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

SUMMARY: This final rule streamlines motions and appeals practice

before the Board of Immigration Appeals (``Board''), and establishes a

centralized procedure for filing notices of appeal, fees, fee waiver

requests, and briefs directly with the Board. The rule establishes time

and number limitations on motions to reconsider and on motions to

reopen and makes certain changes to appellate procedures, in great

measure, to reflect the statutory directives of section 545 of the

Immigration Act of 1990. The new 30-day period for filing appeals and

the provisions for filing appeals directly with the Board apply to

Immigration Judge decisions issued on or after the effective date of

the final rule.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel, Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041,

(703) 305-0470.

SUPPLEMENTARY INFORMATION: Under the final rule, parties will have the

opportunity to file only one motion to reopen and one motion to

reconsider during the administrative adjudication process. In most

instances, the motion to reopen must be filed not later than 90 days

after the date on which the final administrative decision was rendered

or on or before September 30, 1996, whichever is later. Generally, a

motion to reconsider must be filed not later than 30 days after the

date on which the final administrative decision was rendered on or

before July 31, 1996 whichever is later. The rule also provides that a

notice of appeal will be timely if filed within 30 days of the issuance

of an Immigration Judge's decision. The Department notes that the new

30-day period for filing appeals and the provisions for filing appeals

directly with the Board apply to Immigration Judge decisions issued on

or after the effective date of the final rule. Therefore, the old

regulation's 10-day period (13 days if the appeal is mailed) for filing

appeals and provisions for filing appeals with the Immigration Courts

apply to Immigration Judge decisions issued before the effective date

of this rule.

The rule outlines the required content of motions and notices of

appeal, and requires parties to file or remit directly with the Board

of Immigration Appeals (``Board''): (1) All motions to reopen and

motions to reconsider decisions of the Board pertaining to proceedings

before Immigration Judges; (2) all notices of appeals of decisions of

Immigration Judges; and (3) all relevant fees or fee waiver requests.

Furthermore, the rule addresses the definition of the term ``lawfully

admitted for permanent residence,'' the procedure for certifying a case

to the Board, and appeals of in absentia decisions. The Department

notes that the field sites of the Executive Office for Immigration

Review (``EOIR''), formerly referred to as the Offices of the

Immigration Judges, are now called Immigration Courts.

The Department of Justice has published a number of proposed rules

addressing both the motion practice and the appeals process before the

Board. Most recently, the Department published a proposed rule

regarding these procedures in May 1995 that incorporated and expanded

proposed rules published in May and June 1994. 60 FR 24573 (May 9,

1995); 59 FR 29386 (June 7, 1994); 59 FR 24977 (May 13, 1994).

In response to the above rulemakings, the Department received 71

comments. The comments addressed a number of issues, including the

definition of the term ``lawfully admitted for permanent residence,''

the time and number limitations on motions to reopen and reconsider,

the availability of an appeal where an order has been entered in

absentia (particularly in exclusion proceedings), the streamlined

appeals procedure, and the construction of briefing schedules for both

motions and appeals.

The Department has carefully considered and evaluated the issues

raised by the commenters and has modified the rule considerably. The

following sections summarize the comments, set forth the responses of

the Department of Justice, and explain the final provisions adopted. We

note that a number of technical corrections were made to the proposed

rule. These corrections include the addition of 8 U.S.C. 1282, 31

U.S.C. 9701 and 8 CFR part 2 to the authority citation for Part 208 and

the addition of 8 U.S.C. 1252a to the authority citation for Part 242.

(1) Definition of Lawful Permanent Resident--Section 1.1(p)

Comment: Some commenters objected that the definition of the term

``lawfully admitted for permanent residence'' in section 1.1(p)

provides that lawful permanent resident status terminates upon the

entry of a final administrative order of exclusion or deportation. They

argued that lawful permanent resident status is not deemed to be

terminated during the pendency of petitions for review, motions to

reopen and/or reconsider, and habeas corpus proceedings, citing cases

in the United States Courts of Appeal for the Ninth and Second

Circuits. Butros v. INS, 990 F.2d 1142 (9th Cir. 1993); Vargas v. INS,

938 F.2d 358 (2d Cir. 1991). In those cases, the courts held that under

the regulations regarding motions to reopen, lawful permanent resident

status could not be terminated prior to the alien's actual physical

departure from the United States.

