Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings

SUMMARY: This proposed rule amends Executive Office for Immigration

Review regulations concerning motion and appeal practice in immigration

proceedings. The rule is being promulgated to implement the directives

of section 545 of the Immigration Act of 1990 (``IMMACT''). Both time

and number limitations on motions to reopen proceedings or to

reconsider decisions have been proposed in accordance with section

545(d) of IMMACT, and will reflect the intent of Congress to streamline

the deportation proceedings of aliens in the United States.

DATES: Written comments must be received on or before August 8, 1994.

ADDRESSES: Please submit written comments to Gerald S. Hurwitz, Counsel

to the Director, Executive Office for Immigration Review, suite 2400,

5107 Leesburg Pike, Falls Church, Virginia 22041.

FOR FURTHER INFORMATION CONTACT:

Gerald S. Hurwitz, Counsel to the Director, Executive Office for

Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church,

Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: Section 545 of the Immigration Act of 1990,

Public Law 101-649 (8 U.S.C. 1252b), modifies both substantive and

procedural aspects of motion and appeal practice in immigration

proceedings. Under the proposed rule, a party may file only one motion

to reopen proceedings, and one motion to reconsider a decision of an

Immigration Judge, the Board of Immigration Appeals (``Board''), or a

Service Officer. A motion to reopen proceedings must be filed within 20

days of the final administrative decision or within 20 days of the

effective date of the final rule, whichever is later. A motion to

reconsider a decision must also be filed within 20 days of the decision

or within 20 days of the effective date of the final rule, whichever is

later. Under the proposed rule, provisions concerning motions to reopen

or reconsider have been condensed into one section under 8 CFR 3.2. A

new Sec. 3.8 will concern fees.

The Board has previously addressed issues relating to the effect of

an alien's loss of lawful permanent resident status on a motion to

reopen proceedings to apply for or to further pursue an application for

relief under section 212(c) of the Act. See e.g., Matter of Cerna,

Interim Decision 3161 (BIA 1991) and Matter of Lok, 18 I&N Dec. 101

(BIA 1981), aff'd on other grounds, Lok v. INS, 681 F.2d 107 (2d Cir.

1982). These decisions have recently been the subject of litigation and

conflicting court rulings. Subject to all of the other requirements

pertaining to motions to reopen, the proposed rule will permit

reopening of proceedings to consider or further consider an application

for relief under section 212(c) of the Act if the alien demonstrates

that he or she was statutorily eligible for such relief prior to the

entry of the administratively final order of deportation or exclusion.

There are several exceptions to these general rules, as required by

section 242B(c)(3) of the Act, 8 U.S.C. 1252b(c)(3). An alien who is

ordered deported in absentia who can demonstrate that his or her

failure to appear was due to exceptional circumstances may file a

motion to reopen the proceedings within 180 days of the final order. An

alien who is ordered deported in absentia without receiving notice of

the proceedings, if notice was required, or who was in federal or state

custody at the time of the proceedings and could not appear, may file a

motion to reopen without regard to the above time limitations. The

filing of a motion to reopen proceedings or a motion to reconsider a

decision will not serve to stay the execution of any decision, unless

the motion is filed by an alien who was ordered deported in absentia,

pursuant to 8 CFR 3.23(b)(5). As in the past, an alien who files an

asylum claim that arises after the initiation of deportation

proceedings against the alien where the claim is based upon an alleged

change in circumstances in the country of the alien's nationality may

move to reopen the proceedings at any time.

When a party appeals a decision, the notice of appeal must

meaningfully identify the reasons for the appeal in order to avoid

summary dismissal. The notice must indicate whether the party will be

filing a brief and whether the party desires oral argument before the

Board. An appellant will be provided 30 days in which to file a brief

unless the alien concerned is detained, in which case the appellant

will be given 14 days to file a brief. The Immigration Judge or Service

Officer may specify a shorter time in which to file a brief, but only

the Board may extend the time for filing, and then only up to a total

of 90 days for good cause shown. An appeal may be withdrawn by either

party. In the event the alien concerned leaves the United States after

taking an appeal but prior to a decision, the appeal will be deemed

withdrawn. An appeal will not be permitted when an order of deportation

or exclusion has been entered in absentia.

