In re N-B-, Interim Decision No. 3381.
| Citation | 22 I&N Dec. 590 |
| Decision Date | 24 March 1999 |
| Docket Number | Interim Decision No. 3381. |
| Parties | In re N-B-, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
In an order dated September 18, 1997, an Immigration Judge denied the applicant's motion to reopen exclusion proceedings, which had been conducted in absentia. The applicant has filed a timely appeal from the Immigration Judge's order, supported by an appellate brief. The Immigration and Naturalization Service has not filed a brief in opposition to the appeal. For the following reasons, we will sustain the applicant's appeal and remand the record to the Immigration Judge for further proceedings consistent with this opinion.
The record reveals that on October 17, 1995, the applicant, a native and citizen of Morocco, arrived in the United States without possessing a valid, unexpired immigrant visa and was served with a Notice to Applicant for Admission Deferred for Hearing Before Immigration Judge (Form I-122). The applicant was subsequently given proper written notice of an exclusion hearing scheduled for December 15, 1995. When the applicant failed to appear for her scheduled hearing, the Immigration Judge found her inadmissible and ordered that she be excluded and deported from the United States. On August 19, 1997, the applicant filed a motion to reopen proceedings, with supporting documentation, alleging that her severe illness, which necessitated surgery, prevented her attendance at the scheduled hearing.
The Immigration Judge denied the applicant's motion to reopen after determining that it was not filed in a timely manner. The Immigration Judge concluded that the applicant's motion did not fall into any of the exceptions to the regulatory directive that only one motion to reopen may be filed and that it must be filed within 90 days of the final administrative order or on or before September 30, 1996, whichever is later. See 8 C.F.R. § 3.23(b)(1) (1998).
We find that the applicant's motion to reopen exclusion proceedings in this case was timely filed. The statute governing exclusion proceedings is silent as to whether an order of exclusion may be entered in absentia. See section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (1994).1 Nonetheless, we have held that just as an Immigration Judge may conduct deportation proceedings in absentia, an Immigration Judge has the authority to conduct exclusion proceedings in absentia. See Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997); Matter of Nafi, 19 I&N Dec. 430, 431 (BIA 1987). Where an alien later establishes that he had reasonable cause for his failure to appear, the Immigration Judge's order may be vacated and proceedings may be reopened, or the alien may appeal the adverse decision directly to the Board. Matter of Ruiz, 20 I&N Dec. 91, 92-93 (BIA 1989); Matter of Haim, 19 I&N Dec. 641, 642-43 (BIA 1988); Matter of Nafi, supra, at 432; cf. De Morales v. INS, 116 F.3d 145 (5th Cir. 1997).
Federal regulations govern time and numerical limitations on motions to reopen removal, deportation, and exclusion proceedings. As the Immigration Judge correctly recognized, 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) (1998) (). 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 example exists for a motion to reopen in the asylum context based upon changed country conditions. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997); 8 C.F.R. § 3.23(b)(4). Additionally, no time and numerical limitations apply to a motion to reopen agreed upon by all parties and jointly filed. 8 C.F.R. § 3.23(b)(4)(iv).
At issue in this case is the regulation that provides exceptions to filing deadlines for motions seeking to reopen orders that were "entered in absentia in deportation or exclusion proceedings." 8 C.F.R. § 3.23(b)(4)(iii) (emphasis added). Although the subheading at 8 C.F.R. § 3.23(b)(4)(iii) signals that this regulation provides a time exception for motions to reopen both deportation and exclusion proceedings conducted in absentia, the regulation itself provides a time exception only for motions to reopen deportation proceedings conducted in absentia. The regulation is silent as to what specific time exception applies to motions to reopen exclusion proceedings conducted in absentia. The regulation provides only a standard for reopening, stating that "[a] motion to reopen exclusion hearings on the basis that the Immigration Judge improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for his failure to appear." 8 C.F.R. § 3.23(b)(4)(iii)(B) (emphasis added).
Along with giving effect to the ordinary meaning of a provision's words, a fundamental guide to statutory interpretation is "common sense." See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1994); Matter of Villalba, Interim Decision 21 I&N Dec. 842, at 849 (BIA 1997) (citing First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 869 (4th Cir. 1989), cert. denied, 493 U.S. 1070 (1990)). "Inasmuch as a regulation is a written instrument the general rules of [statutory] interpretation apply." 1A Norman J. Singer, Sutherland Statutory Construction, § 31.06, at 532 (4th ed. 1985). In exercising our common sense to ascertain the meaning of the pertinent regulations in the instant case, "we construe the language in harmony with the wording and design of the [regulations] as a whole." Matter of Fuentes-Campos, 21 I&N Dec. 905, at (BIA 1997) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)).
The regulations concerning time and numerical exceptions for motions to reopen designate a specific subsection for motions to reopen exclusion proceedings held in absentia. See 8 C.F.R. § 3.23(b)(4). In the design of these regulations, that subsection is given prominence equal to the subsection which specifies that motions to reopen deportation proceedings conducted in absentia are not bound by the general time and numerical limitations. Compare 8 C.F.R. § 3.23(b)(4)(iii)(A) with 8 C.F.R. § 3.23(b)(4)(iii)(B). The regulation at 8 C.F.R. § 3.23(b)(4)(iii)(B) appears to contain a drafting oversight and thereby fails to state explicitly whether time or numerical restrictions exist for motions to reopen exclusion proceedings conducted in absentia. Construing the existing regulatory language, we interpret this regulation as setting no time or numerical limitations on aliens who wish to reopen exclusion proceedings conducted in absentia.2 Therefore, in the instant case, the applicant filed her motion to reopen in a timely manner.
As noted above, the regulation codifies the "reasonable cause" standard at 8 C.F.R. § 3.23(b)(4)(iii)(B). In this case, the applicant argues incorrectly that the appropriate standard is "exceptional circumstances" (a...
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