Response and Disposition: After careful consideration, the

Department has decided to retain the regulation as previously proposed.

The finding that lawful permanent resident status terminates upon the

entry of a final administrative order of exclusion or deportation was

established by the Board in Matter of Lok, 18 I&N Dec. 101 (BIA 1981).

The Lok rule has been upheld by courts of appeals in at least four

circuits and provides finality in immigration proceedings. See

Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993); Katsis v. INS, 997 F.2d

1067 (3d Cir. 1993), cert denied, 114 S.Ct. 902 (1994); Variamparambil

v. INS, 831 F.2d 1362 (7th Cir. 1987); Rivera v. INS, 810 F.2d 540 (5th

Cir. 1987). In addition, the Ninth Circuit recently held that where

deportability is not contested, lawful permanent resident status for

purposes of an application for a waiver under section 212(c) of the

Immigration and Nationality Act (``Act'') terminates upon the entry of

an administratively final order of exclusion or deportation. Foroughi

v. INS, 60 F.3d 510 (9th Cir. 1995).

The decisions in Butros and Vargas were tied closely to the former

regulations regarding motions. In Butros, the court emphasized that the

former section 3.2 was written very broadly and concluded that since

the only expressed barrier to reopening or reconsideration contained in

the regulation was actual departure from the United States, the Board

could not by decision limit the right to reopening. However, the court

specifically provided that the ``Board could, no doubt, alter this

regulation'' to allow

[[Page 18901]]

further restrictions. 990 F.2d. at 1144. In Vargas, the Second Circuit

also found that the former regulations preserved an alien's right to

move for reopening until the occurrence of physical deportation. The

court reasoned that, although the Board's decision in Lok prevented

reopening by an alien who had not accrued the required seven years

prior to a final administrative order of deportation, the Second

Circuit would not allow the Board, through the denial of a motion, to

extend the Lok rationale to terminate an alien's previously existing

eligibility for section 212(c) relief. 938 F.2d at 361. This final rule

addresses the ambiguity of the regulatory language noted in the Second

and Ninth Circuit decisions by establishing clear limits on the ability

to file a motion to reopen and the concomitant effect on the alien's

status as a lawful permanent resident. The definition at section 1.1

will be applied nationwide, which will promote the goal of uniform

application of the immigration laws.

Sections 3.2(c)(1) and 3.23(b)(4) are further amended to clarify

that, notwithstanding the provisions of section 1.1(p) of this chapter,

if an alien accrues the seven years of lawful unrelinquished domicile

necessary for eligibility for a waiver under section 212(c) of the Act

prior to the entry of an administratively final order of exclusion or

deportation, he or she may file a motion to reopen for consideration or

further consideration of such an application. An alien may not accrue

time toward the seven years of lawful unrelinquished domicile required

for section 212(c) purposes after the entry of a final administrative

order of exclusion or deportation.

(2) Motions To Reopen--Sections 3.2 and 3.23

Comment: Commenters noted that motions to reopen can serve any of

three fundamental purposes: (i) to provide an opportunity to bring new

evidence to light; (ii) to allow parties to avail themselves of recent

changes in the law; and (iii) to provide an opportunity for an

applicant to seek additional relief that was not previously available.

Given those purposes, commenters objected to the rule's time and number

limitations on motions to reopen.

