Motions and Appeals in Immigration Proceedings

SUMMARY: Proposed regulations were published in the Federal Register on

June 7, 1994 concerning motions and appeals in immigration proceedings

and on May 13, 1994 concerning fees. The June proposed rulemaking was

promulgated to implement section 545 of the Immigration Act of 1990,

Public Law 101-649, which requires both time and number limitations on

motions to reopen and reconsider and changes in the substantive and

procedural aspects of motion and appeal practice. The May proposed

rulemaking was promulgated to establish an alternative procedure for

filing proof of fee payments with the Board of Immigration Appeals (the

``Board'').

Since the publication of these two proposed rules, the agency has

further examined its current appeal procedures and has decided to

establish a uniform central system for filing and tracking appeals

before the Board. Under the proposed procedure, parties would file a

notice of appeal from a decision of an Immigration Judge and remit the

appeal fee or fee waiver petition with the notice of appeal directly to

the Board. The rule also would require that motions to reopen and

motions to reconsider decisions of the Board be filed directly with the

Board accompanied by the appropriate fee or fee waiver petition. This

rule would supersede the May and June proposed rulemakings.

This proposed centralization of the appeals procedure is

fundamentally interrelated to the proposed changes of both the June and

the May proposed rulemakings. Therefore, the agency has determined to

merge these substantive and procedural proposals into one rule and to

provide an opportunity for public comment on this merged rule. The June

proposed rule has been changed to clarify certain provisions and to

reflect many of the commenters' concerns. The single unified proposed

rule is published herein and addresses both the language of section

545(d) of the Immigration Act of 1990 and new procedural changes to the

filing of appeals, motions, and their concomitant fees with the Board.

DATES: Written comments must be received on or before June 8, 1995.

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: The agency recently published two proposed

rules concerning motions to reopen, motions to reconsider, notices of

appeal, and filing fees. 59 FR 29386 (published June 7, 1994) (the

``June proposed rulemaking''); 59 FR 24977 (1994) (published May 13,

1994) (the ``May proposed rulemaking''). The June proposed rulemaking

established both time and number limitations on motions to reopen

proceedings and on motions to reconsider decisions as well as certain

changes to appellate procedures to reflect the statutory directives in

section 545 of the Immigration Act of 1990. The May proposed rule

amended the requirement that the parties, after remitting all fee

payments to the Immigration and Naturalization Service (the

``Service''), file the proof of payment with the Office of the

Immigration Judge within 10 calendar days of the issuance of an oral

decision or within 13 days of the mailing of a written decision. The

May proposed rulemaking retained the filing of proof of fee payment

procedure but expanded the time frame for filing to 30 days.

Since the publication of these proposed rules, the agency has

decided that additional changes should be made in its current

procedures for filing appeals and other filings with the Board. These

changes are interrelated to the regulatory changes proposed in both May

and June 1994 concerning substantive and procedural changes in motion

and appeal practice. Therefore, the rule concerning motions and appeals

has been modified to reflect the new appeal procedures and to clarify

or supersede certain provisions within the original proposed rules. In

addition, several changes have been made in response to the comments

received concerning the proposed rules. However, the agency is

continuing to consider and evaluate each of the issues raised in the

comments to the original proposed rules. Comments which were submitted

in response to the first publication will continue to be considered,

and it will not be necessary to resubmit comments concerning those

provisions which are repeated herein. However, the public is encouraged

to comment on those areas in which the proposed rule has been amended.

An outline of the changes to the original motion and appeals rule,

as well as an explanation of the new appeal filing procedures follows.

