Matter of Cerna

• Decision Date: 07 October 1991
• Docket Number: A-30257519,Interim Decision Number 3161
• Parties: MATTER OF CERNA In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 399

MATTER OF CERNA

In Deportation Proceedings

Interim Decision Number 3161

A-30257519

Board of Immigration Appeals

Decided by Board October 7, 1991

(1) An applicant for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), must be a lawful permanent resident of the United States and must have a lawful unrelinquished domicile of 7 consecutive years.

(2) Barring a subsequent reversal of a respondent's deportability finding by an appellate court or administratively, an alien's status as a lawful permanent alien ends upon the entry of an administratively final order of deportation.

(3) A respondent who is subject to an administratively final order of deportation cannot successfully move to reopen deportation proceedings to again apply for relief under section 212(c) of the Act as such a respondent is no longer a lawful permanent resident of this country.

(4) Authority from one circuit is not binding in another and the Board declines to follow the holding in Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), outside the jurisdiction of the United States Court of Appeals for the Second Circuit.

(5) Motions to reopen and motions to reconsider are separate and distinct motions with different requirements — a motion to reconsider requests that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked, while a motion to reopen seeks to reopen proceedings so that new evidence can be presented and a new decision entered on a different factual record, normally after a further evidentiary hearing.

(6) The Board of Immigration Appeals has not held that a respondent who has been denied relief under section 212(c) of the Act is precluded from having the original decision reconsidered.

(7) The Board is not favorably disposed to the practice of waiting until the conclusion of the administrative appeal process to file a motion that seeks to offer additional evidence regarding the matter previously in issue.

(8) The Board has not held that the existence of outstanding equities creates a right to have the consequences resulting from particularly serious criminal misconduct waived or that such equities compel a grant of discretionary relief; rather, the Board has noted just the opposite (i.e., that the nature of the adverse factor or factors may ultimately be determinative of whether relief under section 212(c) of the Act is granted).

CHARGE:

Order: Act of 1952 — Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)] — Convicted of controlled substance violation

ON BEHALF OF RESPONDENT: Helena Tetzeli, Esquire 2650 S.W. 27th Avenue, 2nd Floor Miami, Florida 33133

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated March 25, 1987, an immigration judge found the respondent deportable as charged and denied his application for relief from deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), in the exercise of discretion. The respondent, who had conceded his deportability, appealed solely from the denial of his request for relief under section 212(c). The respondent's appeal was dismissed by this Board on July 26, 1990. On January 23, 1991, the respondent, through new counsel, filed a "Motion to Reconsider and/or Reopen and Remand." The motion will be denied.

We note initially that although styled as both a motion to reconsider and a motion to reopen, the motion before us is, in fact, solely a motion to reopen deportation proceedings. The motion seeks the opportunity to submit evidence that was not previously a matter of record and seeks a further opportunity to pursue a request for relief under section 212(c) of the Act on the supplemented record. There is no argument presented that alleges any specific error in our prior decision in this case. In any event, even if the respondent's submission is viewed in part as a motion to reconsider, we decline to reconsider our July 26, 1990, decision as we find nothing in the motion that would cause us to reevaluate that decision on the factual record that was then before us.

As noted, the respondent is seeking to have his deportation proceedings reopened so that he can present what he submits is new evidence and again pursue an application for relief under section 212(c) of the Act. However, the respondent cannot successfully move to reopen proceedings to again apply for relief under section 212(c) as he can no longer establish prima facie eligibility for such relief. An applicant for relief under section 212(c) of the Act must be a lawful permanent resident of the United States and must have a lawful unrelinquished domicile of 7 consecutive years. See section 212(c) of the Act; Gonzales v. INS, 921 F.2d 236, 238 (9th Cir. 1990). This respondent is no longer a lawful permanent resident of this country as his status as such ended upon the entry of the final administrative order of deportation by this Board. See section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1988); Rivera v. INS, 810 F.2d 540 (5th Cir. 1987); Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff'd on other grounds, 681 F.2d 107 (2d Cir. 1982); see also 8 C.F.R. §§ 3.1(d)(2), 3.37, 242.20, 243.1 (1991). For the reasons we enunciated in Matter of Lok, supra, barring a reversal on the merits of the respondent's deportability finding by an appellate court or administratively, the respondent lost his status as a lawful permanent resident on July 26, 1990.¹ Thus, he is no longer statutorily eligible for relief under section 212(c). Gonzales v. INS, supra. Accordingly, the respondent's motion to reopen and remand will be denied.

