Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings [61 FR 18900] [FR 17-96]

DOCUMENT NUMBER: FR 17 - 96

FEDERAL REGISTER CITE: 61 FR 18900

DATE PUBLISHED: April 29, 1996

BILLING CODE 4410-01-M

DEPARTMENT OF JUSTICE

8 CFR Parts 1, 3, 103, 208, 212, 242, and 246

[EOIR No. 102F; AG Order No. 2020-96]

RIN 1125-AA01

Executive Office for Immigration Review; Motions

and Appeals in Immigration Proceedings

AGENCY: Department of Justice.

ACTION: Final rule.

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 render ed 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. 1 252a 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 Nint h 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 fur ther 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 termina te 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.