The rule more clearly outlines when the notice of appeal should be

filed with the Immigration and Naturalization Service and when the

notice of appeal should be filed with the Office of the Immigration

Judge. The proposed rule also replaces the reference to discontinued

Form I-290A with reference to the currently used Form EOIR-26 for

filing an appeal from a decision of an Immigration Judge and Form EOIR-

29 for filing an appeal from a decision of a district director. The

proposed change will eliminate the requirement that the notice of

appeal be filed in triplicate. Parties will still be required to file

the original notice of appeal with the office having administrative

control over the record of proceeding and serve a copy of the notice of

appeal on the opposing party. The proposed rule will clarify that a

notice of appeal will not be considered filed until the notice is

actually received in the office having administrative control over the

record of proceeding.

The rule clarifies that the period for filing a Notice of Appeal to

the Board of Immigration Appeals of Decision of Immigration Judge (Form

EOIR-26) is extended from 10 to 13 days where the decision of the

Immigration Judge is served by mail. The proposed change will clearly

define the event that commences the running of the period for filing an

appeal and will reiterate which form should be used to file an appeal

and where to file the form. These proposed changes will help unify

practice and procedure throughout the country and will restrict the

ability of parties to reopen or continue proceedings indefinitely.

These goals are consistent with the directives of section 545 of IMMACT

(8 U.S.C. 1252b).

This rule is promulgated as a proposed regulation to allow for

comments prior to implementation.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule will not have a significant adverse economic impact on a

substantial number of small entities. This rule was not reviewed by the

Office of Management and Budget pursuant to Executive Order No. 12866.

In addition, this rule does not have Federalism implications warranting

the preparation of a Federalism Assessment in accordance with Executive

Order No. 12612.

List of Subjects

8 CFR Part 1

Administrative practice and procedure, Aliens.

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Freedom of information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 242

Administrative practice and procedure, Aliens.

Accordingly, title 8, chapter I of the Code of Federal Regulations

is proposed to be amended as follows:

PART 1--DEFINITIONS

1. The authority citation for part 1 continues to read as follows:

Authority: 66 Stat. 173; 8 U.S.C. 1101; 28 U.S.C. 509, 510; 5

U.S.C. 301.

2. Section 1.1 is amended by adding a new paragraph (p) to read as

follows:

Sec. 1.1 Definitions.

* * * * *

(p) The term lawfully admitted for permanent residence means the

status of having been lawfully accorded the privilege of residing

permanently in the United States as an immigrant in accordance with the

immigration laws, such status not having changed. Such status

terminates upon entry of a final administrative order of exclusion or

deportation.

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

3. The authority citation for part 3 is revised to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362;

28 U.S.C. 509, 510, 1746; Sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR,

1949-1953 Comp., p. 1002.

4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),

and (c) to read as follows:

Sec. 3.1 General Authorities.

* * * * *

(b) * * *

(1) Decisions of Immigration Judges in exclusion cases, as provided

in part 236 of this chapter, except that no appeal shall lie from an

order of exclusion entered in absentia.

(2) Decisions of Immigration Judges in deportation cases, as

provided in part 242 of this chapter, except that no appeal shall lie

from an order of deportation entered in absentia, nor shall an appeal

lie from an order of an Immigration Judge under Sec. 244.1 of this

chapter granting voluntary departure within a period of at least 30

days, if the sole ground of appeal is that a greater period of

departure time should have been fixed.

* * * * *

(c) Jurisdiction by certification. The Commissioner, or any other

duly authorized officer of the Service, any Immigration Judge, or the

Board may in any case arising under paragraph (b) of this section

require certification of such case to the Board. The Board in its

discretion may review any such case by certification without regard to

the provisions of Sec. 3.7 of this chapter if it determines that the

parties have already been given a fair opportunity to make

representations before the Board regarding the case, including the

opportunity to request oral regiment and to submit a brief.

