I. Motions Before Entry of a Decision
A. Motion to Terminate
B. Motion to Suppress
C. Motion to Redetermine Bond or Custody Determination
D. Motion to Withdraw as Counsel of Record
E. Motions to Recuse
F. Motions to Change Venue
G. Motion for Continuance
H. Motion to Waive the Presence of the Parties
II. Motions After Entry of a Decision
A. Motions to Reconsider
B. Motions to Reopen
C. Commonalities of Motions to Reopen and Reconsider
D. Motion for Stay of Deportation/Removal
E. Motion to Remand
I. MOTIONS BEFORE ENTRY OF A DECISION
An Immigration Judge may be required to resolve a
number of legal issues by motion either before, during, or after the
Unless otherwise permitted by the Immigration Judge,
motions submitted prior to the final order of an Immigration Judge
shall be in writing and shall state with particularity the grounds,
the relief sought, and the jurisdiction. 8 C.F.R. § 1003.23(a).
The Immigration Judge may set and extend time limits
for the making of motions and replies thereto. Id.
A motion shall be deemed unopposed unless timely
response is made. Id.
An Immigration Judge must state the reasons for ruling
on a motion irrespective of whether the ruling is oral or in writing;
otherwise parties are deprived of a fair opportunity to contest the
Immigration Judge's determination, and on appeal the BIA is unable
to meaningfully exercise its responsibility of reviewing a decision
in light of the arguments on appeal. Matter of M-P-, 20 I&N Dec.
786 (BIA 1994).
A. MOTION TO TERMINATE
1. Prior to the commencement of proceedings, DHS
may cancel an Order To Show Cause (OSC), a Notice to Appear (NTA),
or terminate proceedings for the reasons set forth in 8 C.F.R. §
242.7 (1997) [OSC] or in 8 C.F.R. § 239.2(a) and (b)(1997) .
Proceedings are commenced when the charging document is filed with
the Immigration Court.
2. After the commencement of the hearing, only an
Immigration Judge may terminate proceedings upon the request or motion
of either party. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998);
see also 8 C.F.R. § 1239.2(c).
3. The alien may request termination on grounds such
as: the charging document is defective, e.g., not signed; incongruity
between charge and allegations; the DHS has not met its burden of
proof; or so that the alien can pursue an application for naturalization.
This defense is available where the alien “has established prima
facie eligibility for naturalization and the matter involves exceptionally
appealing or humanitarian factors.” See 8 C.F.R. § 1239.2(f);
Matter of Acosta-Hidalgo, 24 I&N. Dec. 103 (BIA 2007). This defense
can also be raised by members of the Armed Forces of the United States.
See INA §§ 318, and 328-329. In many cases, DHS will ask
that proceedings be terminated because it has issued two charging
documents with different alien numbers.
4. A termination order is without prejudice to the
DHS to file the same charge or a new charge at a later time. 8 C.F.R.
§ 242.7(b) (1997) (Orders to Show Cause); 8 C.F.R. § 1239.2(c),
unless res judicata applies. See Ramon-Sepulveda v. INS, 743 F.2d
1307 (9th Cir. 1984).
5. An immigration judge does not err in terminating
a removal case as improvidently begun where the respondent was subject
to reinstatement of his prior order of deportation. Matter of W-C-B-,
24 I&N Dec. 118 (BIA 2007).
B. MOTION TO SUPPRESS
1. Motions to suppress are available only in a limited
2. Statements in a motion to suppress must be specific
and detailed and based on personal knowledge. Matter of Ramirez-Sanchez,
17 I&N Dec. 503, 505 (BIA 1980).
3. An alien who questions the legality of evidence
presented against him or her must come forward with proof establishing
a prima facie case before the DHS will be called upon to assume the
burden of justifying the manner in which it obtained the evidence.
Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988).
4. Even if an arrest or interrogation is unlawful,
it may have no bearing on resulting immigration proceedings because
the Fourth Amendment exclusionary rule is not applicable to the civil
proceeding. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Matter of
Sandoval, 17 I&N Dec. 70 (BIA 1979). However, where there are
egregious violations of the Fourth Amendment or other liberties that
might transgress notions of fundamental fairness and undermine the
value of the evidence obtained, DHS will be precluded from using such
evidence. INS v. Lopez-Mendoza, supra; Matter of Garcia, 17 I&N
Dec. 319 (BIA 1980).
5. Compliance with regulatory requirements is relevant
in assessing the voluntariness of statements and thus their admissibility
into evidence. See 8 C.F.R. §§ 1287.1, 1287.3, and 1287.5.
In order to exclude evidence based upon the noncompliance with DHS
regulations, the alien must meet a heavy burden of proving: (1) that
the regulation was not adhered to; (2) that the regulation was intended
to serve a purpose of benefit to the alien; and (3) that the violation
prejudiced the alien's interest in that it affected the outcome of
the proceedings. Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA
1980); see also Martinez-Camargo v. INS, 282 F.3d 487 (7th Cir. 2002).