The May 1995 proposed rule expanded the filing period for motions

to reopen from 20 days to 90 days. Commenters stated that this period

was insufficient to fulfill the purposes of motions to reopen as set

forth above. Commenters advocated either the elimination of any defined

filing period for motions to reopen or further expansion of the filing

period. In support of this position, they cited to a study conducted by

the Attorney General in 1991 (``AG Study''), see summary at 68

INTERPRETER RELEASES No. 27 at 907 (July 22, 1991), which concluded

that there was no abuse of the motions process. From this conclusion,

commenters disputed the necessity for any reform of the motions

process. A number of commenters alternatively requested that a ``good

cause'' exception to the time and number limitations be added to the

new provisions concerning motions to reopen.

Some commenters requested clearer language in section 3.2(c)(4)

regarding the motions to reopen and motions to remand provision.

Particularly, commenters were concerned that the rule required, rather

than permitted, the Board to remand a motion to reopen to an

Immigration Judge or a Service Officer when an appeal had already been

filed. Commenters advocated a rule that would expressly state that the

Board had discretion to render a decision on a motion to reopen without

remanding the motion.

Response and Disposition: After careful consideration, the

Department has decided to retain both the time and the number

limitations applicable to motions to reopen. The provision instituting

motions reform is statutorily required. The Immigration Act of 1990,

Pub. L. No. 101-649, 104 stat. 4978 (1990), states that ``the Attorney

General shall issue regulations with respect to * * * the period of

time in which motions to reopen and to reconsider may be offered in

deportation proceedings, which regulations shall include a limitation

on the number of such motions that may be filed and a maximum time

period for the filing of such motions.'' Immigration Act of 1990 at

Sec. 545(d), 104 stat. at 5066. The Joint Explanatory Statement of the

Committee of Conference, H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess.

(1990) (``Conference Report''), explained this provision as follows:

``Unless the Attorney General finds reasonable evidence to the

contrary, the regulations should state that such motions be made within

20 days of the date of the final determination in the proceeding and

that such motions be limited to one motion to reopen and one motion to

reconsider.'' H.R. Conf. Rep. No. 955 at 133.

Some commenters argued that the Conference Report suggested that

the Attorney General has discretion to not promulgate the regulations

if she ``finds reasonable evidence to the contrary.'' However, the

Department of Justice believes that the statutory directive to

promulgate regulations limiting motions to reopen is mandatory. The

Attorney General is only given discretion to determine the number of

motions and the length of time to file such motions. It does not give

the Attorney General discretion to determine whether to promulgate a

rule putting limitations on motions.

Moreover, in a recent case, the Supreme Court noted that the

Immigration Act of 1990, which amended the Act, demonstrated a

congressional intent to ``expedite petitions for review and to redress

the related problem of successive and frivolous administrative appeals

and motions.'' Stone v. INS, 115 S.Ct. 1537, 1546 (1995). Justice

Kennedy, writing for the majority, stated:

Congress' intent in adopting and then amending the Act was to

expedite both the initiation and the completion of the judicial

review process. * * * [A] principal purpose of the 1990 amendments

to the Act was to expedite petitions for review and to redress the

related problem of successive and frivolous administrative appeals

and motions. In the Immigration Act of 1990, Congress * * * [f]irst

* * * directed the Attorney General to promulgate regulations

limiting the number of reconsideration and reopening motions that an

alien could file. Sec. 545(b). Second, it instructed the Attorney

General to promulgate regulations specifying the maximum time period

for the filing of those motions, hinting that a 20-day period would

be appropriate.

Stone v. INS, 115 S.Ct. at 1546 (emphasis supplied).

Although the AG Study concluded that there was not significant

abuse of the process, Congress has neither rescinded or amended its

mandate to limit the number and time frames of motions. Therefore, the

Attorney General's obligation to comply with Congress' statutory

directive is unaffected by the conclusions of the AG Study.