* * * * *

5. Section 3.2 is revised to read as follows:

Sec. 3.2 Reopening or reconsideration.

(a) General. The Board may at any time reopen or reconsider on its

own motion any case in which it has rendered a decision. A request to

reopen or reconsider any case in which a decision has been made by the

Board, which request is made by the Commissioner or any other duly

authorized officer of the Service, or by the party affected by the

decision, must be in the form of a written motion to the Board. The

decision to grant or deny a motion to reopen or reconsider is within

the discretion of the Board, subject to the restrictions of this

section. The Board has discretion to deny a motion to reopen even if

the party moving has made out a prima facie case for relief.

(b) Motion to reconsider. A motion to reconsider a decision must be

filed within 20 days after the mailing of the decision or the stating

of the oral decision for which reconsideration is being sought, or

within 20 days of the effective date of the final rule, whichever is

later. When service of the decision is made by mail, 3 days shall be

added to the period prescribed for filing of the motion. A party may

file only one motion to reconsider any given decision and may not seek

reconsideration of a decision denying a previous motion to reconsider.

A motion to reconsider shall state the reasons for the motion and shall

be supported by pertinent authority. A motion to reconsider a decision

rendered by an Immigration Judge or Service Officer that is pending

when an appeal is filed with the Board, or that is filed subsequent to

the filing with the Board of an appeal from the decision sought to be

reconsidered, shall be deemed a motion to remand the decision for

further proceedings before the Immigration Judge or the Service Officer

from whose decision the appeal was taken. Such motion, which shall be

consolidated with and considered by the Board in connection with any

appeal to the Board, is subject to the time and numerical limitations

of this paragraph.

(c) Motion to reopen. (1) A motion to reopen proceedings shall

state the new facts that will be proven at a hearing to be held if the

motion is granted, and shall be supported by affidavits or other

evidentiary material. A motion to reopen proceedings for the purpose of

submitting an application for relief must be accompanied by the

appropriate application for relief and all supporting documentation. A

motion to reopen proceedings shall not be granted unless it appears to

the Board that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former

hearing; nor shall any motion to reopen for the purpose of affording

the alien an opportunity to apply for any form of discretionary relief

be granted if it appears that the alien's right to apply for such

relief was fully explained to him or her and an opportunity to apply

therefor was afforded at the former hearing, unless the relief is

sought on the basis of circumstances that have arisen subsequent to the

hearing. Subject to the other requirements and restrictions of this

section, a motion to reopen proceedings for consideration or further

consideration of an application for relief under section 212(c) of the

Act may be granted if the alien demonstrates that he or she was

statutorily eligible for such relief prior to the entry of the

administratively final order of deportation.

(2) Except as provided in paragraph (c)(3), a party may file only

one motion to reopen proceedings and that motion must be filed not

later than 20 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened, or

within 20 days of the effective date of the final rule, whichever is

later.

(3) The time and numerical limitations set forth in paragraph

(c)(2) shall not apply to a motion to reopen proceedings:

(i) Filed pursuant to the provisions of Sec. 3.23(b)(5) of this

part.

(ii) To apply or reapply for asylum, or withholding of deportation,

based on changed circumstances arising subsequent to the commencement

of proceedings in the country of nationality or in the country to which

deportation has been ordered, or

(iii) Agreed upon by all parties and jointly filed.

(4) A motion to reopen a decision rendered by an Immigration Judge

or Service Officer that is pending when an appeal is filed, or that is

filed subsequent to the filing of an appeal to the Board from the

proceedings sought to be reopened, shall be deemed a motion to remand

for further proceedings before the Immigration Judge or the Service

Officer from whose decision the appeal was taken. Such motion, which

shall be consolidated with, and considered by the Board in connection

with, the appeal to the Board, is subject to the requirements set forth

in paragraph (c)(1) and the time and numerical limitations set forth in

paragraph (c)(2).