6. The exclusionary rule is not applicable, but evidence
is nevertheless inadmissible, if it was obtained in violation of the
alien's privilege against self-incrimination, or if the statement
was involuntary or coerced. Matter of Garcia, 17 I&N Dec. 319
7. The alien bears the burden of proving that DHS's
evidence was unlawfully obtained. Matter of Ramirez-Sanchez, 17 I&N
Dec. 503 (BIA 1980).
8. The amendments to the Act enhanced the enforcement
authority of the DHS officers by allowing them to make arrests, without
warrants, for any federal offense committed in their presence, or
for any federal felony, if there are grounds to believe that the person
in question has committed, or is committing, a felony. INA §
287(a)(4)-(5); 8 C.F.R. § 1287.5(c). The DHS officer must be
performing enforcement duties at the time of the arrest, and it must
be likely that the arrested person could escape before an arrest warrant
could be obtained. See INA § 287(a)(2), 8 C.F.R. § 1287.5.
9. Section 287(c) of the Act empowers immigration
officers to search, without warrant, the person and personal effects
of any person seeking admission to the United States, if they have
reasonable cause for suspecting that such a search would disclose
grounds for denial of admission from the United States.
a. Any immigration officer has the power, without
warrant, to interrogate any alien or person believed to be an alien
as to his or her right to be or remain in the United States. INA §
287(a)(1); 8 C.F.R. § 1287.5; Cervantes v. United States, 263
F.2d 800 (9th Cir. 1959); Matter of Pang, 11 I&N Dec. 213 (BIA
b. There is no requirement that the officer must
have probable cause for such an inquiry. Matter of Perez-Lopez, 14
I&N Dec. 79 (BIA 1972).
10. The Miranda requirements are not controlling
in deportation or removal proceedings, as they are civil, not criminal,
in nature. Matter of Pang, 11 I&N Dec. 213 (BIA 1965); Matter
of Argyros, 11 I&N Dec. 585 (BIA 1966); see also Matter of Lavoie,
12 I&N Dec. 821 (BIA 1968) (no requirement that alien be advised
of right to counsel when taking preliminary statement); Matter of
Baltazar, 16 I&N Dec. 108 (BIA 1977). After the examining officer
has determined that formal proceedings will be instituted, an alien
arrested without warrant of arrest shall be advised of the reason
for his or her arrest and shall also be advised that any statement
made may be used against him or her in a subsequent proceeding. 8
C.F.R. § 1287.3(c).
11. The regulations at 8 C.F.R. § 1287.3 provide
that an alien arrested without a warrant of arrest under the authority
contained in section 287(a)(2) of the Act will be examined by an officer
other than the arresting officer, with limited exceptions.
12. Except at the border or its functional equivalents,
officers on roving patrol may stop vehicles to question the occupants
about their citizenship and immigration status only if they are aware
of specific articulable facts, together with rational inferences from
those facts, that reasonably warrant suspicion that the vehicles contain
aliens who may be illegally in the country. United States v. Brignoni-Ponce,
422 U.S. 873 (1975).
The Supreme Court has distinguished United States
v. Brignoni-Ponce, 422 U.S. 873 (1975), as it relates to stopping
of vehicles, from stopping and questioning of persons. INS v. Delgado,
466 U.S. 210 (1984). The Supreme Court ruled that detaining a person
for questioning on a suspicion of alienage alone would diminish the
privacy and security interests of both citizens and aliens legally
in this country and would grant the INS impermissible discretion to
detain and question an individual at whim. The Supreme Court ruled
that there was no need for individualized suspicion to support the
questioning by immigration officers of all workers in a factory entered
by the officers on a warrant of consent, unless the questioned person
had a reasonable basis for believing that he or she was not free to
13. An immigration officer may ask questions to which
a person responds voluntarily, provided there is no use of force,
display of a weapon, the threatening presence of several officers,
or other circumstances leading the questioned person reasonably to
believe that he or she is not free to leave. Benitez-Mendez v. INS,
707 F.2d 1107 (9th Cir. 1983), rehr'g granted and opinion modified,
752 F.2d 1309 (9th Cir. 1984) (concluding that the seizure of the
alien violated the Fourth Amendment but statements obtained from the
alien as a result of the illegal arrest were admissible at the deportation
14. Trained and experienced immigration officers
may draw inferences and make deductions based on an assessment of
the whole picture, which can supply a basis for a valid investigatory
stop predicated on a reasonable suspicion of illegal activity. United
States v. Cortez, 449 U.S. 411 (1981).
a. An investigatory stop cannot support prolonged
interrogation without probable cause to believe that a violation has
occurred, particularly if the detained person is required to accompany
the officers to their office. Dunaway v. New York, 442 U.S. 200 (1979).