Prior to the final rulemaking, provisions concerning a time limit

for filing motions to reopen were published twice in proposed form. See

60 FR 24573 (May 9, 1995) and 59 FR 29386 (June 7, 1994). Consonant

with the Conference Report, the first proposed rule provided for a 20-

day time frame to file a motion. The Department received considerable

comment regarding the 1994 proposed rule. In response to the arguments

raised by the commenters, the May 1995 proposed rule provided for an

expanded 90-day time frame to file motions to reopen. The Department

received considerable comment in response to the May 1995 proposed

rule, with many commenters arguing that even the 90-day time frame was

[[Page 18902]]

inadequate for the reasons previously stated.

After carefully weighing all of the comments, the Department has

decided to retain the amount of time to file a motion to reopen at 90

days as provided in the May 1995 proposed rule. The 90-day time period

represents a considerable extension beyond the 20 days suggested in the

Conference Report. A time frame of 90 days for filing motions to reopen

will provide parties an opportunity to avail themselves of changed law,

facts, and circumstances. By setting a time limitation and retaining

the one motion limitation, the rule is consistent with section 545 of

the Immigration Act of 1990 and the directions of the Conference

Report. The 90-day time period also conforms to the period provided in

section 106(a) of the Act for filing a petition for review in federal

court from a final order of deportation (except, of course, for aliens

convicted of an aggravated felony who are limited to 30 days in which

to file a petition for review). Therefore, the 90-day period is likely

to promote consolidation of petitions for review of final orders of

deportation and motions, thereby increasing judicial efficiency.

The Department does not agree with the commenters' suggestions that

a ``good cause exception'' would be an appropriate procedural mechanism

for addressing exceptional cases that fall beyond this rule's time and

number limitations. Instead, section 3.2(a) of the rule provides a

mechanism that allows the Board to reopen or reconsider sua sponte and

provides a procedural vehicle for the consideration of cases with

exceptional circumstances.

The final rule corrects a technical error found in the May 1995

proposed rule regarding stays of deportation. In that proposed rule,

section 3.2(f) indicated that except where a motion is filed pursuant

to the provisions of section 3.23(b)(5), the filing of a motion to

reopen shall not stay the execution of any decision. This language is

identical to that found in the prior June 1994 proposed rule. However,

because of renumbering in the May 1995 proposed rule, section 3.2(f)

should have referenced section 3.23(b)(6), not section 3.23(b)(5) to

remain consistent. This oversight has been corrected although the

section numbering has again changed. The correct cross reference in the

final rule has become section 3.23(b)(4)(iii).

The Department has clarified the language of section 3.2(c)(4) by

replacing the word ``shall'' in the May 1995 proposed regulation with

the word ``may'' in the final rule. This language expressly recognizes

the Board's discretion to decide whether to treat a motion to reopen as

a motion to remand when it is filed at specified procedural junctures,

i.e., at the time of the filing of an appeal or during the pendency of

such an appeal but prior to a final Board decision. In such instances,

motions to remand are not subject to the time and number limitations on

motions to reopen and motions to reconsider as they occur before the

entry of a final administrative decision. For that reason, the final

rule drops the technically incorrect time and number limitation

language that appeared in the proposed rule. However, this provision

does not limit the Board's discretion to resolve a case without

remanding it.

In order to provide more consistency and uniformity in appellate

procedures, section 3.2(g)(3), regarding the motions briefing schedule,

has been changed to provide the opposing party 13 days from the date of

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

regardless of whether the motion is before the Board or the Service.

(3) Motions To Reconsider--Sections 3.2 and 3.23

Comment: A number of commenters objected to section 3.2(b) of the

May 1995 proposed rule, which allowed a petitioner to file only one

motion to reconsider within 30 days of the final administrative

decision, as unduly restrictive. The proposed 30-day filing period was

increased from the 20-day filing period of the June 1994 proposed rule.

However, commenters stated that even the 30-day time limit would work a

hardship on litigants, particularly pro se litigants. Furthermore, they

stated that the time limit might cut off meritorious claims. Some

commenters found the 30-day time limit adequate.

Some commenters argued that the AG Study supported the contention

that reform of the immigration motions process is unnecessary. They

also disputed that motion reform was mandated by the Immigration Act of

1990.

