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OI 3.1 Board of Immigration Appeals.
Record of processing.
All appeals and certifications from decisions in adjudications cases other than from overseas offices shall be forwarded to the Board through the appropriate regional office. District Directors in districts 33, 35, and 37 shall forward all such cases to the Board through the Director, Foreign Operations, Central Office. (TM 1/89)
In order to properly present the Service's case on appeals, a general attorney at the district level shall prepare a brief to be submitted to the BIA. The brief from an overseas office will be prepared by General Counsel appellate review, Central Office. A copy of the brief must be served on the appellant or his/her representative. (TM 1/89)
When an appeal is patently frivolous, the general attorney's brief shall request that the Board of Immigration Appeals summarily dismiss the appeal. When an appeal is received on an adjudications case the file shall be forwarded to the general attorney section for preparation of the Service's brief. (TM 9/85)
The adjudicating officer shall review the case prior to forwarding. If required, a short memorandum in rebuttal to any brief, should be prepared for the Service attorney's guidance. (TM 9/85)
The record of proceeding, with a single copy of Form I290a and all memoranda, briefs, and requests for oral argument, placed on the top of the record, shall be fastened by an Acco fastener to the right inside of the folder. One copy of the decision of the special inquiry officer, regional commissioner, or district director, or one copy of the regional commissioner's motion, with the stamped or typed notation "BIA copy" on the bottom of the face page of such order, shall be stapled to the left inside o
f the record of proceeding folder. The folder tab shall bear the appropriate file number, followed in parentheses by the alphabetical location code of the Files Control office having control of the file. The outside front of the record of proceeding folder shall be stamped "Record of Proceeding." In every case involving an alien detained by or for the Service or when an alien's detention is imminent, a striker, conspicuously marked, showing his detention status shall be firmly stapled to the outside of t
he folder being forwarded. Under no circumstances shall a record of proceeding folder be marked "Top Priority."
When a trial attorney files an appeal or a crossappeal in a deportation proceeding, the original appeal Form I290A and accompanying brief, if any, shall be delivered to the special inquiry officer and become part of the record of proceeding; the duplicates shall be served on the opposing party, and the triplicate copies retained in the subject's file. Similar action shall be taken where a case has been certified to the BIA and a brief has been filed by either party.
The foregoing procedure shall be followed in any other case in which an appeal is taken except that the appeal and brief preparation in behalf of the Service shall be the responsibility of the district director.
In all cases submitted to the Board, the entire record of proceeding with the Board's decision will be returned by the Board directly to the appropriate field office. If suspension of deportation has been approved or section 212(d)(3) has been authorized with respect to paragraph (9), (10), or (28) of section 212(a), two copies of the Board of Immigration Appeals order shall be forwarded to the regional office.
Notification of the denial of an application or petition shall be made on Form I292. The duplicate Form I292 shall be signed by the district director and retained in the file. In a deportation case, the notification shall be made on Form I295. If the applicant or petitioner resides abroad, the notice shall be transmitted by air mail.
A separate order containing a summary of the facts, findings, and conclusions shall not be prepared when adjudicating an application or petition unless specifically required by an OI. If, however, a difficult question of law or fact is presented, a memorandum reflecting the basis for the conclusion shall be included in the file.
When a regional Commissioner, in the exercise of his enforcement functions, certifies a case to the Board because he disagrees with the special inquiry officer's decision, the certification order (which shall be typed at the end of the special inquiry officer's decision) shall contain a statement setting forth the factual or legal conclusions to which the regional commissioner objects together with the citation of pertinent authority in support of his views. Notice of the certification and the reasons
therefor shall be promptly served on the respondent and the trial attorney.
The authority to certify a case pursuant to 8 CFR 3.7 shall not be exercised below the level of a district director.
When the Board directs certification, the alien shall be informed of the certification in the following language, stated at the hearing if the decision is oral and placed on the typed copy of the special inquiry officer's decision directly above his signature: "IT IS FURTHER ORDERED that this case be certified to the Board of Immigration Appeals for final decision by that Board."