b. The Court in United States v. Martinez-Fuerte,
428 U.S. 543 (1976), upheld the power of immigration officers to stop
automobiles and question their occupants concerning their immigration
status at reasonably located traffic checkpoints even in the absence
of individualized suspicion of any impropriety. It is also constitutional
to refer motorists selectively to a secondary inspection area for
further inquiry on the basis of criteria that would not sustain a
roving-patrol stop even if it be assumed that such referrals are made
largely on the basis of apparent Mexican ancestry. Factors that may
be taken into account in determining whether stopping a vehicle in
a border area is justified: characteristics of the area; proximity
to the border; patterns of traffic on the particular road; previous
illegal traffic; information about recent illegal border crossings
in the area; behavior of the driver (such as erratic driving or obvious
attempts to evade officers); appearance of the vehicle (load, compartments,
large number of passengers); occupants trying to hide. The government
argued that trained officers can recognize the characteristic appearance
of persons who live in Mexico, relying on such factors as the mode
of dress and haircut. The Court however found that Mexican ancestry
would not in itself support a reasonable suspicion that the occupants
in the vehicle were aliens, but that it could be taken into account
as a relevant factor. In all situations the officer is entitled to
assess the facts in light of his or her experience detecting illegal
entry and smuggling.
c. A brief "investigatory stop" of a suspicious
individual in order to determine his or her identity or to maintain
the status quo momentarily while obtaining more information may be
reasonable. Adams v. Williams, 407 U.S. 143 (1972).
15. Under appropriate circumstances, a proper interrogation
may involve some measure of restraint, short of arrest, to complete
the interrogation. Matter of Yau, 14 I&N Dec. 630 (BIA 1974);
Matter of Wong and Chan, 13 I&N Dec. 141 (BIA 1969).
Forcible temporary restraint incidental to interrogation
is valid, and any resulting evidence is admissible, if the officer
acted reasonably, in the light of the surrounding circumstances. Lau
v. INS, 445 F.2d 217 (D.C. Cir. 1971), cert. denied, 404 U.S. 864
16. A search conducted with the consent of a person
who is not in custody is valid if the consent is voluntarily given,
without any duress or coercion, express or implied. Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). The government has the burden of
showing that such consent was voluntary, based on the totality of
all the surrounding circumstances.
C. MOTION TO REDETERMINE BOND OR CUSTODY
Pursuant to 8 C.F.R. § 1003.19(e), after an
initial bond redetermination, a request for a subsequent bond redetermination
shall be made in writing and shall be considered only upon a showing
that the alien's circumstances have changed materially since the prior
bond redetermination. See Bond/Custody for more information.
Also, for procedures in automatic stay cases where
DHS intends to invoke an automatic stay of an IJ’s decision
ordering an alien’s release in any case in which a DHS official
has ordered that the alien be held without bond or has set a bond
of $10,000 or more, see Interim Operating Policies and Procedures
Memorandum 06-03, Procedures for Automatic Stay Cases, dated October
D. MOTION TO WITHDRAW AS COUNSEL OF RECORD
1. Once a notice of appearance has been filed with
the Immigration Court, a withdrawal or substitution of counsel may
only be permitted by an Immigration Judge only upon an oral or written
motion without a fee. 8 C.F.R. § 1003.17(b).
2. Whether to grant a motion to withdraw as counsel
is a matter left to the discretion of the Immigration Judge. It is
suggested that the Immigration Judge use the common sense test to
determine whether or not to grant a motion to withdraw.
a. The Immigration Judge should expect counsel to
explain the reasons for the withdrawal, if the reasons in the motion
are vague, in order to protect the rights of the alien. The Immigration
Judge must develop a complete record.
b. A difference of opinion over direction of the
counsel and the alien may be a valid reason to grant
a motion for a withdrawal.
c. An alien failing to cooperate with an attorney
in preparing his
or her case may be a sufficient ground to grant
3. An alien failing to keep his or her attorney apprized
of his or her whereabouts and failing to appear for a hearing is probably
also a valid reason to grant a withdrawal on a conditional basis.
See Matter of Rosales, 19 I&N Dec. 655 (BIA 1988). Under these
circumstances, a grant of withdrawal can be either conditional or
unconditional. Id. (alien failed to keep the INS or his attorney apprized
of his whereabouts). The Board in Rosales stated that where an attorney
asks to withdraw, his request should include evidence that he attempted
to advise the respondent, at his last known address, of the date,
time, and place of the scheduled hearing. Counsel should also provide
the Immigration Judge with the respondent's last known address, assuming
it is more current than any address previously provided to the Immigration
Judge. Unless these requirements have been met, a request to withdraw
from representation should not be unconditionally granted since counsel
is responsible for acceptance of service of documents pursuant to
8 C.F.R. § 1292.5(a). Such precautions help insure that proper
notice of a hearing is given and increase the likelihood that a respondent
receives notice and appears for a scheduled hearing. If these steps
have not been taken, counsel's withdrawal should only be conditionally
granted; i.e., granted for all purposes except for the receipt of
an in absentia order.