(d) Departure or deportation. A motion to reopen or a motion to

reconsider shall not be made by or on behalf of a person who is the

subject of deportation or exclusion proceedings subsequent to his or

her departure from the United States. Any departure from the United

States, including the deportation of a person who is the subject of

deportation or exclusion proceedings, occurring after the filing of a

motion to reopen or a motion to reconsider, shall constitute a

withdrawal of such motion.

(e) Judicial proceedings. Motions to reopen or reconsider shall

state whether the validity of the deportation order has been or is the

subject of any judicial proceeding and, if so, the nature and date

thereof, the court in which such proceeding took place or is pending,

and its result or status. In any case in which a deportation order is

in effect, any motion to reopen or reconsider such order shall include

a statement by or on behalf of the moving party declaring whether the

subject of the deportation order is also the subject of any pending

criminal proceeding under section 242(e) of the Act, and, if so, the

current status of that proceeding. If a motion to reopen or reconsider

seeks discretionary relief, the motion shall include a statement by or

on behalf of the moving party declaring whether the alien for whose

relief the motion is being filed is subject to any pending criminal

prosecution and, if so, the nature and current status of that

prosecution.

(f) Stay of deportation. Except where a motion is filed pursuant to

the provisions of Sec. 3.23(b)(5) of this part, the filing of a motion

to reopen or a motion to reconsider shall not stay the execution of any

decision made in the case. Execution of such decision shall proceed

unless a stay of execution is specifically granted by the Board, the

Immigration Judge, or an authorized officer of the Service.

(g) Distribution of motion papers. A motion to reopen to a motion

to reconsider a decision of the Board pertaining to proceedings before

an Immigration Judge shall be filed with the Office of the Immigration

Judge having administrative control over the record of proceeding. A

motion to reopen or a motion to reconsider a decision of the Board

pertaining to a matter initially adjudicated by an officer of the

Service shall be filed with the officer of the Service having

administrative control over the record of proceeding; provided,

however, that when a motion to reopen or a motion to reconsider is made

by the Commissioner or any other duly authorized officer of the Service

in proceedings in which the Service has administrative control over the

record of proceedings, the record of proceedings in the case and the

motion shall be filed directly with the Board. In all cases, the motion

shall include proof of service on the opposing party and all

attachments. The moving party may only file a brief if it is included

with the motion. The opposing party shall have ten days from the date

of service of the motion to submit a brief in opposition to the motion,

which shall be filed with the Office where the motion was filed, along

with proof of service of a copy of the brief on the opposing party. The

Board, in its discretion, may extend the time within which such brief

is to be submitted. A motion shall be deemed unopposed unless a timely

response is made.

(h) Oral argument. A request for oral argument, if desired, shall

be incorporated in the motion to reopen or reconsider. The Board in its

discretion may grant or deny requests for oral argument.

(i) Ruling on motion. Rulings upon motions to reopen or motions to

reconsider shall be by written order. If the order directs a reopening

and further proceedings are necessary, the record shall be returned to

the Office of the Immigration Judge or the officer of the Service

having administrative control over the place where the reopened

proceedings are to be conducted. If the motion to reconsider is

granted, the decision upon such reconsideration shall affirm, modify,

or reverse the original decision made in the case.

6. Section 3.3 is revised to read as follows:

Sec. 3.3 Notice of appeal.

