L-V-K

Interim Decision #3409

In re L-V-K-, Respondent

Decided August 10, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An Immigration Judge’s order of deportation becomes a final administrative deci-

sion upon an alien’s waiver of the right to appeal.

(2) Where an alien files a motion to remand during the pendency of an appeal from

an Immigration Judge’s denial of a motion to reopen a final administrative decision

and more than 90 days have passed since entry of that final administrative decision,

the Board of Immigration Appeals lacks jurisdiction to adjudicate the motion because

it is time-barred by 8 C.F.R. § 3.2(c)(2) (1999).

Peter Popov, Esquire, Beverly Hills, California, for respondent

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and SCIALAB-

BA, Board Members. Dissenting Opinion: VILLAGELIU, Board Member,

joined by SCHMIDT, Chairman; ROSENBERG, GUENDELSBERGER, and

MOSCATO, Board Members.

MATHON, Board Member:

The respondent has filed a motion requesting that we reconsider our

January 16, 1998, decision in which we denied her motion to remand the

record of proceedings to the Immigration Judge to allow her to seek adjust-

ment of status under section 245(a) of the Immigration and Nationality Act,

8 U.S.C. § 1255(a) (1994). The motion to reconsider will be granted. Upon

reconsideration, the motion to remand will be dismissed for lack of juris-

diction.

I. ISSUE

The issue now before us is whether the Board has jurisdiction to enter-

tain a motion to remand, filed more than 90 days after the entry of a final

administrative order, when that motion is filed while an appeal from an

Immigration Judge’s denial of a previous motion to reopen is pending.

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II. PROCEDURAL HISTORY

The respondent is a native and citizen of Bulgaria who entered the

United States on July 22, 1991, as a nonimmigrant visitor. On December

16, 1991, she applied for asylum under section 208(a) of the Act, 8 U.S.C.

§ 1158(a) (1988), and withholding of deportation under section 243(h)(1)

of the Act, 8 U.S.C. § 1253(h)(1) (Supp. II 1990). On March 1, 1994, the

Immigration and Naturalization Service denied that application, and the

respondent was issued an Order to Show Cause and Notice of Hearing

(Form I-221) on September 27, 1995.

At her deportation hearing on March 22, 1996, the respondent with-

drew her application for asylum and withholding of deportation and waived

appeal. She was granted voluntary departure until January 23, 1997, with an

alternate order of deportation to Bulgaria.

On February 27, 1997, nearly a year after the Immigration Judge’s deci-

sion became final, the respondent filed with the Immigration Judge a

motion to reopen and stay deportation based on changed circumstances in

Bulgaria. 8 C.F.R. § 3.2(c)(3)(ii) (1997). On April 11, 1997, the Immigration

Judge denied the respondent’s motion to reopen, finding that she failed to

establish prima facie eligibility for asylum and withholding of deportation.

On May 9, 1997, the respondent filed a timely appeal from the Immigration

Judge’s decision denying her motion to reopen, asserting that the

Immigration Judge incorrectly gave an expansive reading to the phrase

“changed circumstances.”

On November 3, 1997, while her appeal to the Board was still pending,

the respondent filed a motion to remand for adjustment of status. She sub-

mitted evidence of an approved employment-based visa petition with a cur-

rent priority date, but indicated that she would submit an Application to

Register Permanent Residence or Adjust Status (Form I-485) to the

Immigration Judge after the remand was granted.

On January 16, 1998, we dismissed the respondent’s appeal, finding

that her motion to reopen to request asylum and withholding of deportation

was properly denied by the Immigration Judge. We also denied the respon-

dent’s motion to remand because she had failed to submit the formal adjust-

ment application as required by regulation. 8 C.F.R. § 3.2(c)(1).

On February 17, 1998, the respondent filed this timely motion to recon-

sider the Board’s denial of her motion to remand. She also requested a stay

of deportation, which we need not address in light of our decision on the

motion to remand. In support of her motion, she submitted a completed

application for adjustment of status.

III. DEFINITION OF FINAL ADMINISTRATIVE DECISION

The question of when an order of deportation becomes “final” has been

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settled by the Board in the interest of promoting finality in deportation pro-

ceedings. In Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff’d, 681 F.2d

107 (2d Cir. 1982), we determined that an administrative order is final when

the Board renders its decision in a case on appeal or certification or, where

no appeal is taken, when the time allotted for appeal has expired or the right

to appeal is waived. Id. at 105; see also 8 C.F.R. § 3.39 (1999). In the case

before us, the Immigration Judge’s decision became final at the point in the

respondent’s deportation hearing when she waived her right to appeal. See

Matter of Shih, 20 I&N Dec. 697, 699 (BIA 1993). Thus, the final admin-

istrative decision was reached on March 22, 1996, when the Immigration

Judge granted the respondent voluntary departure with an alternate order of

deportation and the respondent waived appeal.