(1) Motions to reconsider. The time frame for filing a motion to

reconsider a decision with the Board has been expanded from 20 to 30

days after the mailing of the Board's decision, or within 30 days of

the effective date of the final rule, whichever is later. No additional

time is added for mailing of the decision. Language has been added to

the rule to state that a motion to reconsider shall specify the errors

of fact or law in the prior Board order. This language clarifies that a

motion to reconsider a decision is a request to reexamine the prior

Board decision. It is not to be confused with a motion to reopen, which

addresses the decision in light of the existence of new law or fact or

changed circumstances. Many of the comments objected to the 20-day

limit for motions to reconsider on the basis that this time frame did

not allow sufficient time for the development of new evidence. As

stated above, this argument is not applicable for motions to

reconsider. Motions to reconsider should be brought to the attention of

the adjudicator in a prompt manner, while the circumstances surrounding

the decision are easier to reexamine. Nonetheless, the agency has

proposed expanding the time to file a motion to reconsider by an

additional 10 days for [[Page 24574]] a total of 30 days subsequent to

the decision. As the time frame was expanded by 10 additional days, the

3-day extension for mailing has been removed.

(2) Motions to reopen.

a. Numerical limit. Language has been added to clarify that a party

many file only one motion to reopen proceedings, whether before the

Board or the Immigration Judge. This provision makes clear that a

motion to reopen shall be limited to one during the entire course of

proceedings. This language reflects the direction in the Joint

Explanatory Statement of the Committee of Conference (p. 133), of the

Immigration Act of 1990, that only one motion to reopen and one motion

to reconsider a decision be permitted in immigration proceedings.

b. Time limit. The proposed rule had provided a 20-day time frame

for filing a motion to reopen. Many commenters argued that the purpose

of the motion to reopen was to provide an opportunity to bring new

evidence to light, to acknowledge recent changes in the law, or to

provide an opportunity for the applicant to seek additional relief that

was not available in the first instance. The commenters further urged

that unrepresented aliens and, in particular, detained aliens would not

have access to counsel in time to develop a meaningful motion to reopen

within the 20-day period, regardless of the merits of their position.

The agency has carefully weighted these comments and agrees that a

greater time period should be provided for motions to reopen to allow

for those situations described above. The agency has determined that

such motions must be filed within 90 days of the final decision of the

adjudicator. At present, the regulations provide for unlimited motions

to reopen without any time limit for filing. The proposed rule will

dramatically limit this form of relief to one opportunity, and such

opportunity for reopening will be limited to a 90-day time period.

These limitations reflect the congressional intent to streamline the

deportation process, while providing a reasonable opportunity for

meritorious cases to be heard.

c. Exceptions. The time and numerical limitations set forth in the

body of the rule do not apply in certain circumstances. In the case of

an applicant seeking to apply or reapply for asylum or withholding of

deportation, the language has been modified to provide for a motion to

reopen based on changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered, if

such evidence is material and was not available and would not have been

discovered or presented at the former hearing. This language mirrors

the language in section 3.2(c)(1) and will reflect more accurately the

standard for reopening that is currently in practice.

d. Judicial proceedings. The rule clarifies that motions to reopen

or reconsider shall indicate whether the validity of both deportation

or exclusion orders have been or are the subject of any judicial

proceedings. This change amends the rule to include reference to

exclusion as well as deportation orders, and its reference was

inadvertently omitted from the original proposed rule.

(3) New appeal filing procedures. The rule proposes to amend the

filing procedures with the Board to require parties to file all notices

of appeal of decisions of immigration judges, as well as motions to

reopen and motions to reconsider decisions of the Board directly with

the Board. The proposed rule will also abolish the current system of

remitting the fees in these cases to the Service. Instead, the proposed

rule provides that the required fee or fee waiver petition must

accompany the notice of appeal or motion and be filed directly with the

Board. Notices of appeal from Service officer decisions and appropriate

fees or fee waiver petitions shall continue to be filed directly with

the office of the Service having administrative control over the record

of proceedings.

In order to allow sufficient time for filing an appeal directly

with the Board, this rule expands the time frame in which to file an

appeal. Where the Immigration Judge decision is rendered orally, the

rule will require that a party file a notice of appeal within 15

calendar days of the Immigration Judge's decision. Where a written

decision is served by mail, the rule will require that a party file a

notice of appeal within 20 calendar days after the decision was mailed.

Briefs in support of or in opposition to an appeal from a decision of

an Immigration Judge shall be filed directly with the Board also.