Response and Disposition: The final rule retains the proposed

rule's provisions regarding the time and number limitations on motions

to reconsider. The Department believes that these provisions afford

parties a sufficient opportunity to seek reexamination of certain

issues and also respond to the mandates of the Immigration Act of 1990

to impose time and number limitations on motions.

The purpose of a motion to reconsider a decision is to provide an

opportunity to reexamine the facts or to correct an error of law. The

time limitation ensures that such reexamination occurs before the facts

surrounding the decision become stale. The Department believes that the

30-day time frame is an appropriate time period to meet those goals.

Furthermore, it provides parties a sufficient amount of time to draft

and file the motion and is consistent with the 30-day time frame for

filing a notice of appeal. To make it clearer and more accessible to

the parties, section 3.23 has been reorganized.

(4) New Appeal Filing Procedures--Sections 3.3, 3.8, 3.38, 242.21 and

246.7

Comment: The vast majority of the commenters applauded the proposal

to streamline and centralize the appeal process. They were particularly

pleased that the notice of appeal and the fees/fee waiver requests

would be filed directly with the Board. However, commenters were

concerned that the requirement to provide a detailed statement of the

reasons for appeal in the notice of appeal essentially required an

appellant to argue his or her case prematurely. They suggested that

this requirement would be particularly burdensome to pro se and non-

English speaking appellants.

Commenters objected to the proposed time frames for filing notices

of appeal. Specifically, they stated that a period of 15 calendar days

from the issuance of an Immigration Judge's decision, where the

decision is rendered orally, and 20 calendar days from the mailing of

an Immigration Judge's decision, where a written decision is served by

mail, was too little time, particularly in light of the notice of

appeal's detailed statement requirement and delays in the mail service.

Commenters further argued that the appeals briefing schedule

provision, which accords non-detained aliens 30 days to file a brief

and detained aliens 14 days to file a brief, was inequitable and

fundamentally unfair because it treated two classes of appellants

differently. They also noted that the rule created a particular

hardship for detained appellants who, because of the fact of their

detention, have difficulty meeting filing deadlines. The commenters

were further concerned that the rule could be understood to require

parties to file briefs prior to receipt of the transcript.

Response and Disposition: The final rule retains the provisions

that streamline and centralize the appeals process. As outlined in the

proposed rule and republished in the final rule, the new appeals system

requires parties to file all notices of appeal of decisions of

Immigration Judges and all fee-related documents directly with the

Board. The

[[Page 18903]]

final rule has been amended to provide that a notice of appeal must be

filed within 30 calendar days after the mailing of an Immigration

Judge's written decision or within 30 days of the stating of an

Immigration Judge's oral decision. The time frame has been increased in

order to address concerns raised both by the circuit courts of appeals

and the commenters regarding the sufficiency of time to initiate the

appellate process. In keeping with the Department's goal of

streamlining the appeals process, the rule provides a uniform filing

process, whether the Immigration Judge's decision was rendered orally

or was written and served by mail.

The new process addresses concerns, identified by the Ninth

Circuit, about both the prior 10-day filing time period for appeals and

the requirement that parties remit the fee in one forum and file the

notice of appeal in another. See Gonzales-Julio v. INS, 34 F. 3d 820

(9th Cir. 1994); Vlaicu v. INS, 998 F. 2d 758 (9th Cir. 1993). This

final rule responds to those concerns by expanding the filing time for

appeal to 30 days and by requiring that the notice of appeal and the

fee be filed at the same place and time.

Additionally, the final rule makes uniform the briefing schedule

for both detained and non-detained appellants. Although the proposed

rule never anticipated requiring parties to submit a brief prior to

transcript availability in those cases which are transcribed, the final

rule contains clarifying language to that effect.

The Department has retained the requirement that parties

specifically identify their reasons for appeal on the notice of appeal.