IV. REGULATORY TIME LIMITS FOR MOTIONS TO REOPEN

Pursuant to 8 C.F.R. § 3.2(c)(2) (1999), only one motion to reopen is

permitted. In addition, such motion must be filed with the Immigration

Judge or the Board no 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. Id. An

exception to the time and numerical limitations exists for motions to reopen

to apply or reapply for asylum or withholding of deportation based on

changed circumstances arising in the country of nationality, if such evi-

dence is material and was not available and could not have been discovered

or presented at the former hearing. 8 C.F.R. § 3.2(c)(3)(ii). The motion

must state the new facts to be proved and must be supported by evidentiary

material. 8 C.F.R. § 3.2(c)(1).

A motion to reopen that is filed during the pendency of an appeal may

be styled as a motion to remand. 8 C.F.R. § 3.2(c)(4). In substance, how-

ever, it remains a motion to reopen.

As the final administrative decision in the instant case was rendered on

March 22, 1996, the respondent’s motion to reopen was due on or before

September 30, 1996. The respondent did not file her motion to reopen until

February 27, 1997. The respondent’s motion to reopen before the

Immigration Judge was not time-barred, however, because it was based on

alleged changed circumstances in Bulgaria and consequently fit within the

regulatory exception. 8 C.F.R. § 3.2(c)(3)(ii). The Immigration Judge nev-

ertheless found that the respondent had failed to establish changed circum-

stances and denied her motion to reopen.

In our January 16, 1998, decision, we affirmed the Immigration Judge’s

denial of the motion to reopen based on changed circumstances. We agreed

with the Immigration Judge that the respondent had not demonstrated

changed circumstances. In her subsequent motion to reconsider, the respon-

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dent does not challenge our decision to dismiss her appeal of the denial of

her motion to reopen. She focuses instead on our refusal to remand her case

to allow her to apply for adjustment of status.

V. MOTION TO REMAND

On November 3, 1997, while the respondent’s appeal was pending

before the Board, the respondent filed a motion to remand for consideration

of an application for adjustment of status. We denied the motion based on

the respondent’s failure to comply with the regulatory requirement that an

application for relief must be submitted with the motion. 8 C.F.R. §

3.2(c)(1). Upon reconsideration, we find that we did not have jurisdiction

to consider the motion to remand, because this motion was, in substance, a

motion to reopen that had been filed more than 90 days after the entry of a

final administrative order.

As indicated earlier, a motion to reopen or to reconsider a decision

rendered by an Immigration Judge that is filed while an appeal is pending

before the Board may be deemed a motion to remand for further proceed-

ings before the Immigration Judge from whose decision the appeal was

taken. 8 C.F.R. §§ 3.2(b)(1), (c)(4). However, while we have the discre-

tion to entertain such a motion, our jurisdiction to consider the motion is

contingent upon the procedural posture of the underlying merits case. 8

C.F.R. § 3.2.

When the respondent filed her motion to remand to apply for adjust-

ment of status, she was still under a final administrative order of deportation

because her motion to reopen had never been granted. The appeal that was

pending before the Board when she filed her motion to remand was not an

appeal of an underlying merits decision, but, rather, an appeal of a denial of

that earlier motion to reopen. This differs substantially from the situation

where a motion to remand is filed while a direct appeal from an Immigration

Judge’s initial order on the merits case is still pending before us. In the latter

case, there is no final administrative order until the Board renders its decision

on the appeal. By contrast, where an appeal is pending from the denial of a

motion to reopen by an Immigration Judge at the time a motion to remand is

filed, an underlying final administrative order still exists.

In the case now before us, the date of the final administrative decision

has at no time changed, as the proceedings have not been reopened.

Accordingly, pursuant to the respondent’s waiver of appeal at the merits

hearing on March 22, 1996, she remains subject to the final administrative

order of deportation that the Immigration Judge rendered on that date.

Unless and until such time as the proceedings are reopened, the Board has no

jurisdiction to entertain a motion to remand, which is in substance a motion

to reopen, because the 90-day limit for filing a motion to reopen has expired.

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Consequently, the respondent’s motion to remand must be denied for

lack of jurisdiction because the motion to remand was time-barred at the

outset. Although the current motion to reconsider corrects the defect we

originally observed in the remand motion, namely, the omission of a formal

adjustment of status application, it cannot overcome the respondent’s fail-

ure to file that motion in a timely manner. Accordingly, we find that we lack

jurisdiction over the motion to remand, and we hereby modify our January

16, 1998, decision to so reflect.

VI. SUA SPONTE REOPENING

We note that the Board has discretionary authority to reopen or recon-

sider cases on its own motion. 8 C.F.R. § 3.2(a). We addressed the limita-

tions on this discretion in our recent decision, Matter of J-J-, 21 I&N Dec.