4. If the Immigration Judge is convinced that the
attorney has done all he or she can to contact his client and advise
him or her of the hearing date and the consequences of failing to
appear, then he or she can grant an unconditional withdrawal. However,
if the Immigration Judge believes that the attorney could have done
more to contact the alien, then he or she should grant a conditional
withdrawal, requiring that the attorney accept service of documents,
and perhaps be able to contact the alien.
5. If the withdrawal is granted, the Immigration
Judge must again be aware of the need to protect the alien's rights.
The Immigration Judge should again advise the alien of the right to
obtain counsel and that in fact it might be in their best interest
to obtain counsel. [When a withdrawal of counsel is granted, the name
of prior counsel must be deleted immediately from the CASE system.]
E. MOTIONS TO RECUSE
1. There are certain circumstances where recusal
is warranted. The test is an objective one, such that an Immigration
Judge should recuse him or herself “when it would appear to
a reasonable person, knowing all the relevant facts, that a judge’s
impartiality might reasonably be questioned.” Operating Polices
and Procedures Memorandum 05-02, Procedures For Issuing Recusal Orders
In Immigration Proceedings, March 21, 2005. See also Liteky v. U.S.,
510 U.S. 540 (1994); Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988); U.S. v. Winston, 613 F.2d 221 (9th Cir. 1980);
Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044,
1052 (5th Cir. 1975).
2. The BIA has noted three instances that warrant
recusal: (1) when the alien demonstrates that he was denied a constitutionally
fair proceeding; (2) when the Immigration Judge has a personal bias
stemming from an “extrajudicial” source; and (3) when
the Immigration Judge’s judicial conduct demonstrates “such
pervasive bias and prejudice.” Matter of Exame, 18 I&N Dec.
303, 305 (BIA 1982) (quoting Davis v. Board of Sch. Comm’rs
of Mobile County, 517 F.2d 1044 (5th Cir. 1975); see also Matter of
R-S-H, 23 I&N Dec. 629, 638 (BIA 2003) (finding no indication
in the record that the IJ had “prejudged the case or that his
decision was motivated by issues outside the evidence of record”).
3. An Immigration Judge has an obligation not to
recuse himself or herself based upon mere allegations or threats.
Therefore, all requests for recusal shall be made on the record, or
filed in writing, and supported by specific reasons why recusal is
warranted, or alternatively, why the Immigration Judge is objective
and not biased and therefore should go forward with the case. See
Operating Polices and Procedures Memorandum 05-02, Procedures For
Issuing Recusal Orders In Immigration Proceedings, March 21, 2005.
a. If, at any time prior to the hearing, an Immigration
Judge issues a decision on a recusal matter, he or she must render
it in writing and serve it upon the parties to ensure that the parties
have sufficient notice that their hearing will be rescheduled with
another IJ. The written decision must contain a well-reasoned opinion
explaining the circumstances and legal reasoning behind either the
grant or the denial of the recusal. Moreover, the judge must issue
a written decision in every case, regardless if the recusal was sua
sponte or predicated upon a motion by one of the parties. Simple form
or blanket orders will not suffice unless the immigration judge had
a role in the case as a DHS attorney or private attorney. In that
case, the order shall simply state that the IJ had a role in the case
as a DHS attorney or private attorney. Operating Polices and Procedures
Memorandum 05-02, Procedures For Issuing Recusal Orders In Immigration
Proceedings, dated March 21, 2005.
b. There may be circumstances where the grounds for
a recusal may not become apparent until the actual hearing. In these
situations, the judge must go on record and issue an oral decision
describing the reasons behind the grant or denial of the recusal motion.
The decision must contain a well-reasoned opinion explaining the circumstances
and legal reasoning behind either the grant or the denial of the recusal.
Operating Polices and Procedures Memorandum 05-02, Procedures For
Issuing Recusal Orders In Immigration Proceedings, March 21, 2005.
F. MOTIONS TO CHANGE VENUE
1. Venue lies at the Immigration Court where the
charging document is filed by the Service. 8 C.F.R. §§ 1003.14(a),
2. The Immigration Judge, for good cause shown, may
upon his or her discretion, change venue only upon motion by one of
the parties. 8 C.F.R. § 1003.20(b); Matter of Dobere, 20 I&N
Dec. 188 (BIA 1990) (regulations authorize Immigration Judge to direct
change of venue in exclusion, deportation, and removal cases).
3. Good cause for change of venue is determined by
balancing the relevant factors affecting fundamental fairness, including
administrative convenience, expeditious treatment of the case, location
of witnesses, and cost of transporting witnesses to new location.
Matter of Rahman, 20 I&N Dec. 480 (BIA 1992); Matter of Velasquez,
19 I&N Dec. 377 (BIA 1986).
4. In exclusion cases, the place of interrupted entry
into the United States may have little relevance to the venue of the
hearing. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992). An Immigration
Judge may not change venue without giving the Service an opportunity
5. While the applicant's place of residence may be
relevant, it may be outweighed by demonstration that the DHS would
be prejudiced by such a change of venue. Matter of Rahman, 20 I&N
Dec. 480 (BIA 1992).