The rule restates that certification of a case does not relieve a

party from compliance with the appeals provisions. Further, departure

from the Untied States by an individual in deportation proceedings

constitutes a waiver of his or her right to appeal.

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, Sec. 1(b). The Attorney General has determined

that this rule is not a significant regulatory action under Executive

Order 12866, Sec. 3(f), and accordingly this rule has not been reviewed

by the Office of Management and Budget.

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving

it, certifies that this rule will not have a significant economic

impact on a substantial number of small entities.

This final rule will not have substantial direct effects on the

states, on the relationship between the national government and the

states, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with section 6

of Executive Order 12612, it is determined that this rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

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

[[Page 24575]] 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 argument 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 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 with the Board within 30 days after the mailing of the Board

decision, or within 30 days of 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. A motion to reconsider shall state the

reasons for the motion by specifying the errors of fact or law in the

prior Board decision and shall be supported by pertinent authority. A

motion to reconsider a decision render 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 appeals 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

therefore 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 (8 U.S.C. 1182(c)) 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 or deportation.

(2) Except as provided in paragraph (c)(3) of this section, a party

may file only one motion to reopen proceedings (whether before the

Board or the Immigration Judge) and that motion must be filed not later

than 90 days after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened, or within 90 days

of [Insert effective date of the final rule], whichever is later.

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

(c)(2) of this section shall not apply to a motion to reopen

proceedings;

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

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

based on changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered, if such evidence

is material and was not available and would not have been discovered or

presented at the former hearing; 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) of this section and the time and numerical

limitations set forth in paragraph (c)(2) of this section.

(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. [[Page 24576]]

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

state whether the validity of the deportation or exclusion 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 or exclusion 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 order is also the

subject of any pending criminal proceeding under section 242(e) of the

Act (8 U.S.C. 1252(e)), 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), 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) Filing procedures. (1) Distribution of motion papers. A motion

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

proceedings before an Immigration Judge shall be filed directly with

the Board and must be accompanied by a check, money order, or fee

waiver request in satisfaction of the fee requirements of Sec. 3.8. The

record of proceeding pertaining to such a motion shall be forwarded to

the Board upon the request or order of the Board. 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 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. If such motion is filed directly with an

office of the Service, the entire record of proceeding shall be

forwarded to the Board by the Service officer promptly upon receipt of

the briefs of the parties, or upon expiration of the time allowed for

the submission of such briefs. A motion and any submission made in

conjunction with a motion must be in English or accompanied by a

certified English translation. If the moving party, other than the

Service, is represented, a Notice of Entry of Appearance as Attorney or

Representative Before the Board (Form EOIR-27) must be filed with the

motion. In all cases, the motion shall include proof of service on the

opposing party of the motion and all attachments.

(2) Briefs and response. The moving party may file a brief if it is

included with the motion. If the motion is filed directly with the

Board pursuant to paragraph (g)(1) of this section, the opposing party

shall have 13 days from the date of service of the motion to file a

brief in opposition to the motion directly with the Board. If the

motion is filed with an office of the Service pursuant to paragraph

(g)(1) of this section, the opposing party shall have 10 days from the

date of filing of the motion to file a brief in opposition to the

motion directly with the office of the Service. In all cases, briefs

and any other filings made in conjunction with a motion shall include

proof of service on the opposing party. The Board, in its discretion,

may extend the time within which such brief is to be submitted and may

authorize the filing of a brief directly with the Board. A motion shall

be deemed unopposed unless a timely response is made. The Board may, in

its discretion, consider a brief filed out of time.

(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) Filing. (1) Appeal from decision of an Immigration Judge. A

party affected by a decision who is entitled under this chapter to

appeal to the Board from a decision of an Immigration Judge shall be

given notice of his or her right to appeal. An appeal from 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) directly with the Board, within the time specified in the

governing sections of this chapter. The appealing parties are only

those parties who are covered by the decision of an Immigration Judge

and who are specifically named on the Notice of Appeal. The appeal must

be accompanied by a check, money order, or fee waiver request in

satisfaction of the fee requirements of Sec. 3.8. If the respondent/

applicant is represented, a Notice of Entry of Appearance as Attorney

or Representative Before the Board (Form EOIR-27) must be filed with

the Notice of Appeal. The appeal must reflect proof of service of a

copy of the appeal and all attachments on the opposing party. The

appeal and all attachments must be in English or accompanied by a

certified English translation. An appeal is not properly filed unless

it is received at the Board, along with all required documents, fees or

fee waiver requests, and proof of service, within the time specified in

the governing sections of this chapter. A notice of appeal may not be

filed by any party who has waived appeal pursuant to Sec. 3.39.

