Matter of Gonzalez-Lopez, Interim Decision Number 3198

• Decision Date: 09 March 1993
• Docket Number: Interim Decision Number 3198,A-72016426
• Citation: 20 I&N Dec. 644
• Parties: MATTER OF GONZALEZ-LOPEZ In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 644

MATTER OF GONZALEZ-LOPEZ

In Deportation Proceedings

Interim Decision Number 3198

A-72016426

Board of Immigration Appeals.

Decided by Board March 9, 1993.

(1) The Board of Immigration Appeals is without authority to consider an appeal from an in absentia order made under the deportation procedures specified under section 242(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1) (Supp. II 1990), and section 242B(c)(1) of the Act, 8 U.S.C. § 1252b(c)(1) (Supp. III 1991), where section 242B(c)(3) of the Act clearly shows that any in absentia order made under these new deportation procedures may only be rescinded by filing a motion to reopen with the immigration judge.

(2) An alien may take an appeal to the Board of Immigration Appeals from an immigration judge's denial of a motion to reopen filed for purposes of seeking the rescission of the immigration judge's in absentia order pursuant to section 242B(c)(3) of the Act.

(3) An alien may properly appeal an immigration judge's in absentia order to the Board of Immigration Appeals, or file a motion to reopen with the immigration judge in the circumstances set forth in Matter of Haim, 19 I&N Dec. 641 (BIA 1988), if the in absentia order was rendered in exclusion proceedings or in deportation proceedings where service or attempted service of the notice of the hearing for which the alien failed to appear was made prior to June 13, 1992, the effective date for the new deportation procedures specified in section 242B of the Act.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1)(B) [8 U.S.C. § 1251(a)(1)(B)]—Entered without inspection

ON BEHALF OF RESPONDENT: Vernon D. Gutjahr, Esquire 3434 Haines Way, Suite 102 Falls Church, Virginia 22041

ON BEHALF OF SERVICE: William C. Peterson General Attorney

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

In a decision dated September 21, 1992, an immigration judge found the respondent deportable as charged under section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. II 1990), as an alien who had entered the United States without inspection, and ordered him deported from the United States to El Salvador. The decision was rendered following a hearing held in absentia due to the respondent's failure to appear. The respondent has appealed from that decision. However, the record will be returned to the Office of the Immigration Judge without further Board action, as we are precluded by statute from considering the appeal.

Section 242(b) of the Act, 8 U.S.C. § 1252(b) (Supp. II 1990), in pertinent part, provides as follows:

If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.

The Board has for some time had the authority to consider direct appeals from an immigration judge's in absentia order. See generally 8 C.F.R. §§ 3.1(b)(1), (2) (1992). However, the deportation proceedings in the case before us, including the issuance and service of the Order to Show Cause and Notice of Hearing (Form I-221) on July 26, 1992, the subsequent notice of the date of the hearing in question, and the in absentia hearing were conducted under the deportation procedures specified in newly effective section 242B of the Act, 8 U.S.C. § 1252b (Supp. III 1991). Section 242B, which was inserted in the Act by section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061, and was amended by section 306(b)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1753, became effective as to subsections (a), (b), (c), and (e)(1) on June 13, 1992. See section 545(g) of the Immigration Act of 1990, 104 Stat. at 5066; see also 57 Fed. Reg. 5180 (1992); 56 Fed. Reg. 38,463, 38,464 (1991). Section 242B(c) of the Act was properly applicable to the deportation proceedings before us. That section provides in pertinent part:

(1) IN GENERAL.—Any alien who, after written notice required under subsection (a)(2) has been provided to the alien or the alien's counsel of record, does not attend a proceeding under section 242, shall be ordered deported under section 242(b)(1) in absentia if the Service establishes by clear, unequivocal, and convincing evidence that, the written notice was so provided and that the alien is deportable. The written notice by the Attorney General shall be considered sufficient for purposes of this paragraph if provided at the most recent address provided under subsection (a)(1)(F).

(2) NO NOTICE IF...