6. The convenience of counsel may also be relevant,
but this factor may be outweighed by the availability of experienced
counsel in the area of detention and by prejudice to the DHS. Matter
of Rahman, 20 I&N Dec. 480 (1992).
7. The Immigration Judge may grant a change of venue
only after the other party has been given notice and an opportunity
to respond to the motion to change venue. 8 C.F.R. § 1003.20(b);
Matter of Rahman, 20 I&N Dec. (BIA 1992).
8. No change of venue shall be granted without identification
of a fixed street address, including city, state and ZIP code, where
the respondent/applicant may be reached for further hearing notification.
8 C.F.R. § 1003.20(c).
9. Before a change of venue is granted, the alien
should plead to the charging document. See Matter of Rivera, 19 I&N
Dec. 688 (BIA 1988). In addition, the Immigration Judge should attempt
to resolve the issue of deportability or inadmissibility, and determine
what forms of relief will be sought. The Immigration Judge may set
a date certain by which the relief applications, if any, must be filed
with the sending court, and state on the record that failure to comply
with the filing deadline will constitute abandonment of the relief
applications and may result in the Immigration Judge rendering a decision
on the record as constituted. A copy of the asylum application submitted
to support a motion for change of venue is not a definitive filing.
The actual filing must occur in open court, at the court to which
the case is transferred. The warnings for filing frivolous applications
for asylum must be given orally and in writing to the alien at the
time of filing in front of you. (FORM U-9).
10. The mere submission of a motion for a change
of venue does not relieve an alien or his or her attorney from the
responsibility to attend a hearing of which they have been given notice.
It may not be assumed that the motion will be granted. Matter of Patel,
19 I&N Dec. 260 (BIA 1985).
11. Other factors to be considered in determining
a change of venue include: (1) nature of evidence and its importance
to the alien's claim; (2) whether the request is due to unreasonable
conduct on the alien's part; and (3) the number of prior continuances
granted. Matter of Seren, 15 I&N Dec. 590 (1976).
12. The respondent's request for change of venue
to present expert witness testimony was properly denied where the
respondent made no attempt to submit an offer of proof related to
the witness, identity, qualifications, and testimony, or to state
his opinion by way of an affidavit to the Immigration Judge. Matter
of Bader, 17 I&N Dec. 525 (BIA 1980).
13. For additional guidance, see Operating Policy
and Procedure Memorandum 01-02, Changes of Venue, October 9, 2001.
G. MOTION FOR CONTINUANCE
1. The Immigration Judge may grant a motion for a
reasonable continuance, either at his or her own instance or for good
cause shown, upon application by the alien or the Service. 8 C.F.R.
2. A continuance may be requested at a master calendar
hearing, individual calendar hearing or at any time during the pendency
of the proceedings.
3. Local operating procedures may include a requirement
for the submission of applications for continuances of a scheduled
hearing. Sometimes they will require the submission of a written motion,
when time permits. A sudden medical or other emergency, or unusual
circumstance may justify a telephone request to the Immigration Court
for such a continuance to be made, but that may also depend on the
existence of Local Operating Procedures.
4. The sound discretion of the Immigration Judge
to grant or deny requests for continuances is very broad. An Immigration
Judge may grant a continuance only for "good cause" shown.
5. The issue for the Immigration Judge is whether
the alien would be prejudiced by the denial of a continuance. The
courts are divided on how liberally an Immigration Judge should exercise
discretion in granting a continuance. Baires v. INS, 856 F.2d 89 (9th
Cir. 1988) (holding that the insistence upon expeditiousness in the
face of a justifiable request for delay can render the alien's statutory
rights merely an empty formality); Molina v. INS, 981 F.2d 14 (lst
Cir. 1992) (Immigration Judge has broad legal power to decide whether
to grant or deny a continuance); Matter of Sibrun, 18 I&N Dec.
354 (BIA 1983) (alien must establish by full and specific articulation
of the facts involved or evidence which he or she would have presented,
that the denial caused actual prejudice and harm and materially affected
the outcome of the case).
6. Situations under a which a continuance may be
a. Attorney recently retained and not familiar with
b. To obtain witnesses or documents crucial to the
c. Visa petition pending, which if approved will
dispose of the case.
d. Pending FOIA request (but remember, no right
e. DHS does not have "A" file.
f. Serious illness or death of alien or attorney.
7. A motion for continuance based upon an asserted
lack of preparation and request for additional time must be supported,
at a minimum, by a reasonable showing that the lack of preparation
occurred despite a diligent effort to be ready to proceed. Matter
of Sibrun, 18 I&N Dec. 354 (BIA 1983).
8. Parties must appear unless the motion has been
granted. Matter of Rivera, 19 I&N Dec. 688, 690 (BIA 1988); Matter
of Patel, 19 I&N Dec. 260 (BIA 1985).