The Board has repeatedly found this statement provides meaningful

information that aids the Board's review of the cases. Matter of

Valencia, 19 I&N Dec. 354 (BIA 1986); Matter of Holguin, 13 I&N Dec.

423 (BIA 1969). Furthermore, the statement requirement has been

consistently upheld by the circuit courts. Soriano v. INS, 45 F.3d 287

(8th Cir. 1995); Nazakat v. INS, 981 F.2d 1146 (10th Cir. 1992);

Toquero v. INS, 956 F.2d 193 (9th Cir. 1992); Lozada v. INS, 857 F.2d

10 (1st Cir. 1988); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir. 1987);

Townsend v. INS, 799 F.2d 179 (5th Cir. 1986).

A new paragraph ``(e)'' has been added to section 3.38 to inform

aliens that they are required to notify the Board within five working

days of any changes of address or telephone number and to inform the

aliens' representatives that changes in a representative's business

mailing address or telephone number also should be submitted to the

Board. The change of address and telephone number notification

requirement mirrors the reporting requirements in section 3.15 relating

to proceedings before Immigration Judges. Additionally, the Department

will issue a new Appeal Fee Waiver Request Form (EOIR-26A) in

conjunction with the enactment of this final rule. Parties unable to

pay the fee fixed for an appeal will be required to file this form with

their notice of appeal. The Department notes that this constitutes a

change from the Board's past practice of accepting in pauperis

affidavits and other informal requests to waive fees. The new Appeal

Fee Waiver Request (Form EOIR-26A) will provide a uniform mechanism for

requesting the Board to waive an appeal fee.

(5) In Absentia Hearings--Sections 3.1, 3.23 and 242.21

Comments: Commenters correctly asserted that section 242B(c) of the

Act regarding in absentia hearings applies only to deportation

proceedings. Therefore, they argued, a provision disallowing appeals

from orders of exclusion entered in absentia lacks statutory authority.

Commenters noted that the statute does not authorize in absentia

exclusion hearings and advocated the withdrawal of the provision that

provides for such hearings.

One commenter suggested that the in absentia hearing provisions in

section 242B restrict only motions to reopen and judicial review and do

not bar the timely filing of a notice of appeal on the merits of the

case where a respondent receives notification of the in absentia order

prior to expiration of the time to file an appeal. The commenter

advocated allowing direct appeals under such circumstances.

Commenters also objected to section 3.23(b)(4)(iii), formerly

section 3.23(b)(6), which specifies under what circumstances an order

of deportation entered in absentia may be rescinded. They noted that

the rule makes no provision for rescission of an order of exclusion

entered in absentia.

Response and Disposition: With regard to in absentia hearings under

section 242B(c) of the Act, the commenters are correct that the statute

only applies to deportation hearings and does not apply to in absentia

exclusion hearings and, further, that appeals from orders entered

following such exclusion hearings should be allowed. Therefore, the

provision in section 3.1(b)(1) of the proposed regulation that stated

that ``no appeal shall lie from an order of exclusion entered in

absentia'' has been removed. An appeal from an order of exclusion

entered in absentia is permissible but must be filed within the time

limit for appeals set by section 3.38(b).

Further, an alien may file a motion to reopen exclusion proceedings

to rescind an order of exclusion entered in absentia. Such a motion

must be supported by evidence that the alien had reasonable cause for

his failure to appear at the exclusion hearing. This provision is

consistent with the Board's decision in Matter of Haim, 19 I&N Dec. 641

(BIA 1988).

The rule retains the provision prohibiting an appeal to the Board

from an Immigration Judge's order of deportation entered in absentia.

Congress restricted review of deportation orders entered in absentia in

section 242B of the Act by providing that such orders may only be

rescinded by filing a motion to reopen with the Immigration Judge. See

section 242B(c)(1) of the Act; Matter of Gonzalez-Lopez, Interim

Decision #3198 (BIA 1993). Further, the Board has confirmed that

sections 3.1(b) and 3.3 allow an alien to appeal to the Board from an

Immigration Judge's denial of such a motion to reopen an in absentia

decision. Matter of Gonzales-Lopez at 4.

