In re Yewondwosen

• Decision Date: 09 September 1997
• Docket Number: Interim Decision No. 3327.,File A70 570 088.
• Parties: In re Hiwote YEWONDWOSEN, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 1025

In re Hiwote YEWONDWOSEN, Respondent.

Interim Decision No. 3327.

File A70 570 088 - Arlington.

Board of Immigration Appeals.

Decided September 9, 1997.

Where an alien has not strictly complied with the regulatory requirements of 8 C.F.R. § 3.2(c)(1) (1997) by failing to submit an application for relief in support of a motion to reopen or remand, but the Immigration and Naturalization Service affirmatively joins the motion, the Board of Immigration Appeals or an Immigration Judge may still grant the motion.

FOR THE RESPONDENT: Sahlu Mikael, Esquire, Washington, D.C.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Bruce Dizengoff, Deputy District Counsel.

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Dissenting Opinion: HEILMAN, Board Member, joined by COLE, Board Member.

MATHON, Board Member.

This case is before us on a timely appeal from an Immigration Judge's March 4, 1996, decision denying the respondent's applications for relief from deportation. On July 5, 1996, during the pendency of her appeal, the respondent moved to remand the record to the Immigration Judge to pursue an application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1994).

With her motion to remand, the respondent attached a copy of an approved visa petition filed on her behalf by her mother, qualifying the respondent as an unmarried daughter of a lawful permanent resident under section 203(a)(2)(B) of the Act, 8 U.S.C. § 1153(a)(2)(B) (1994). The record reflects that the respondent's visa priority date is current. On July 12, 1997, the Immigration and Naturalization Service submitted a memorandum in nonopposition to the motion. The respondent, however, did not provide an Application to Register Permanent Residence or Adjust Status (Form I-485) with her motion, as required by 8 C.F.R. § 3.2(c)(1) (1997), which states in pertinent part: "A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation."

The issue in this case, therefore, is whether this Board may grant a motion to remand in a case in which the Service affirmatively states that it does not oppose the motion, if the application for relief is not provided as required by 8 C.F.R. § 3.2(c)(1).

We first note that the respondent's motion is for remand, as opposed to reopening. However, the two motions are treated in a similar, if not identical, manner. See Rodriguez v. INS, 841 F.2d 865 (9th Cir. 1987); Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992). The basic requirements for a motion to reopen before the Board are set forth in 8 C.F.R. § 3.2, which was recently amended in substantial part. See generally 61 Fed. Reg. 18,900 (1996). Added to the requirements for a motion to reopen was the language in question here, which specifies that the application form for any relief requested must be supplied by the moving party.

We next note that a failure to submit an application for relief, as required by 8 C.F.R. § 3.2(c)(1), will typically result in the Board's denial of the motion.

Nonetheless, we consider the Service's position in this case to be significant. Rather than oppose the motion based on the respondent's failure to attach an application for relief, the Service joined her motion to remand for further proceedings. We believe the parties have an important role to play in these administrative proceedings, and that their agreement on an issue or proper course of action should, in most instances, be determinative. In this case, the Service's joining of the motion seems a sufficient cure for the respondent's procedural failure to submit a Form I-485. Furthermore, as with most requests for adjustment of status, the primary purpose of the application form is to establish prima facie eligibility for such relief. If the opposing party joins the motion notwithstanding the lack of such a showing, the Board can reasonably conclude that this issue is not in controversy.

We further note that, although the newly created provision of 8 C.F.R. § 3.2(c)(1) makes it incumbent upon an alien to submit an application form when filing a motion to reopen, it does not state that failure to do so requires denial of the motion. By contrast, the language immediately following that sentence in the regulation specifically precludes favorable action in cases involving certain evidentiary and procedural shortcomings:

A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her . . . .

8 C.F.R. § 3.2(c)(1) (emphasis added).¹

The regulations governing motions also give the Board clear authority to reopen and remand cases without regard to other regulatory provisions. Compare 8 C.F.R. § 3.1(d)(2) (1997) ("The Board may return a case to the Service or Immigration Judge for such further action as may be appropriate, without entering a final decision on the merits of the case.") with 8 C.F.R. § 3.2(a) ("The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision."...