We note that the United States Court of Appeals for the Second Circuit recently found a decision of this Board denying reopening of deportation proceedings for this same reason to be "arbitrary and capricious." Vargas v. INS, 938 F.2d 358, 361-63 (2d Cir. 1991). The Second Circuit, in reversing our decision and in disagreeing with the Ninth Circuit's analysis in Gonzales v. INS, supra, concluded that a respondent's eligibility for section 212(c) relief, once established, survives a finding of deportability. The court ruled that, even if a respondent no longer is a lawful permanent resident of the United States, he can successfully move to reopen proceedings to again apply for relief under section 212(c) so long as his eligibility for such relief had once been established. Authority from one circuit is not binding in another, however, and we respectfully decline to follow the holding in Vargas v. INS outside the jurisdiction of the Second Circuit for the following reasons. See State of Ga. Dep't of Medical Assist. v. Bowen, 846 F.2d 708, 710 (11th Cir. 1988).

As regards Vargas v. INS, supra, we note that the basis for our conclusion in that case, that a respondent who has lost his lawful permanent resident status is not eligible to have deportation proceedings reopened to again apply for relief under section 212(c), was not, as stated by the court, simply supported by one "phrase" in Matter of Lok, supra. Vargas v. INS, supra, at 360. We also would not agree that we "did not present [our] decision [in Vargas] as an interpretation of statutory provisions." Id. at 363. Our decision in that case was based (as is our decision today) on the rationale we set forth in Matter of Lok, which in turn was founded on our interpretation of sections 101(a)(20) and 212(c) of the Act.

Moreover, contrary to the holding in Vargas v. INS, our conclusions in this regard do not result in an "[i]mplicit [a]mendment" of the regulatory provisions regarding motions to reopen set forth in 8 C.F.R. §§ 3.2 and 3.8 (1991). Vargas v. INS, supra, at 361. First, the regulations certainly do not create an express right to have proceedings considered for reopening in order to further pursue applications for relief under section 212(c) of the Act. In fact, as the Supreme Court noted in INS v. Jong Ha Wang, 450 U.S. 139 (1981), "The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen proceedings under any particular condition." Id. at 144 n. 5. Moreover, the controlling regulations are not "effectively amend[ed]" in this context — or in any other — by the application of the rule that a motion to reopen deportation proceedings to apply for relief will be denied in the absence of a showing of prima facie eligibility for the relief in question. Vargas v. INS, supra, at 361.

Further, in Vargas v. INS, the court stated that our "application of the Lok rule to motions to reconsider Section 212(c) relief has been erratic. Id. at 362. (Emphasis added.)" The court also stated that a "motion to reopen or to reconsider is not a request for a new decision. Rather, it permits a decisionmaker to reevaluate the original decision." Id. In our view, both of these statements inappropriately entwine motions to reopen and motions to reconsider, which "are two separate and distinct motions with different requirements." Chudshevid v. INS, 641 F.2d 780, 783 (9th Cir. 1981); see also Sanchez v. INS, 707 F.2d 1523, 1529 (D.C. Cir. 1983). We have never held that a respondent who has been denied relief under section 212(c) is precluded from having the original decision reconsidered. A motion to reconsider asserts that at the time of the Board's previous decision an error was made. It "questions the Board's decision for alleged errors in appraising the facts and the law." 1 C. Gordon & S. Mailman, Immigration Law and Procedure § 3.05[7][a], at 3-61 (rev. ed. 1991). When we reconsider a decision, we are in effect placing ourselves back in time and considering the case as though a decision in the case on the record before us had never been entered. If the respondent was eligible for relief at the time the original decision was...