In re G-D-
| Decision Date | 23 November 1999 |
| Docket Number | Interim Decision No. 3418. |
| Citation | 22 I&N Dec. 1132 |
| Parties | In re G-D-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has filed a motion to reconsider our decision to dismiss his appeal. The motion is untimely, and we decline to consider the motion sua sponte. The motion will therefore be denied.
On January 5, 1996, an Immigration Judge denied the respondent's application for asylum and withholding of deportation and granted him voluntary departure. The respondent timely appealed that decision. On September 26, 1997, we dismissed the respondent's appeal.
On April 30, 1998, the respondent filed the instant motion to reconsider. In his motion, the respondent argues that our decision in Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), warrants a reconsideration of our prior decision. The respondent asserts that our analysis in Matter of O-Z- & I-Z- favors his asylum claim, implying that our analysis in that case would lead to a different outcome in his own. The respondent also cites Kossov v. INS, 132 F.3d 405 (7th Cir. 1998), issued subsequent to our decision in his case, and Congress' renewal of the "Lautenberg Amendment," see Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990, Pub. L. No. 101-167, § 599D, 103 Stat. 1195, 1261-63 (1989), as amended, in support of his request for reconsideration.1 Relying on these developments in the law, the respondent asks that we reconsider his case sua sponte, pursuant to 8 C.F.R. § 3.2(a) (1999).
In response, the Immigration and Naturalization Service opposes the motion as untimely. The Service also objects to the respondent's request for sua sponte reconsideration, arguing that the respondent should not be permitted to circumvent the regulatory limits on motions by soliciting the Board's authority to act sua sponte.
The untimeliness of the respondent's motion is not at issue. A motion to reconsider must be filed within 30 days after the mailing of the Board's decision or on or before July 31, 1996, whichever is later. 8 C.F.R. § 3.2(b)(2). The respondent's motion to reconsider was due on or before October 27, 1997. The respondent's motion was not filed, however, until April 30, 1998, more than 6 months after that date. The respondent's motion to reconsider is therefore untimely and precluded by regulation.
Cognizant of the motion's untimeliness, the respondent asks that we reconsider his case on our own motion. The issue is whether, in this instance, the exercise of our discretion is warranted. We do not find that it is.
The Board possesses discretion to reopen or reconsider cases sua sponte. 8 C.F.R. § 3.2(a); see also Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations. Matter of J-J-, supra; see also Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900, 18,902 (1996) (). It would be inappropriate to expansively employ this authority in a manner that contravened the intentions of Congress or failed to give effect to the comprehensive regulatory structure in which it exists.
The respondent is seeking reconsideration outside the time allowed for this type of motion. Motions to reconsider, as well as motions to reopen, are restricted in time and number. See 8 C.F.R. §§ 3.2(b), (c); see also 8 C.F.R. § 3.23(b) (1999). These limitations are creatures of regulation, crafted by the Attorney General at the behest of Congress. See Immigration Act of 1990, Pub. L. No. 101-649, § 545(d), 104 Stat. 4978, 5066. They are specifically designed to expedite judicial review and to bring finality to immigration proceedings.2 See id.; see also Stone v. INS, 514 U.S. 386 (1995). The import of those limitations is evident in Congress' decision to incorporate the regulatory limits directly into the statute for aliens in removal proceedings. See sections 240(c)(5), (6) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229a(c)(5), (6) (Supp. II 1996); see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 304, 110 Stat. 3009-546, 3009-593. The motions rules respond directly to the legislative interest in setting meaningful and effective limits on motions and ultimately in achieving finality in immigration case adjudications. Accordingly, we may not casually set those limits aside or otherwise undermine them through the exercise of our independent regulatory power to reopen or reconsider cases.
We must be persuaded that the respondent's situation is truly exceptional before we will intervene. In Matter of J-J-, supra, we did not explore or define what situations we would consider "exceptional" in nature. Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998), and this decision provide examples of the circumstances in which we deem it appropriate or inappropriate to exercise our sua sponte authority to reopen or reconsider.
Our decision in Matter of X-G-W-, supra, illustrates the type of situation in which sua sponte action by the Board is appropriate. In that case we examined the impact of a recent amendment to the definition of the term "refugee" set forth in section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (Supp. II 1996). The statutory revision was so profound that the respondent in Matter of X-G-W- clearly acquired eligibility for relief by virtue of that particular change in the law, a change amounting to a reversal in the principles of asylum law applicable to coercive population control practices in China. Cf. Asani v. INS, 154 F.3d 719 (7th Cir. 1998) ().
We do not find a comparable situation here. The Board's decision in Matter of O-Z- & I-Z-, supra, does not reflect a fundamental change in the principles of the law of asylum. Matter of O-Z- & I-Z- involved the application of existing asylum principles to a specific set of facts, and we do not consider that decision to be a fundamental change in the law. Insofar as it might be construed as a change, that decision represents at most an incremental development in the law, not a departure from established principles. While Matter of O-Z- & I-Z- potentially enhances the stature of the respondent's claim, it does not announce a fundamental change.
For the respondent to prevail, we must be persuaded that a change in law is sufficiently compelling that the extraordinary intervention of our sua sponte authority is warranted. New case law regularly emerges from this Board and the federal courts. Much of that case law builds on the past, seldom reflecting dramatic departures from the legal principles that are routinely applied to resolve the appeals that come before us. If each incremental development in the case law were considered to be a change warranting reopening on the Board's own motion, the implications for the motions regulations and for the finality of proceedings would be profound. In our judgment, granting reconsideration or reopening in response to such "changes" would substantially erode the regulatory time and number limitations and undermine the goal of finality that we understand Congress sought to achieve. See 61 Fed. Reg. at 18,902 ().
Furthermore, unlike Matter of X-G-W-, supra, the respondent's case does not manifestly turn on the cited change in the law. In Matter of X-G-W-, the statutory amendment was so significant and its impact so unambiguous that we found it warranted a readjudication of the appeal. In contrast, the impact of our decision in Matter of O-Z- & I-Z- on the respondent's case is less obvious, and the change in the law, if any, far more subtle. We would be required to completely readjudicate the respondent's claim in light of this new precedent before we could discern whether it would have any impact on the outcome of his claim. Engaging in such a readjudication would be tantamount to granting reconsideration, with its concomitant expenditure of adjudicatory resources, even if we were ultimately to determine that the new precedent did not alter the outcome.3
Moreover, the respondent here was granted voluntary departure, with an alternate order of deportation, at the time we dismissed his appeal from the Immigration Judge's denial of asylum. His options at that point were to timely seek reopening or reconsideration if circumstances allowed, to seek...
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