(a) A party affected by a decision who is entitled under this

chapter to appeal to the Board shall be given notice of his or her

right to appeal. An appeal of a decision of an Immigration Judge shall

be taken by filing a Notice of Appeal to the Board of Immigration

Appeals of Decision of Immigration Judge (Form EOIR-26) with the Office

of the Immigration Judge having administrative control over the record

of proceeding, within the time specified in the governing sections of

this chapter. An appeal of a decision of a Service Officer shall be

taken by filing a Notice of Appeal to the Board of Immigration Appeals

of Decision of District Director (Form EOIR-29) with the office of the

Service having administrative control over the record of proceeding,

within the time specified in the governing sections of this chapter. A

notice of appeal of a decision of an Immigration Judge is not

considered to be filed until the Form EOIR-26 is actually received in

the appropriate Office of the Immigration Judge and the fee provisions

of Sec. 3.8 of this part are satisfied. A notice of appeal of a

decision of a district director is not considered to be filed until the

Form EOIR-29 is actually received in the appropriate office of the

Service and the fee provisions of Sec. 3.8 of this part are satisfied.

The certification of a case as provided in this part shall not relieve

the party affected from compliance with the provisions of this section

in the event that he or she is entitled, and desires, to appeal from an

initial decision, nor shall it serve to extend the time specified in

the applicable parts of this chapter for the taking of an appeal.

Departure from the United States of a person in deportation proceedings

prior to the taking of an appeal from a decision in his or her case

shall constitute a waiver of his or her right to appeal.

(b) Items to be included in the Notice of Appeal. The party taking

the appeal must meaningfully identify the reasons for the appeal in the

notice of appeal in order to avoid summary dismissal pursuant to

Sec. 3.1(d)(1-a)(i) of this part. The statement on the notice of appeal

must specifically identify the findings of fact, the conclusions of

law, or both, that are being challenged. If a question of law is

presented, supporting authority must be cited. If the dispute is over

the findings of fact, the specific facts contested must be identified.

Where the appeal concerns discretionary relief, the appellant must

state whether the alleged error relates to statutory grounds of

eligibility or to the exercise of discretion and must identify the

specific factual and legal finding or findings that are being

challenged. In addition, the statement of the reasons for appeal must

be set forth with sufficient clarity and specificity that the Board may

address the appeal without first reviewing the record and constructing

the arguments. The appellant must also indicate in the notice of appeal

whether he or she desires oral argument before the Board and whether he

or she will be filing a separate written brief or statement in support

of the appeal.

(c) Briefs. Briefs in support of or in opposition to an appeal

shall be filed with the Office of the Immigration Judge or, where the

appeal is from a decision of a Service Officer, with the officer of the

Service having administrative control over the case. If the alien

concerned is not detained, the appellant shall be provided 30 days in

which to file a brief unless a shorter period is specified by the

Immigration Judge or by the Service Officer from whose decision the

appeal is taken. If the alien concerned is detained, the appellant

shall be provided 14 days in which to file a brief, unless a shorter

period is specified by the Immigration Judge or by the Service Officer

from whose decision the appeal is taken. The appellee shall have the

same period of time in which to file a reply brief that was initially

granted to the appellant to file his or her brief. The time to file a

reply brief commences from the date upon which the appellant's brief

was due, as originally set or extended by the Board, or the date upon

which such brief was filed, whichever is earlier. The Board, upon

motion, may extend the period for filing a brief or a reply brief for

up to 90 days for good cause shown and may authorize the filing of

briefs directly with it. If, in its discretion, the Board determines

that the interests of justice would be served thereby, it may consider

a brief filed out of time in its adjudication of an appeal. All briefs

and motions regarding the filing of briefs shall include proof of

service of the brief or motion on the opposing party.

7. Section 3.4 is revised to read as follows:

Sec. 3.4 Withdrawal of appeal.

In any case in which an appeal has been taken, the party taking the

appeal may file a written withdrawal thereof with the office at which

the notice of appeal was filed. If the record in the case has not been

forwarded to the Board on appeal in accordance with Sec. 3.5 of this

part, the decision made in the case shall be final to the same extent

as if no appeal had been taken. If the record has been forwarded on

appeal, the withdrawal of the appeal shall be forwarded to the Board

and, if no decision in the case has been made on the appeal, the record

shall be returned and the initial decision shall be final to the same

extent as if no appeal had been taken. If a decision on the appeal

shall have been made by the Board in the case, further action shall be

taken in accordance therewith. Departure from the United States of a

person who is the subject of deportation proceedings subsequent to the

taking of an appeal but prior to a decision thereon shall constitute a

withdrawal of the appeal and the initial decision in the case shall be

final to the same extent as though no appeal had been taken.

