challenge to the

Immigration and Naturalization Act or procedures of the Immigration and Naturalization
Interim Decision #3350

not agree that the respondent should be prevented from presenting his asylum claim before the Immigration Judge See section 242B(e)(4)(B) of the

Act.6 Any attempt to preclude him from such an opportunity raises questions concerning violation of the statute, as well as the possible violation of

our international obligations not to return individuals to their country of origin when they have contended that they have suffered or would face imminent persecution there. See Matter of J-P-, supra, at 47 (Rosenberg, dissenting).

In conclusion, I believe that the requirements we impose interpreting

and implementing the statute should be reasonable, and that we should

impose these requirements only after giving fair notice of what we require.

Fair consideration should be given to motions submitted according to existing standards, and pending cases should not be rejected on the basis of

newly articulated rules. I believe, also, that we must give all of the statutory provisions meaning. 

The provisions authorizing in absentia hearings and imposing consequences on respondents who fail to appear certainly reflect Congress’ desire

for a timely and efficient deportation hearing process. Nevertheless, as the

Supreme Court has noted, “[A] myopic insistence upon expeditiousness in

the face of a justifiable request for delay can render the right to defend with

counsel an empty formality.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

The same can be said about the right to a hearing before an Immigration

Judge on the allegations and charges in the Order to Show Cause, and the

opportunity to apply for asylum or other relief from deportation For the reasons stated in Matter of J-P-, supra (Rosenberg, dissenting). I would

remand this case. 

66

Service); Castillo-Villagra v. INS, 972 F.2d 1017, 1024 (9th Cir. 1992) (finding that the petitioners did not bypass the Service, the Service bypassed them and stating that “exhaustion of

administrative remedies by a motion to reopen may be required as a matter of prudence in

order to develop a proper record, prevent deliberate bypass of the administrative scheme, and

allow the agency to correct its own mistakes”); Montes v. Thornburgh, 919 F.2d 531, 537 (9th

Cir. 1990). 6

I note in this regard that, in fact, the 180-day from order of deportation time limitation

which applies to motions to rescind for exceptional circumstances is conspicuously absent

from the statutory language in section 242B(e)(4) of the Act, which talks of exceptional circumstances with no mention of a time limit.