In addition to restricting the manner in which an in absentia order

of deportation may be rescinded, Congress delayed eligibility for most

forms of relief from deportation for an alien against whom a final

order of deportation is entered in absentia. See section 242B(e) of the

Act. Specifically, where the alien fails to demonstrate improper notice

or exceptional circumstances for failing to appear, the alien must wait

until five years after the final order of deportation to apply for

relief such as voluntary departure, suspension of deportation, or

adjustment of status. Accordingly, the Department has determined that a

bar against direct appeals from an in absentia deportation order of an

Immigration Judge to the Board is consistent with the restrictive

action Congress has taken towards such in absentia orders.

The Department considered the commenters' request for an appeal to

the Board on the merits of a deportation case in which an in absentia

order has been entered. However, we note that there exists the

opportunity for review of such an order in the federal courts. Section

106 of the Act provides for judicial review of final orders of

deportation including those entered in absentia. Specifically, section

242(B)(c)(4) allows for judicial review of an order entered in absentia

under

[[Page 18904]]

section 242B, regarding the validity of the notice provided to the

alien, the reasons for the alien's failure to appear, and the question

of whether the Service demonstrated deportability by clear, convincing,

and unequivocal evidence. Further, section 106(a)(5) of the Act allows

for the direct de novo review of a final administrative order of

deportation in federal district court, including one entered in

absentia, where the alien makes a non-frivolous claim to be a national

of the United States. In sum, given Congress' restrictive stance in

section 242B of the Act regarding review of orders of deportation

entered in absentia and in light of the fact that avenues still exist

for review in federal court of such orders, the Department has retained

the bar on direct appeals to the Board from an Immigration Judge's

order of deportation entered in abstentia.

This regulation has been drafted and reviewed in accordance with

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

determined that this rule is not a significant regulatory action under

Executive Order 12866, section 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, Immigration.

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

record keeping requirements, Surety bonds.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and record keeping requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and record keeping requirements.

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 246

Administrative practice and procedure, Aliens, Immigration.

Accordingly, Chapter I of title 8 of the Code of Federal

Regulations is 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 continues 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.

(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. No appeal shall 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

certify 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 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 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. (1) 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 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 paragraph (b)(2) of this section.

(2) A motion to reconsider a decision must be filed with the Board

within 30

[[Page 18905]]

days after the mailing of the Board decision or on or before July 31,

1996, 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.

(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

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, and notwithstanding the provisions in Sec. 1.1(p) of this

chapter, 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.

(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 on or before

September 30, 1996, 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)(4)(iii);

(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 could not have been discovered or

presented at the former hearing; or

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

such agreement, the parties may contest the issues in a reopened

proceeding.

(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 while an appeal is pending before the Board, may 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 may be consolidated with, and considered by the Board in

connection with, the appeal to the Board.

(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 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)(4)(iii), 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) English language, entry of appearance,

and proof of service requirements. 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) Distribution of motion papers. (i) 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. Such

motion 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.

(ii) 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.

(iii) If the motion 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.

(3) 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)(2)(i) 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)(2)(ii) of this section, the opposing party shall have 13 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

[[Page 18906]]

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 Immigration Court 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 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 those

cases that are transcribed, the briefing schedule shall be set by the

Board after the transcript is available. An appellant shall be provided

30 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. The alien shall be provided 30 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 alien 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 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:

[[Page 18907]]

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 has 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)(4)(ii).

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), a case

is 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 Immigration Court 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 the Immigration

Court 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 Immigration Court 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 the Board declined

to accept the case.

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 directly 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, an Appeal Fee Waiver Request, (Form

EOIR-26A). If the request does not establish the inability to pay the

required fee, the appeal or motion will not be deemed properly filed.

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

follows:

[[Page 18908]]

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 part 3 of this chapter. 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 filed with the Immigration Court 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.