8. Section 3.5 is revised to read as follows:

Sec. 3.5 Forwarding of record on appeal.

If an appeal is taken from a decision, as provided in this chapter,

the entire record of proceeding shall be forwarded to the Board by the

office having administrative jurisdiction over the case upon timely

receipt of the briefs of the parties, or upon expiration of the time

allowed for the submission of such briefs. After an appeal to the Board

has been filed, a district director or regional service center director

need not forward such appeal to the Board, but may reopen and

reconsider any decision made by the director, if the director's new

decision will grant the benefit that has been requested in the appeal,

provided that the director's new decision must be served on the

appealing party within 45 days of receipt of any briefs or upon

expiration of the time allowed for the submission of any briefs. If the

director's new decision is not served within these time limits or the

appealing party does not agree that the new decision disposes of the

matter, the record of proceeding shall be immediately forwarded to the

Board.

9. Section 3.6 is revised to read as follows:

Sec. 3.6 Stay of execution of decision.

(a) Except as provided under Sec. 242.2(d) of this chapter and

paragraph (b) of this section, the decision in any proceeding under

this chapter from which an appeal to the Board may be taken shall not

be executed during the time allowed for the filing of an appeal unless

a waiver of the right to appeal is filed, nor shall such decision be

executed while an appeal is pending or while a case is before the Board

by way of certification.

(b) The provisions of paragraph (a) of this section shall not apply

to an order of an Immigration Judge under Sec. 3.23 or Sec. 242.22 of

this chapter denying a motion to reopen or reconsider or to stay

deportation, except where such order expressly grants a stay or where

the motion was filed pursuant to the provisions of Sec. 3.23(b)(5). The

Board may, in its discretion, stay deportation while an appeal is

pending from any such order if no stay has been granted by the

Immigration Judge or a Service officer.

10. Section 3.7 is revised to read as follows:

Sec. 3.7 Notice of certification.

Whenever, in accordance with the provisions of Sec. 3.1(c) of this

part, a case is required to be certified to the Board, the alien or

other party affected shall be given notice of certification. An

Immigration Judge or Service Officer may certify a case only after an

initial decision has been made and before an appeal has been taken. If

it is known at the time the initial decision is rendered that the case

will be certified, the notice of certification shall be included in

such decision and no further notice of certification shall be required.

If it is not known until after the initial decision is rendered that

the case will be certified, the office of the Service or Office of the

Immigration Judge having administrative control over the record of

proceeding shall cause a Notice of Certification to be served upon the

parties. In either case, the notice shall inform the parties that the

case is required to be certified to the Board and that they have the

right to make representations before the Board, including the making of

a request for oral argument and the submission of a brief. If either

party desires to submit a brief, it shall be submitted to the office of

the Service or Office of the Immigration Judge having administrative

control over the record of proceeding for transmittal to the Board

within the time prescribed in Sec. 3.3(c) of this part. The case shall

be certified and forwarded to the Board by the office of the Service or

Office of the Immigration Judge having administrative jurisdiction over

the case upon receipt of the brief, or upon the expiration of the time

within which the brief may be submitted, or upon receipt of a written

waiver of the right to submit a brief. The Board in its discretion may

elect to accept for review or not accept for review any such certified

case. If the Board declines to accept a certified case for review, the

underlying decision shall become final on the date of the Board's

declination.

11. Section 3.8 is revised to read as follows:

Sec. 3.8 Fees.