H. MOTION TO WAIVE THE PRESENCE OF THE PARTIES
The Immigration Judge may for good cause, and consistent
with section 240(b) of the Act, waive the presence of the alien at
a hearing when the alien is represented or when the alien is a minor
child at least one of whose parents or whose legal guardian is present.
When it is impracticable by reason of an alien's mental incompetency
for the alien to be present, the presence of the alien may be waived
provided that the alien is represented at the hearing by an attorney
or legal representative, a near relative, legal guardian or friend.
8 C.F.R. § 1003.25(a).
II. MOTIONS AFTER ENTRY OF A DECISION
A. MOTIONS TO RECONSIDER
1. Motions to reconsider and motions to reopen 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. Matter of Ramos, 23 I&N
Dec. 336, 338 (BIA 2002); Matter of Cerna, 20 I&N Dec. 399 (BIA
2. The Immigration Judge may reconsider the grant
of any discretionary relief before it becomes final. Matter of Vanisi,
12 I&N Dec. 616 (BIA 1968).
3. A motion to reconsider must specify the errors
of law or fact in the previous order and must be supported by pertinent
authority. INA § 240(c)(6)(C); 8 C.F.R. §§ 1003.23(b)(2);
Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006).
4. Evidence submitted in support of a motion to reconsider
must establish a prima facie case that the respondent is eligible
for the relief sought. Matter of Heidari, 16 I&N Dec. 203 (BIA
5. A motion to reconsider a decision rendered by
an Immigration Judge that is pending when an appeal is filed with
the Board, or that is filed subsequent to the filing with the Board
of an appeal from the decision sought to be reconsidered, may be deemed
by the Board to be a motion to remand the decision for further proceedings
before the Immigration Judge from whose decision the appeal was taken.
8 C.F.R. § 1003.2.
6. An alien may file one motion to reconsider a decision
that he is removable from the United States. INA § 240(c)(6)(A);
8 C.F.R. § 1003.23(b); Matter of J-J-, 21 I&N Dec. 976 (BIA
a. An alien may not seek reconsideration of a decision
denying a previous motion to reconsider. 8 C.F.R. 1003.23(b)(2).
b. The motion to reconsider must be filed within
30 days of the date of entry of a final administrative order of removal,
deportation or exclusion. INA § 240(c)(6)(B); 8 C.F.R. §§
1003.23(b)(1); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
c. A motion to reconsider a decision of the Board
must be filed not later than 30 days after the mailing of the decision.
8 C.F.R. 1003.2(b)(2); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
7. A motion to reconsider a decision of the BIA must
include the following: (1) an allegation of material or factual legal
errors in the prior decision that is supported by pertinent authority;
(2) in the case of an affirmance without opinion (AWO), a showing
that the alleged errors and legal arguments were previously raised
on appeal and a statement explaining how the Board erred in affirming
the IJ’s decision under the AWO regulations; and (3) if there
has been a change in law, a reference to the relevant statute, regulation,
or precedent and an explanation of how the outcome of the Board’s
decision is materially affected by the change; Matter of O-S-G-, 24
I&N Dec. 56 (BIA 2006).
B. MOTIONS TO REOPEN
1. Motions to reconsider and motions to reopen are
separate and distinct motions with different requirements. 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. Matter of Cerna, 20
I&N Dec. 399 (BIA 1991).
2. A party seeking reopening bears a heavy burden
because motions for reopening are disfavored. Matter of Coelho, 20
I&N Dec. 464 (BIA 1992).
3. There is a need for strict compliance with the
regulations. INS v. Jong Ha Wang, 450 U.S. 139 (1981) (motion to reopen
to apply for suspension of deportation denied where the allegations
of hardship were conclusory and unsupported by affidavit).
4. In general, a motion to reopen shall state new
facts that will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other evidentiary
material. INA § 240(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); INS
v. Wang, 450 U.S. 139 (1981) (unsupported statements by counsel or
the alien in the motion itself have no evidentiary value); Matter
of Barrera, 19 I&N Dec. 837 (BIA 1989); Wolf v. Boyd, 238 F.2d
249 (9th Cir. 1957), cert. denied, 353 U.S. 936 (1957); Matter of
Escalante, 13 I&N Dec. 223 (BIA 1969) (denied for lack of supporting
evidence showing eligibility for any relief).
5. A motion to reopen can also be filed if there
is new law or intervening circumstances that might change the result
in the case. INS v. Rios-Pineda, 471 U.S. 444 (1985); Matter of S-Y-G-,
24 I&N Dec. 247 (BIA 2007); Matter of X-GW-, 22 I&N Dec. 71
(BIA 1998), superceded in Matter of G-C-L-, 23 I&N Dec. 359 (BIA
2002) (withdrawing policy of granting untimely motions to reopen by
applicants claiming eligibility for asylum based solely on coercive
population control policies).
