(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 § 545(d), 104 stat. at 5066. The Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 955, 101st Cong., 2d Ses s. (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 deter mine 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 mo tions that an alien could file. § 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 fram e 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 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 lim itation, 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 fo r 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 sec tion 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 migh t 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 ap peal. To make it clearer and more accessible to the parties, section 3.23 has been reorganized.