(2) 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)(4)(iii) of this

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

motion and the adjudication of any properly filed administrative

appeal.

(3) A motion to reconsider must be filed on or before July 31,

1996, on which the decision for which reconsideration is being sought

was rendered, or 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) 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. A motion to reopen will not be granted for the purpose of

providing the alien an opportunity to apply for any form of

discretionary relief 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 apply 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, and notwithstanding the provisions in

1.1(p) of this chapter, 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.

(i) Except as provided in paragraph (b)(4)(ii) 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 after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened, or on or before

September 30, 1996, whichever is later.

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

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

pursuant to the provisions of paragraph (b)(4)(iii) 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 conclusion 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.

(iii) A motion to reopen deportation proceedings to rescind an

order of deportation entered in absentia must be filed:

(A) 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

(B) 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.

(iv) A motion to reopen exclusion hearings on the basis that the

Immigration Judge improperly entered an order of exclusion in absentia

must be supported by evidence that the alien had reasonable cause for

his failure to appear.

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/application.

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 Sec. 3.8(a)(c), 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 revising paragraph (b);

redesignating paragraphs (c) and (d) as paragraphs (f) and (g),

respectively; and adding new paragraphs (c),(d) and (e) 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 30 calendar days after the

stating of an Immigration Judge's oral decision or the mailing of an

Immigration Judge's written decision. 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) The date of filing of the Notice of Appeal (Form EOIR-26) shall

be the date the Notice is received by the Board.

(d) A Notice of Appeal (Form EOIR-26) must be accompanied by the

appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If

the fee is not paid or the Appeal Fee Waiver

[[Page 18909]]

Request (Form EOIR-26A) is not filed within the specified time period

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.

(e) Within five working days of any change of address, an alien

must provide written notice of the change of address on Form EOIR-33 to

the Board. Where a party is represented, the representative should also

provide to the Board written notice of any change in the

representative's business mailing address.

* * * * *

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'' in the first sentence to read

``parts 3, 210, 242 and 245a,''.

18. In Sec. 103.7, paragraph (a) 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 Immigration Court. 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,

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.''

* * * * *

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, 1282 and 1283; 31 U.S.C. 9701; and 8 CFR part 2.

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 236--EXCLUSION OF ALIENS

21. The authority citation for part 236 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.

22. Section 236.7 is revised to read as follows:

Sec. 236.7 Appeals.

Except as limited by section 236 of the Act, an appeal from a

decision of an Immigration Judge under this part may be taken by either

party pursuant to Sec. 3.38 of this chapter.

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

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

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

follows:

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

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

Sec. 242.19 [Amended]

24. In Sec. 242.19, the form number ``I-290A'' is removed each time

it appears and, in its place, the form number ``EOIR-26'' is added in

paragraphs (6) and (c).

25. In Sec. 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, except that no appeal

shall lie from an order of deportation 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 shall be filed within 30 calendar days after the

mailing of a written decision, the stating of an oral decision, or the

service of a summary decision. The filing date is defined as the date

of receipt of the Notice of Appeal by the Board of Immigration Appeals.

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.

* * * * *

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

adding a sentence at the end of the section, 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)(4)(ii)

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.

PART 246--RESCISSION OF ADJUSTMENT OF STATUS

27. The authority citation for part 246 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259.

[[Page 18910]]

28. Section 246.7 is revised to read as follows:

Sec. 246.7 Appeals.

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

decision of an Immigration Judge under this part to the Board of

Immigration Appeals except that no appeal shall lie from an order of

deportation entered in absentia. An appeal shall be taken within 30

days after the mailing of a written decision or the stating of an oral

decision. The reasons for the appeal shall be specifically identified

in the Notice of Appeal (Form EOIR 26); failure to do so may constitute

a ground for dismissal of the appeal by the Board.

Dated: April 16, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-10157 Filed 4-26-96; 8:45 am]

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