6. A motion to reopen will not be granted unless
the Immigration Judge is satisfied that the evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the former hearing. 8 C.F.R. §§
1003.23(b)(3); INS v. Wang, 450 U.S. 139 (1981); Matter of Coehlo,
20 I&N Dec. 464 (BIA 1992); Matter of Barrera, 19 I&N Dec.
837 (BIA 1989); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA
1979); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of
Lam, 14 I&N Dec. 98 (BIA 1972).
7. A motion to reopen will not be granted for the
purpose of providing the alien an opportunity to apply for any form
of discretionary relief if the alien's rights to make such application
were fully explained to him or her by the Immigration Judge and he
or she was afforded an opportunity to apply at the hearing, unless
the relief is sought on the basis of circumstances that have arisen
subsequent to the hearing. 8 C.F.R. §§ 1003.23(b)(3); Matter
of Barrera, 19 I&N Dec. 837 (1989).
8. 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.
8 C.F.R. §§ 1003.23(b)(3), 1208.4(b)(3)-(4). But see Matter
of Yewondwosen, 21 I&N Dec. 1025 (BIA 1997) (holding that where
an alien has not strictly complied with 8 C.F.R. § 3.2(c)(1)
(1997) by having failed to submit an application for relief in support
of a motion to reopen or remand, and the INS affirmatively joins the
motion, the BIA or an Immigration Judge may still grant the motion
in the interests of fairness and administrative economy). Further,
an alien seeking to reopen proceedings to establish that a conviction
has been vacated bears the burden of proving that the conviction was
not vacated solely for immigration purposes. Matter of Chavez-Martinez,
24 I&N Dec. 272 (BIA 2007).
9. An alien must show prima facie eligibility for
the requested relief and that relief is warranted in the exercise
of discretion. INS v Abudu, 485 U.S. 94 (1988); INS v. Wang, 450 U.S.
139 (1981); Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) (finding
no prima facie showing of relief in alien’s motion to reopen
based on forced sterilization practices in China where evidence and
country information do not establish forced sterilization of other
Chinese nationals with foreign-born children returning to the alien’s
home province); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992);
Matter of Barrera, 19 I&N Dec. 837 (1989); Hernandez-Ortiz v.
INS, 777 F.2d 509 (9th Cir. 1985) (could properly deny motion to reopen
if it did not present prima facie case); Ananeh-Firempong v. INS,
766 F.2d 621 (1st Cir.1985) (reopening to apply for asylum improperly
denied since there was an adequate prima facie showing which required
a hearing); Marquez-Medina v. INS, 765 F.2d 673 (7th Cir. 1985) (same;
suspension of deportation); Samini v. INS, 714 F.2d 992 (9th Cir.
1983) (prima facie showing of eligibility based on totality of circumstances
warranting hearing); Matter of Escobar, 18 I&N Dec. 412 (BIA 1983)
(no prima facie showing of eligibility for suspension of deportation
or asylum); Matter of Patel, 16 I&N Dec. 600 (BIA 1978) (no prima
facie showing of hardship where conclusory assertions of hardship
insufficient). A prima facie showing has been described as proof sufficiently
strong to suffice on its own until it is contradicted or overruled
by other evidence. Conclusory and conjectural allegations are insufficient
to establish eligibility for reopening. Matter of Martinez-Romero,
18 I&N Dec. 75 (BIA 1981), aff'd, 692 F.2d 595 (9th Cir. 1982);
Matter of Sipus, 14 I&N Dec. 229 (BIA 1972).
10. A prima facie showing of apparent eligibility
entails statutory eligibility and that the relief may be warranted
as a matter of discretion. INS v. Wang, 450 U.S. 139 (1981); INS v.
Bagamasbad, 429 U.S. 24 (1976); Matter of Reyes, 18 I&N Dec. 249
(BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981),
aff'd, 692 F.2d 595 (9th Cir. 1982); Matter of Lett, 17 I&N Dec.
312 (BIA 1980); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980);
Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979) (discretion
clearly unwarranted since applicant was serving sentence for recent
murder of wife); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972);
Matter of Lam, 14 I&N Dec. 98 (BIA 1972).
11. Equities acquired after a final order of deportation
may be given less weight than those acquired before the alien was
found deportable. Matter of Correa, 19 I&N Dec. 130, (BIA 1984).
But see Matter of Rodarte, 21 I&N Dec. 150 (BIA 1996) (motion
to reopen granted and remanded to Immigration Judge for a hearing
on adjustment of status and 212(c) applications; the new evidence
requirement for reopening was satisfied by the presentation of equities
acquired since respondent's deportation hearing).
12. Even if a prima facie case of apparent eligibility
is shown, the
motion to reopen can be denied in the exercise of
discretion. 8 C.F.R. § 1003.23(b)(3); INS v. Rios-Pineda, 471
U.S. 444 (1985) (Board has broad discretion to deny reopening even
if a prima facie case of eligibility shown); Matter of Reyes, 18 I&N
Dec. 249 (BIA 1982).
a. The grant of reopening or reconsideration is a
matter of discretion. 8 C.F.R. § 1003.23; Greene v. INS, 313
F.2d 148 (9th Cir. 1963), cert. denied, 374 U.S. 828 (1963) (no statute
requires reopening or fixes the conditions on which it is to be granted).
b. The alien must be eligible for reopening as a
matter of discretion. If he or she failed to surrender to the INS
for deportation, the motion can be denied as a matter of discretion.