(2) Appeal from decision of a Service officer. A party affected by

a decision who is entitled under this chapter to appeal to the Board

from a decision of a Service officer shall be given notice of his or

her right to appeal. An appeal from 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) directly 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. The appeal must be accompanied by a check, money order,

or fee waiver request in satisfaction of the fee requirements of

Sec. 3.8 and, if the appellant is represented a Notice of Entry of

Appearance as Attorney or Representative Before the Board (Form EOIR-

27). The appeal and all attachments must be in English or accompanied

by a certified English translation. An appeal is not properly filed

until its receipt at the appropriate office of the Service, together

with all required documents and fees, and the fee provisions of

Sec. 3.8 are satisfied.

(b) Statement of the basis of appeal. The party taking the appeal

must identify the reasons for the appeal in the Notice of Appeal (Form

EOIR-26 or [[Page 24577]] Form EOIR-29) or in any attachments thereto,

in order to avoid summary dismissal pursuant to Sec. 3.1(d)(1-a)(i).

The statement 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. The appellant must also indicate in the Notice of

Appeal (Form EOIR-26 or Form EOIR-29) 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. (1) Appeal from decision of an Immigration Judge.

Briefs in support of or in opposition to an appeal from a decision of

an Immigration Judge shall be filed directly with the Board in

accordance with a written briefing schedule set by the Board. An

appellant who is not detained shall be provided 30 days in which to

file a brief, unless a shorter period is specified by the Board. A

detained appellant shall be provided 14 days in which to file a brief,

unless a shorter period is specified by the Board. 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.

The Board, upon written motion, may extend the period for filing a

brief or a reply brief for up to 90 days for good cause shown. In its

discretion, the Board may consider a brief that has been filed out of

time. All briefs, filings, and motions filed in conjunction with an

appeal shall include proof of service on the opposing party.

(2) Appeal from decision of a Service officer. Briefs in support of

or in opposition to an appeal from a decision of a Service officer

shall be filed directly with the office of the Service having

administrative control over the file in accordance with a briefing

schedule set by that office. If the alien concerned is not detained,

the appellant shall be provided 30 days in which to file a brief. 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 Service officer from whose decision the appeal is taken. The

Service 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 alien's brief was due, as originally set or extended. Upon

written request of the alien, the Service officer from whose decision

the appeal is taken or the Board may extend the period for filing a

brief or a reply brief for good cause shown. The Board may authorize

the filing of briefs directly with the Board. In its discretion, the

Board may consider a brief that has been filed out of time. All briefs

and other documents filed in conjunction with an appeal, unless filed

by an alien directly with a Service office, shall include proof of

service on the opposing party.

(d) Effect of Certification. 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.

(e) Effect of Departure from the United States. Departure from the

United States of a person who is the subject of 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.

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, 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.

(a) Appeal from decision of an Immigration Judge. If an appeal is

taken from a decision of an Immigration Judge, the record of proceeding

shall be forwarded to the Board upon the request or the order of the

Board.

(b) Appeal from Decision of a Service officer. If an appeal is

taken from a decision of a Service officer, the record of proceeding

shall be forwarded to the Board by the Service officer promptly upon

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

allowed for the submission of such briefs. A Service officer need not

forward such an appeal to the Board, but may reopen and reconsider any

decision made by the officer if the new decision will grant the benefit

that has been requested in the appeal. The 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

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: [[Page 24578]]

Sec. 3.7 Notice of Certification.

