In re Cruz-Garcia, Interim Decision No. 3420.
| Citation | 22 I&N Dec. 1155 |
| Decision Date | 30 November 1999 |
| Docket Number | Interim Decision No. 3420.,File A29 269 102. |
| Parties | In re Ydalia CRUZ-GARCIA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In an order dated October 27, 1997, an Immigration Judge denied the respondent's motion to reopen deportation proceedings, which were conducted in absentia in 1991 pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1988). The respondent filed a timely appeal from the Immigration Judge's order, supported by an appellate brief. The Immigration and Naturalization Service did not file a brief in opposition to the appeal. For the following reasons, we will dismiss the respondent's appeal.
The record reveals that on September 13, 1990, the respondent, a native and citizen of the Dominican Republic, entered the United States without inspection. On September 15, 1990, the respondent was personally served with an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S). On December 3, 1990, the Immigration Court sent notice of a hearing to the respondent's address of record, informing her of a deportation hearing scheduled for April 9, 1991. When the respondent failed to appear for her scheduled hearing, the Immigration Judge found her deportable as charged and ordered that she be deported from the United States pursuant to section 242(b) of the Act.1 On July 16, 1997, the respondent filed a motion to reopen proceedings, claiming that she was eligible to adjust her status to that of a permanent resident owing to an approved visa petition filed on her behalf by her United States citizen husband. The respondent did not provide a reason for her absence from her 1991 deportation hearing.
The Immigration Judge denied the respondent's motion to reopen as untimely filed on October 27, 1997. The Immigration Judge found that the respondent failed to demonstrate that she did not receive notice of the hearing, that her failure to appear was because of "exceptional circumstances," or that she was in federal or state custody at the time of the hearing. See 8 C.F.R. § 3.23(b)(4)(iii) (1998).
The respondent contends in her Notice of Appeal that she missed her scheduled hearing because her former attorney had been "suspended by the Bar" at the time he appeared on her behalf and that he did not effectively represent her. The respondent's appellate brief offers no support for this contention and does not further explain how her attorney's actions may have caused her to miss her hearing. Instead, the respondent's appellate brief asserts that these proceedings should be reopened to allow the respondent to adjust her status based on the approved visa petition filed on her behalf by her United States citizen husband.
The issues in this case are: (1) whether the regulatory language at 8 C.F.R. § 3.23(b)(4)(iii) contains time or numerical limitations on an alien who wishes to file a motion to reopen to vacate an outstanding order of deportation entered in absentia pursuant to section 242(b) of the Act; (2) whether the "exceptional circumstances" standard set forth at 8 C.F.R. § 3.23(b)(4)(iii)(A)(1) is properly applied to motions seeking to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act in order to vacate the underlying order; and (3) whether proceedings should be reopened to allow the respondent to pursue her request for new, previously unavailable relief in the form of adjustment of status.
We find that the regulatory language at 8 C.F.R. § 3.23(b)(4)(iii) imposes no time or numerical limitations on an alien who wishes to file a motion to reopen to vacate an underlying order of deportation entered pursuant to section 242(b) of the Act. We recently reached the same result in the context of exclusion proceedings. See Matter of N-B-, 22 I&N Dec. 590 (BIA 1999).
As we observed in Matter of N-B-, supra, federal regulations govern time and numerical limitations on motions to reopen removal, deportation, and exclusion proceedings. The regulation at 8 C.F.R. § 3.23(b)(1) provides generally that "[a] motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later." See also 8 C.F.R. § 3.2(c)(2) (1999) (). Furthermore, 8 C.F.R. § 3.23(b)(1) states that, with certain exceptions, "a party may file only one motion to reconsider and one motion to reopen proceedings." One such exception exists for a motion to reopen in the asylum context based on changed country conditions. 8 C.F.R. § 3.23(b)(4)(i); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). Additionally, no time and numerical limitations apply to a motion to reopen that is agreed upon by all parties and jointly filed. 8 C.F.R. § 3.23(b)(4)(iv).
The regulation at 8 C.F.R. § 3.23(b)(4)(iii)(A) contains a different time frame for motions seeking to reopen deportation proceedings that were conducted in absentia. See 8 C.F.R. § 3.23(b)(4)(iii)(D). The regulation first permits an alien to file such a motion to reopen within 180 days of the in absentia deportation order if the alien demonstrates "exceptional circumstances" for failing to appear. 8 C.F.R. § 3.23(b)(4)(iii)(A)(1). The regulation also allows an alien to file a motion at any time if the alien demonstrates that proper notice was not given or that he or she was in federal or state custody and the failure to appear was not the alien's fault. 8 C.F.R. § 3.23(b)(4)(iii)(A)(2). In Matter of Mancera, 22 I&N Dec. 79 (BIA 1998), we discussed this regulation and found that the alien, who had been ordered deported in absentia pursuant to section 242(b) of the Act, had proved a lack of proper notice. We therefore found that the alien's motion to reopen was excepted from the regulatory time limitations on motions. Id.
Guided in part by our holding in Matter of N-B-, supra, we find in the instant case that the applicable regulations contain a gap that does not provide an explicit time and numerical exception for motions to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act.2 We find that the regulation at 8 C.F.R. § 3.23(b)(4)(iii)(A)(1) applies only to deportation proceedings conducted in absentia pursuant to section 242B of the Act, 8 U.S.C. § 1252b (Supp. II 1990). As previously noted, Congress added section 242B to the Act via the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ("1990 Act"). The regulation at 8 C.F.R. § 3.23(b)(4)(iii)(A)(1) mirrors the statutory language of section 242B(c)(3)(A) of the Act, which sets a 180-day time limitation on certain motions to reopen deportation proceedings conducted in absentia. The statutory language found in section 242(b) of the Act contains no time or numerical limitation for motions to reopen proceedings conducted in absentia. Additionally, the regulation at 8 C.F.R. § 3.23(b)(4)(iii)(A)(1) applies the "exceptional circumstances" standard for reopening found in section 242B(c)(3)(A) of the Act instead of the "reasonable cause" standard in section 242(b) of the Act.
It appears that the drafters of 8 C.F.R. § 3.23 focused on updating the regulation to conform to the applicable changes in the law made by the 1990 Act, which added section 242B to the Act. See Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900, 18,903 (1996). The Supplementary Information introducing the amendments to the regulation discusses, among other legal issues, motions to reopen and direct appeals in the context of deportation proceedings under section 242B of the Act, as well as exclusion proceedings under section 236 of the Act, 8 U.S.C. § 1226 (1994). However, the Supplementary Information does not implicitly or explicitly discuss motions to reopen proceedings conducted in absentia pursuant to section 242(b) of the Act.
Construing the existing regulatory language, we find that the motions regulations set no time or numerical limitations on aliens seeking to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act for the purpose of vacating the underlying order of deportation.3 See Matter of N-B-, supra, at 592. We reaffirm our holding in Matter of Mancera, supra, insofar as we held that a motion to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act that demonstrates a lack of notice is excepted from the regulatory time limitations on motions to reopen. Furthermore, we find that when aliens are seeking to reopen deportation proceedings conducted...
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