CRAMMOND

Cite as 23 I&N Dec. 179 (BIA 2001) Interim Decision #3457

In re Robin Juraine CRAMMOND, Respondent

File A41 925 300 - San Pedro

Decided October 16, 2001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The Board of Immigration Appeals lacks jurisdiction over a motion to reopen where the

motion is withdrawn, within the meaning of 8 C.F.R. § 3.2(d) (2001), by the departure of

the alien from the United States prior to a ruling on the motion.

(2) When the Board is presented with evidence that it has granted a motion to reopen after

the alien’s departure from the United States, it is appropriate to reconsider and vacate the

prior order on jurisdictional grounds. Matter of Crammond, 23 I&N Dec. 9 (BIA 2001),

vacated.

FOR RESPONDENT: Laurack D. Bray, Esquire, Ventura, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Lori Bass, Assistant

District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;

SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,

GUENDELSBERGER, MATHON, ROSENBERG, JONES, GRANT,

MOSCATO, MILLER, BRENNAN, ESPENOZA, OSUNA, OHLSON, HESS,

and PAULEY, Board Members.

GUENDELSBERGER, Board Member:

This matter was last before us on March 22, 2001, at which time we granted

the respondent’s motion to reopen and remanded the record to the Immigration

Court for further proceedings. See Matter of Crammond, 23 I&N Dec. 9 (BIA

2001). The Immigration and Naturalization Service has filed a motion to

reconsider our holding in Matter of Crammond, supra, that a conviction for

“murder, rape, or sexual abuse of a minor” must be for a felony offense in order

to be considered an aggravated felony conviction under section 101(a)(43)(A)

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V

1999).

Before reaching the substantive arguments raised in the motion to reconsider,

we address a preliminary jurisdictional issue raised in the Service’s motion. The

Service notes that it recently discovered that the respondent in this case

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Cite as 23 I&N Dec. 179 (BIA 2001) Interim Decision #3457

departed from the United States and returned to Belize on March 13, 2000.

Attached to the Service’s motion is a “Notification of Departure-Bond Case”

from the United States Embassy, Consular Service, in Belize, indicating that an

alien with the same name and alien number as the respondent arrived at the

Belize International Airport on March 13, 2000, on a flight from Los Angeles,

California.

Our March 22, 2001, decision in Matter of Crammond, supra, granted a

motion to reopen that had been filed by the respondent on February 1, 2000.

The Service argues that the respondent’s motion to reopen should be deemed to

have been abandoned as a result of his March 13, 2000, departure from the

United States, and that we should vacate our decision for lack of jurisdiction.

The respondent’s memorandum in opposition to the Service’s motion to

reconsider does not address the issue of his departure.

The pertinent regulation provides that “[a]ny departure from the United States,

including the deportation or removal of a person who is the subject of exclusion,

deportation, or removal proceedings, occurring after the filing of a motion to

reopen or a motion to reconsider, shall constitute a withdrawal of such motion.”

8 C.F.R. § 3.2(d) (2001). The evidence now submitted by the Service indicates

that the respondent departed from the United States while his motion to reopen

was pending before the Board. Such a departure constitutes a withdrawal of the

motion as of the date of departure. Thus, because our decision in Matter of

Crammond, supra, was rendered after the respondent’s departure, we

effectively lacked jurisdiction to adjudicate his motion to reopen. Although we

were unaware of this fact at the time we rendered our decision, we have now

been informed of our lack of jurisdiction. Consequently, we agree that our

decision must be vacated.

Accordingly, we will grant the Service’s motion to reconsider based on our

lack of jurisdiction and will vacate our March 22, 2001, decision in Matter of

Crammond, supra. Moreover, the respondent’s motion to reopen must be

considered withdrawn as of the date of his departure, March 13, 2000. Our

previous order in this case, dated November 9, 1999, will therefore be

considered the final administrative decision as if no motion to reopen had been

submitted. Given this disposition, we do not address the substantive issues

raised in the Service’s motion to reconsider.

ORDER: The motion to reconsider submitted by the Immigration and

Naturalization Service is granted with respect to the issue of jurisdiction.

FURTHER ORDER: The March 22, 2001, decision of the Board in

Matter of Crammond, 23 I&N Dec. 9 (BIA 2001), is vacated.

FURTHER ORDER: The motion to reopen filed by the respondent on

February 1, 2000, is deemed to have been withdrawn on March 13, 2000, and the

record of proceedings is returned to the Immigration Court without further

action, as there is nothing pending before the Board.

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