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

(a) Appeal from decision of an Immigration Judge or motion within

the jurisdiction of the Board. Except as provided in paragraph (c) of

this section or when filed by an officer of the Service, a Notice of

Appeal to the Board of Immigration Appeals of Decision of Immigration

Judge (Form EOIR-26) filed pursuant to Sec. 3.3(a), or a motion related

to Immigration Judge proceedings that is within the jurisdiction of the

Board and is filed directly with the Board pursuant to Sec. 3.2(g),

shall be accompanied by the fee specified in applicable provisions of

Sec. 103.7(b)(1) of this chapter. Fees shall be paid by check or money

order payable to the ``United States Department of Justice.''

Remittances must be drawn on a bank or other institution located in the

United States and be payable in United States currency. A remittance

shall not satisfy the fee requirements of this section if the

remittance is found uncollectible.

(b) Appeal from decision of a Service officer or motion within the

jurisdiction of the Board. Except as provided in paragraph (c) of this

section, a Notice of Appeal to the Board of Immigration Appeals of

Decision of District Director (Form EOIR-29), or a motion related to

such a case filed under this part by any person other than an officer

of the Service, filed direction with the Service shall be accompanied

by the appropriate fee specified, and remitted in accordance with the

provisions of Sec. 103.7 of this chapter.

(c) Waiver of fees. The Board may, in its discretion, authorize the

prosecution of any appeal or any motion over which the Board has

jurisdiction without payment of the required fee. In any case in which

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

appeal or motion, he or she shall file with the Notice of Appeal (Form

EOIR-26 or Form EOIR-29) or motion, his or her affidavit or unsworn

declarations made pursuant to 28 U.S.C. 1746, stating the nature of the

proceeding 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. If the request does not establish

the inability to pay the required fee, the appeal or motion will not be

deemed properly filed.

12. In Sec. 3.23, paragraph (b) is revised 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 trial 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 this part. If the Immigration Judge is

unavailable or unable to adjudicate the motion to reopen, the Chief

Immigration Judge or his delegate shall reassign such motion to another

Immigration Judge. 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 action on an

application for relief must be accompanied by the appropriate

application for relief and all supporting documents.

(2) 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 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 (8 U.S.C. 1182(c)) 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.

(3) A motion to reconsider must be filed within 30 days after the

date on which the decision for which reconsideration is being sought

was rendered, or within 30 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.

(4) Except as provided in paragraph (b)(5) of this section, a party

may file only one motion to reopen proceedings (whether before the

Board or the Immigration Judge) and that motion must be filed not later

than 90 days after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened, or within 90 days

of the effective date of the final rule, whichever is later.

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

(b)(4) of this section shall not apply to a motion to reopen filed

pursuant to the [[Page 24579]] provisions of paragraph (b)(6) of this

section, 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.

(6) 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 (e.g.,

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.

(7) Upon request by an alien 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) of this section

shall stay the deportation of the alien pending decision on the motion

and the adjudication of any properly filed administrative appeal.

13. Section 3.24 is revised to read as follows:

Sec. 3.24 Fees pertaining to matters within the jurisdiction of the

Immigration Judge.

Unless waived by the Immigration Judge, any fee pertaining to a

matter within the jurisdiction of the Immigration Judge shall be

remitted in accordance with the provisions of Sec. 103.7 of this

chapter. Any such fee may be waived by the Immigration Judge upon a

showing that the respondent/applicant is incapable of paying the fees

because of indigency. A properly executed affidavit or unsworn

declaration made pursuant to 28 U.S.C. 1746 by the respondent/applicant

must accompany the request for waiver of fees and shall substantiate

the indigency of the respondent/applicant.

14. Section 3.31 is amended by revising paragraph (b) to read as

follows:

Sec. 3.31 Filing documents and applications.

* * * * *

(b) All documents or applications requiring the payment of a fee

must be accompanied by a fee receipt from the Service or by an

application for a waiver of fees pursuant to Sec. 3.24. Except as

provided in paragraphs (a) and (c) of Sec. 3.8, any fee relating to

Immigration Judge proceedings shall be paid to, and accepted by, any

Service office authorized to accept fees for other purposes pursuant to

Sec. 103.7(a) of this chapter.