A copy of the current roster of recognized organizations and their accredited representatives is maintained by the Associate Commissioner, Information Systems, (Office of Policy Directives and Instructions), Central Office. Whenever the roster is furnished to the Service in accordance with
8 CFR 292.2(e)
, the Associate Commissioner, Management shall make distribution of the roster to all district offices, stateside and foreign. (TM 10/84)
When a record of proceeding is transmitted to the Board through the regional office in the first three classes of cases enumerated in the first subparagraph of paragraph (a) of this OI, it shall be accompanied by a memorandum requesting the section desired, explaining the importance of the issues involved, and have attached thereto a copy of the record transcript, including the decision and accompanying legal memoranda or briefs, if any, for use by the appellate trial attorneys. Whenever deemed helpful
, similar action shall be taken in the fourth specified class. Any other material which may be helpful to the appellate trialattorneys shall be sent directly to them. Every field request for Service representation before the Board is subject to approval by the regional commissioner, and such an approved request shall be transmitted directly to the appellate trial attorneys at the Board in an envelope addressed as prescribed in the first subparagraph of paragraph (a) of this OI, with a copy to the General
All BIA decisions returned to the district office and those referred to the district director shall be reviewed to determine whether there is any basis for submitting a motion to reconsider or reopen to the Board. If the district director believes that such basis exists in a particular decision, he shall refer it to the regional commissioner who will determine whether to request the General Counsel to file an appropriate motion with the Board after consultation with the Central Office official having j
urisdiction over the area of Service activity involved.
The district director shall also refer to the regional commissioner any BIA decision which the Board has not designated for publication but which the district director believes sets forth policies, interpretations, or procedures which should be published for the guidance of persons and their authorized representatives who deal with the Service. The regional commissioner, if he concurs with the district director, shall transmit a copy of the decision to the General Counsel for determination whether the
Board should be requested to designate the decision for publication after consultation with the Central Office official having jurisdiction over the area of Service activity involved.
Reopening or reconsideration.
Order of deportation outstanding.
When a motion to reopen or reconsider is addressed to the Board and the alien is under an order of deportation, a brief memorandum shall be prepared by the district director indicating whether deportation will be stayed while the motion is being considered by the Board or whether it is intended to proceed with deportation notwithstanding the pendency of the motion. The memorandum shall also contain information regarding any arrangements made and the date set to effect deportation and the status of any priv
ate bill action or adjustment of status application.
The memorandum shall be addressed to the chairman of the Board and shall be forwarded together with the record of proceeding and the motion. If the district director believes the motion should be denied or that factors not apparent from the record should be brought to the attention of the Board, a separate memorandum expressing his views should be submitted to the Board with the record and a copy thereof served on the moving party.
When the motion to reopen is in the form of an application for adjustment of status under
of the Act, the district director shall prepare a forwarding memorandum to the Board, which will so indicate.
Record of proceeding in court custody.
When a copy of the motion to reopen or reconsider together with the record of proceeding are to be transmitted to the Board, and the record is in the custody of a Federal court for the District of Columbia, the motion, together with the proof of service, shall be promptly transmitted to the General Counsel, attention Appellate Trial Attorneys at the Board, with a memorandum explaining the whereabouts of the record of proceeding.
Briefs and motions filed in connection with SIO decisions.
The following procedures shall be observed at the official stations of special inquiry officers and special inquiry clerks:
When a brief is filed by either party in connection with an appeal from the decision of the special inquiry officer in the case of a nondetained alien, a copy shall be served upon the opposing party with written advice that a brief or memorandum in reply may be submitted to the person who served the special inquiry officer's decision within 5 days after receipt of the appellant's brief. One reasonable extension for submission of a reply brief may be granted by the special inquiry officer. Proof of ser
vice of notice and briefs shall be made part of the Record of proceeding. Form I329 may be used for the expeditious handling of appeals, briefs or motions.
There shall be parity of treatment between the alien or his counsel and the trial attorney. Neither one shall be permitted to procrastinate.
In determining the reasonableness of an application by the trial attorney for an extension when oral argument has been requested, consideration should be given to his obligation to consult with the regional counsel concerning the contents of his brief. During the period determined to be reasonable for the parties to prepare and submit briefs, the record and exhibits shall remain available at the field office to both parties. Whenever special inquiry unit personnel assist deportation personnel by proces
sing a Record of Proceeding in connection with motions to reopen or reconsider addressed to the BLA following a final order, 8 CFR 3.8(b) and (c) shall be administered harmoniously so that the Service will have the same ten-day period under paragraph(b) to file a brief in opposition as the alien has under paragraph (c). When the motion is made either by a Service officer at a field office or by the alien, the Record of Proceeding shall be retained at the Service office pending receipt of an opposing brief
within the ten-day period. If a deportation order is outstanding, the record shall not be forwarded until the district director's memorandum required by OI 3.1(g)(1) is attached.