OKOH

Interim Decision #3227

MATTER OF OKOH

In Exclusion Proceedings

A-28333422

Decided by Board August 29, 1994

The Board of Immigration Appeals has no jurisdiction over an alien's motion to

reconsider its prior decision in exclusion proceedings after the order is executed and the

alien has-been excluded and deported from the United States. Matter of Keyte, 20 I&N

Dec. 158 (BIA 1990), distinguished.

EXCLUDABLE: Act of 1952—Sec. 212(a)(2)(A) (i)(11) [8 U.S.C. § 1182(a)(2)(A)

(i)(11))—Controlled substance violation

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:

Alton G. Rose, Esquire Craig A. Harlow

168-43 Hillside Avenue General Attorney

Jamaica, New York 11432

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,

Alternate Board Member

In a decision dated November 19, 1992, an immigration judge

noted that the applicant had previously been found excludable under

section 212(a)(2)(A)(i)(E) of the Immigration and Nationality Act, 8

U.S.C. § 1182(a)(2)(A)(iXII) (Supp. IV 1992); found her statutorily

ineligible for relief under section 212(c) of the Act; and ordered her

excluded and deported from the United States. The Board affirmed

the immigration judge's decision in an order dated March 22, 1993.

Through counsel, the applicant filed a request for a stay of deportation

and a motion for reconsideration in November 1993. The Board

denied the stay request in an order dated December 2, 1993. The

applicant was excluded and deported from the United States on

December 14, 1993. The Immigration and Naturalization Service

opposes the motion to reconsider. 1

We find that we lack jurisdiction to act on the motion. See generally

8 C.F.R. § 3.1(b) (1994); Matter of G- y B-, 6 I&N Dec. 159 (BIA

1 The Service incorrectly characterizes the motion as a motion to reopen. See Matter

of Cerna, 20 I&N Dec. 399, 402-3 (BIA 1991), of d, 979 F.2d 212 (11th Cir. 1992).

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Interim Decision #3227

1954). In the instant case, the Board issued an order dismissing the

applicant's appeal on March 22, 1993. The filing of a motion to reopen

or a motion to reconsider does not stay the execution of any decision

in a case or extend a previously set departure date. See 8 C.F.R.

§ 3.8(a) (1994). The applicant's departure pursuant to the Board's

March 22, 1993, order of exclusion and deportation executed that

order and brought the exclusion proceedings to finality. We note that

under section. 106(c) of the Act, 8 U.S.C. § 1105a(c) (1988), an

exclusion or deportation order "shall not be reviewed by any court if

the alien has not exhausted the administrative remedies available to

him as of right under the immigration laws and regulations or if he has

departed from the United States after the issuance of the order." See

Castaneda v. INS, 23 F.3d 1576, 1581 (10th Cir. 1994); Roldan v.

Racette, 984 F.2d 85, 89-90 (2d Cir. 1993); Joehar v. INS, 957 F.2d

887, 889-90 (D.C. Cir. 1992); Saadi v. INS, 912 F.2d 428 (10th Cir.

1990); Quezada v. INS, 898 F.2d 474, 476 77 (5th Cir. 1990); McGuire

-

v. INS, 804 F. Supp. 1229, 1231-32 (N.D. Cal. 1992); cf. Marrero v.

INS, 990 F.2d 772 (3d Cir. 1993); Juarez v. INS, 732 F.211 58, 59 60-

(6th Cir. 1984); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977)

(interpreting "departed" in the context of the statute to mean a

"legally executed" departure).

In Matter of Keyte, 20 I&N Dec. 158 (BIA 1990), we held that the

departure from the United States by an applicant for admission in

exclusion proceedings after the taking of an appeal from the immigra-

tion judge's order denying admission does not in and of itself

constitute withdrawal of the appeal. The instant case is distinguishable

from Matter of Keyte. In Keyte, the aliens filed an appeal from an

immigration judge's decision ordering them excluded and deported

from the United States. While their appeal was pending, the aliens

departed from the United States in September 1986. When they

returned in April 1987 and sought admission as nonimmigrant

visitors, they were again placed in exclusion proceedings. They

thereupon departed from the United States in August 1987. As we

noted in Keyte, "[t]he departure pending appeal of an alien who has

been stopped at the border and ordered excluded is not necessarily

incompatible with a design to prosecute the appeal to a conclusion."

Id. at 2.

In Matter of Keyte, supra, the aliens' direct appeal from an

immigration judge's order was pending when they departed. In

contrast, the applicant's direct appeal in the instant case was adjudi-

cated by the Board, which affirmed the immigration judge's decision

ordering him excluded and deported from the United States; the

applicant was excluded and deported pursuant to that order. On these

facts, the applicant's motion for reconsideration became moot when

Interim Decision #3227

the Board's order was executed and she was excluded and deported.

The holding in Matter of Keyte, supra, is limited to cases involving the

pendency of a direct appeal.

Miens in exclusion proceedings have fewer substantive rights than

aliens in deportation proceedings. See Landon v. Plasencia, 459 T.J.S.

21 (1982). Any departure from the United States of an alien who is the

subject of deportation proceedings, occurring after the making of a

motion to reconsider or a motion to reopen, constitutes a withdrawal

of such motion. 8 C.F.R. § 3.2 (1994). In our view, it would be

anomalous to find that an alien in exclusion proceedings could pursue

a motion to reopen or reconsider following the alien's exclusion and

deportation from the United States. In this regard, we note that the

absence of a reference to exclusion proceedings in 8 C.F.R. § 3.2

(1994) is not surprising or determinative, as there similarly is no

express reference to motions to reopen or reconsider in exclusion

proceedings in 8 C.F.R. § 3.8 (1994) or in the principal regulations

regarding exclusion proceedings. See 8 C.F.R. §§ 236.1-236.9 (1994).

Accordingly, the following order will be entered.

ORDER: The record is returned to the Office of the Immigra-

tion Judge without further Board action.

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