Except as otherwise provided in this section, a notice of appeal or

motion filed under this subpart by any person other than an officer of

the Service relating to a proceeding held before an Immigration Judge

shall be accompanied by evidence that the specified fee has been

remitted in accordance with the applicable provisions of Secs. 3.38(c)

and 103.7 of this chapter. Except as otherwise provided in this

section, a notice of appeal or motion filed under this subpart by any

person other than an officer of the Service relating to a matter

involving an adjudication by an officer of the Service shall be

accompanied by the specified fee and remitted in accordance with the

applicable provisions of Sec. 103.7 of this chapter. In any case in

which an alien or other party affected is unable to pay the fee fixed

for an appeal or a motion, he or she shall file with the notice of

appeal or the motion his or her affidavit or unsworn declaration, made

pursuant to 28 U.S.C. 1746, stating the nature of the motion or appeal

and his or her belief that he or she is entitled to redress. Such

document shall also establish his or her inability to pay the required

fee, and shall request permission to prosecute the appeal or motion

without payment of such fee. When such a document is filed with the

officer of the Service or the Immigration Judge from whose decision the

appeal is taken or with respect to whose decision the motion is

addressed, such Service Officer or Immigration Judge shall, if he or

she believes that the appeal or motion is not taken or made in good

faith, certify in writing his or her reasons for such belief for

consideration by the Board. The Board may, in its discretion, authorize

the prosecution of any appeal or motion without payment of the required

fee.

12. Section 3.23 is amended by revising paragraph (b) to read as

follows:

Sec. 3.23 Motions.

* * * * *

(b) Reopening/Reconsideration. (1) The Immigration Judge may upon

his or her own motion, or upon motion of the trail attorney or the

alien, reopen or reconsider any case in which he or she has made a

decision, unless jurisdiction in the case is vested in the Board of

Immigration Appeals under part 3 of this chapter. Motions to reopen or

reconsider a decision of the Immigration Judge must be filed with the

Office of the Immigration Judge having administrative control over the

record of proceeding. Such motions shall comply with applicable

provisions of 8 CFR 208.4, 208.19, and 242.22. The Immigration Judge

may set and extend time limits for replies to motions to reopen or

reconsider. A motion shall be deemed unopposed unless timely response

is made. A motion to reconsider shall state the reasons for the motion

and shall be supported by pertinent authority. Any motion to reopen for

the purpose of acting on an application for relief must be accompanied

by the appropriate application for relief and all supporting documents.

A motion to reopen will not be granted unless the Immigration Judge is

satisfied that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the

hearing; nor will any motion to reopen for the purpose of providing the

alien an opportunity to apply for any form of discretionary relief be

granted if the alien's rights to make such application were fully

explained to him or her by the Immigration Judge and he or she was

afforded an opportunity to do so at the hearing, unless circumstances

have arisen thereafter on the basis of which the request is being made.

Subject to the other requirements and restrictions of this section, a

motion to reopen proceedings for consideration or further consideration

of an application for relief under section 212(c) of the Act may be

granted if the alien demonstrates that he or she was statutorily

eligible for such relief prior to the entry of the administratively

final order of deportation.

(2) A motion to reconsider must be filed within 20 days after the

date on which the decision for which reconsideration is being sought

was rendered, or within 20 days of the effective date of the final

rule, whichever is later. A party may file only one motion to

reconsider any given decision and may not seek reconsideration of a

decision denying a previous motion to reconsider.

(3) Except as provided in paragraph (b)(4), a party may file only

one motion to reopen proceedings and that motion must be filed not

later than 20 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened, or

within 20 days of the effective date of the final rule, whichever is

later.

(4) The time and numerical limitations set forth in paragraph

(b)(3) shall not apply to a motion to reopen filed pursuant to the

provisions of paragraph (b)(5), or to a motion to reopen proceedings to

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

changed circumstances, which arise subsequent to the commencement of

proceedings, in the country of nationality or in the country to which

deportation has been ordered, or to a motion to reopen agreed upon by

all parties and jointly filed.