976 (BIA 1997), where we emphasized that the power to reopen on our own

motion is not meant to be used as a general cure for filing defects or to oth-

erwise circumvent the regulations when enforcing the regulations could

result in hardship. The purpose of the 1996 motions and appeals regulations

was to bring finality to immigration proceedings, not merely to prevent the

filing of dilatory or frivolous motions. Id. Only in exceptional situations

will the Board reopen proceedings sua sponte. The respondent in the case

before us does not present such a situation.

VII. CONCLUSION

The respondent’s motion to reopen was denied by the Immigration

Judge, and the Board affirmed that decision. Consequently, the respondent

remains subject to the final administrative order issued by the Immigration

Judge on March 22, 1996. The Board therefore lacked jurisdiction to con-

sider her motion to remand for adjustment of status, as her deportation pro-

ceedings were never reopened and the motion to remand was not timely

filed following the Immigration Judge’s final administrative order.

Accordingly, upon reconsideration, we will deny the motion to remand

for lack of jurisdiction.

ORDER: The motion to reconsider is granted.

FURTHER ORDER: Upon reconsideration, our decision of

January 16, 1998, is modified to reflect that the respondent’s motion to

remand is denied for lack of jurisdiction.

Board Member Neil P. Miller did not participate in the decision in this case.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member, in which

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Paul W. Schmidt, Chairman; Lory D. Rosenberg, John Guendelsberger, and

Anthony C. Moscato, Board Members, joined

I respectfully dissent from the majority’s denial of the respondent’s

motion to remand in order to have her application for adjustment of status

considered. The majority rules that it does not have jurisdiction. It does. The

majority states that its ruling promotes the finality of immigration proceed-

ings in the respondent’s case. It does not. Finality is not synonymous with

deportability.

The respondent is the beneficiary of an approved visa petition. Her case

is presently before us on a timely motion to reconsider an adverse decision

in her case. While her motion was pending, her priority date became cur-

rent, providing her with visa availability. Consequently, rather than further

tax our scarce administrative resources reviewing her pending motion to

reconsider, the respondent, instead, requests that the case be remanded to

consider her application for adjustment of status for which she appears

prima facie eligible.

The regulation at 8 C.F.R. § 3.1(d)(2) (1999) specifies that we can

remand any case before us for further proceedings without reaching a deter-

mination. Once a case is remanded, such a remand, unless specifically lim-

ited, is for any appropriate purpose. See Matter of Patel, 16 I&N Dec. 600

(BIA 1978). Moreover, 8 C.F.R. § 3.1(d)(1) specifically provides the Board

with the Attorney General’s discretionary authority as appropriate and nec-

essary for the resolution of the case.

Congressional intent is always primarily derived from the language of

the statute enacted by Congress. Section 203(b) of the Act, 8 U.S.C. §

1153(b) (1994), provides preference immigration status to the respondent

under the Act and thus indicates a congressional intent to allow the

respondent to immigrate to the United States. Moreover, Congress has

also enacted grandfather provisions for adjustment of status applicants

seeking the benefits of section 245(i) of the Act, 8 U.S.C. § 1255(i) (1994

& Supp. II 1996), for petitions submitted before January 14, 1997. This

recent congressional enactment gives further support for interpreting our

regulations consistent with the congressional directive to provide this

respondent with an adjustment of status forum to have her immigration

application considered.

The Attorney General’s intent is similarly derived from the regula-

tions she enacted. The regulations at 8 C.F.R. part 245 specifically pre-

scribe the adjustment of status process as the sole procedure for applying

to immigrate while in this country; and 8 C.F.R. § 245.2(a)(2) (1999)

specifies that deportation proceedings are the only process prescribed for

considering the respondent’s application. Consequently, when the major-

ity strains to interpret the regulation to deprive the respondent of a forum

for her adjustment application, it does so in contravention of the congres-

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sional intent that applicants with a priority date before January 14, 1997,

should be allowed to immigrate through the adjustment of status process

and the Attorney General’s directive to prescribe such a process for aliens

already in proceedings.

Denying the respondent’s motion does not promote finality in her

immigration proceedings. As discussed above, she is the beneficiary of an

approved visa petition. If deported, she will have to pursue her visa abroad,

contrary to congressional intent, and she will also require approval of

waivers of inadmissibility solely as a result of the majority’s refusal to pro-

vide the prescribed forum for her application. See section 212(a)(9) of the

Act, 8 U.S.C. § 1182(a)(9) (Supp. II 1996). Promoting deportability is not

promoting finality in immigration determinations when the eventual result

prescribed by Congress for this respondent, who is presently in the United

states as an asylum applicant, is her admission into the United States as a

qualified employment-based preference immigrant. Remanding her case to

allow her application to be considered is the appropriate and necessary

action required to promote finality in her immigration proceedings.

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