* * * * *

15. Section 3.38 is amended by redesignating paragraphs (c) and (d)

as paragraphs (d) and (e), respectively; revising paragraph (b); and

adding a new paragraph (c) to read as follows:

Sec. 3.38 Appeals.

* * * * *

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

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

with the Board of Immigration Appeals within 15 calendar days after the

Immigration Judge has rendered an oral decision on the record in the

presence of the respondent/applicant or his or her attorney. 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 Board within 20 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 Appeal (Form

EOIR-26) may not be filed by any party who has waived appeal.

(c) A Notice of Appeal must be accompanied by the appropriate fee

or by an application for a waiver of fees. If the fee is not paid or

the application for a waiver of fees is not filed within the specified

time period, as indicated in paragraph (b) of this section, the appeal

will not be deemed properly filed and the decision of the Immigration

Judge shall be final to the same extent as though no appeal had been

taken.

* * * * *

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

SERVICE RECORDS

16. 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]

17. In Sec. 103.5, paragraph (a)(1)(i), is amended by revising the

phrase ``parts 210, 242, or 245a'' to read ``parts 3, 210, 242, and

245a''.

18. Section 103.7 is revised to read as follows:

Sec. 103.7 Fees.

(a) Remittances. Fees prescribed within the framework of 31 U.S.C.

483a shall be submitted with any formal application or petition

prescribed in this chapter and shall be in the amount prescribed by law

or regulation. Except for fees remitted directly to the Board pursuant

to the provisions of Sec. 3.8(a) of this chapter, any fee relating to

any Executive Office for Immigration Review proceeding shall be paid

to, and accepted by, any Service office authorized to accept fees.

Payment of any fee under this section does not constitute filing of the

document with the Board or with the Office of the Immigration Judge.

The service shall return to the payer at the time of payment, a receipt

for any fee paid. The Service shall also return to the payer any

documents which were submitted with the fee, relating to any

Immigration Judge proceeding. A charge of $5 will be imposed if a check

in payment of a fee is not honored by the Bank on which it is drawn. An

issued receipt for any such remittance shall not be binding if the

remittance is found uncollectible. Remittances must be drawn on a bank

or other institution located in the United States and be payable in

United States currency. Fees in the form of postage stamps shall not be

accepted. Remittances to the Service shall be made payable to the

``Immigration and Naturalization Service,'' except that in case of

applicants residing in the Virgin Islands of the United States, the

remittances shall be made payable to the ``Commissioner of Finance of

the Virgin Islands,'' and, in the case of applicants residing in Guam,

the remittances shall be made payable to the ``Treasurer, Guam.'' If

application to the Service is submitted from outside the United States,

remittance may be made by bank international money order or foreign

draft drawn on a financial institution in the United States and payable

to the Immigration and Naturalization Service in United States

currency. Remittances to the Board shall be made payable to the

``United States Department of Justice.'' [[Page 24580]]

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

19. 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.

20. In Sec. 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

21. 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.

22. In Sec. 242.21, paragraph (a) is revised to read as follows;

Sec. 242.21 Appeals.

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

decision of an Immigration Judge to the Board, except that no appeal

shall lie for an order of deportation or exclusion entered in absentia.

The procedures regarding the filing of a Notice of Appeal (Form EORI--

26), fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of

this chapter. An appeal shall be taken within 20 calendar days after

the mailing of a written decision, or 15 calendar days after the

mailing of a written decision, or 15 calendar days after the stating of

an oral decision, or the service of a summary decision on Form I-38 or

Form I-39. The reasons for the appeal shall be stated in the Notice of

Appeal, Form EOIR-26, in accordance with the provisions of Sec. 3.3(b)

of this chapter. Failure to do so may constitute a ground for dismissal

of the appeal by the Board pursuant to Sec. 3.1(d)(1-a) of this

chapter.

* * * * *

23. 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: April 25, 1995.

Janet Reno,

Attorney General.

[FR Doc. 95-11002 Filed 5-8-95; 8:45 am]

BILLING CODE 153-126-GF-M