(5) A motion to reopen deportation proceedings to rescind an order

of deportation entered in absentia must be filed:

(i) Within 180 days after the date of the order of deportation. The

motion must demonstrate that the failure to appear was because of

exceptional circumstances beyond the control of the alien (such as

serious illness of the alien or death of an immediate relative of the

alien, but not including less compelling circumstances); or

(ii) At any time if the alien demonstrates that the alien did not

receive notice in accordance with subsection 242B(a)(2) of the Act, 8

U.S.C. 1252b(a)(2), and notice was required pursuant to such

subsection; or the alien demonstrates that the alien was in Federal or

State custody and did not appear through no fault of the alien.

(6) When requested in conjunction with a motion to reopen or a

motion to reconsider, the Immigration Judge may stay the execution of a

final order of deportation or exclusion. The filing of a motion to

reopen pursuant to the provisions of paragraph (b)(5) shall stay the

deportation of the alien pending decision on the motion and the

adjudication of any properly filed administrative appeal.

13. Section 3.38 is amended by revising paragraph (b) to read as

follows:

Sec. 3.38 Appeals.

* * * * *

(b) The Notice of Appeals to the Board of Immigration Appeals of

Decision of Immigration Judge (Form EOIR-26) shall be filed with the

Office of the Immigration Judge having administrative control over the

record of proceeding within 10 calendar days after the Immigration

Judge has rendered an oral decision on the record or within 10 calendar

days after a written decision has been served in person to the parties.

Where the decision of the Immigration Judge is served by mail, the

Notice of Appeal to the Board of Immigration Appeals of Decision of

Immigration Judge (Form EOIR-26) shall be filed with the Office of the

Immigration Judge having administrative control over the record of

proceeding within 13 calendar days after the date the decision is

mailed. If the final date for filing falls on a Saturday, Sunday, or

legal holiday, this appeal time shall be extended to the next business

day. A notice of appeals may not be filed by any party who has waived

appeal.

* * * * *

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

14. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR 1982 Comp., p. 166; 8 CFR part 2.

Sec. 103.5 [Amended]

15. Section 103.5 paragraph (a)(1)(i) is amended by revising the

phrase ``part 242'' to read ``parts 3 and 242''.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

16. The authority citation for part 208 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1252 note, 1252b,

1253, and 1283.

17. Section 208.19 paragraph (a) is revised to read as follows:

Sec. 208.19 Motion to reopen or reconsider.

(a) A proceeding in which asylum or withholding of deportation was

denied may be reopened or a decision from such a proceeding

reconsidered for proper cause upon motion pursuant to the requirements

of 8 CFR 3.2, 3.23, 103.5, and 242.22 where applicable.

* * * * *

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

18. The authority citation for part 242 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,

1252b, 1254, 1362, 8 CFR part 2.

19. Section 242.21 paragraph (a) is revised to read as follows:

Sec. 242.21 Appeals.

(a) Pursuant to part 3 of this chapter, an appeal shall lie from a

decision of an Immigration Judge to the Board of Immigration Appeals,

except that no appeal shall lie from an order of deportation or

exclusion entered in absentia. The procedures regarding the filing of a

Notice of Appeal (Form EOIR-26), fees, and briefs are set forth in

Secs. 3.3, 3.31, and 3.38 of this chapter. An appeal may be summarily

dismissed if it comes within the provisions of Sec. 3.1(d)(1-a) of this

chapter.

* * * * *

20. Section 242.22 is amended by revising the first sentence and by

adding a sentence at the end, to read as follows:

Sec. 242.22 Reopening or reconsideration.

Motions to reopen or reconsider are subject to the requirements and

limitations set forth in Sec. 3.23 of this chapter. * * * The filing of

a motion to reopen pursuant to the provisions of Sec. 3.23(b)(5) of

this chapter shall stay the deportation of the alien pending the

disposition of the motion and the adjudication of any properly filed

administrative appeal.

Dated: May 25, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-13547 Filed 6-6-94; 8:45 am]

BILLING CODE 1531-26-M