See Matter of Barocio, 19 I&N Dec. 255 (BIA 1985). But see In
re Zmijewska, 24 I&N Dec. 87 (BIA 2007) (holding that an alien
is not barred from discretionary relief for failing to depart under
section 240B(d)(1) where alien through no fault of their own was unaware
of a voluntary departure order or was physically unable to depart
within the time granted).
c. A motion may be denied in the exercise of discretion
because of adverse circumstances not offset by counterbalancing equities,
without otherwise addressing statutory eligibility for the relief
being sought. INS v. Wang, 450 U.S. 139 (1981); INS v. Abudu, 485
U.S. 94 (1988); INS v. Bagamasbad, 429 U.S. 24 (1976); Matter of Barocio,
19 I&N Dec. 255 (BIA 1985); Matter of Reyes, 18 I&N Dec. 249
(BIA 1982); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979).
d. A motion to reopen can be denied on discretionary
grounds alone where there are significant reasons for denying reopening.
INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Phinpathya, 464 U.S.
183 (1984); INS v. Wang, 450 U.S. 139 (1981); INS v. Bagamasbad, 429
U.S. 24 (1976); Matter of Barrera, 19 I&N Dec. 837 (1989). The
Attorney General has broad discretion to grant or deny motions to
reopen. INS v. Doherty, 502 U.S. 314 (1992). Where the ultimate relief
is discretionary, the Immigration Judge may conclude that he or she
would not grant the relief in the exercise of discretion; therefore
the moving party must establish that he or she warrants the relief
sought as a matter of discretion. Matter of Coelho, 20 I&N Dec.
464 (BIA 1992).
e. The deliberate flouting of the immigration laws
is a very serious adverse factor in the exercise of discretion. Matter
of Barocio, 19 I&N Dec. 255 (BIA 1985) (failure to report for
deportation following notification by the INS).
13. An alien may file one motion to reopen proceedings
(whether before the Board or the Immigration Judge) with limited exceptions
relating to asylum and in absentia orders found at 1003.23(b)(4).
INA § 240(c)(7)(A); 8 C.F.R. §§ 1003.2(c)(2)-(3) and
1003.23(b)(1) and (4); Matter of Mancera, 22 I&N Dec. 79 (BIA
1998); Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998), superceded
in Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002) (withdrawing policy
of granting untimely motions to reopen by applicants claiming eligibility
for asylum based solely on coercive population control policies));
Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
14. 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. INA § 240(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),
1003.23(b)(1). An order becomes administratively final under one of
three circumstances, whichever occurs first: (1) Appeal is waived
by the parties at which time the order becomes administratively final
immediately. Matter of Shih, 20 I&N Dec. 697 (1993); (2) It is
administratively final when the time expires for filing an appeal;
(3) When the BIA has dismissed an appeal that was timely filed.
a. There is a strong public interest in bringing
litigation to a close as promptly as is consistent with the interest
in giving adversaries a fair opportunity to develop and present their
respective cases. INS v. Abudu, 485 U.S. 94 (1988).
b. These limitations do not apply, however, to motions
to reopen filed by the DHS in removal proceedings pursuant to INA
§ 240. 8 C.F.R. § 1003.23(b)(1).
c. These time and number limits on the filing of
a motion to reopen likewise do not apply if the basis of the motion
• to rescind an order of deportation/removal
entered in absentia pursuant to INA § 242B(c)(3); INA §
240(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(iii); or
• to apply or reapply for asylum or withholding
of deportation or removal and is based on changed country conditions
arising in the country of nationality or the country to which removal,
deportation or exclusion has been ordered, if such evidence is material
and was not available and could not have been discovered or presented
at the previous proceeding. See also INA § 240(c)(7)(C)(ii);
8 C.F.R. §§ 1003.2(c)(3)(ii) and 1003.23(b)(4)(i); Matter
of J-J-, 21 I&N Dec. 976 (BIA 1997). If the original asylum application
was denied based upon a finding that it was frivolous, then the alien
is ineligible to file either a motion to reopen or reconsider, or
for a stay of removal. 8 C.F.R. § 1003.23(b)(4)(i); or
• agreed upon by all parties and jointly filed.
8 C.F.R. § 1003.23(b)(4)(iv). Notwithstanding such agreement,
the parties may contest the issues in a reopened proceeding. See 8
C.F.R. § 1003.2(c)(3)(iii) (motions to reopen before Board of
Immigration Appeals). DHS may not waive statutory bars to relief by
joining in a motion. An Immigration Judge may not reopen a matter
for relief despite the fact that the parties have jointly moved in
the face of a statutory bar. Former INA § 242B; or
• filed by the DHS in removal proceedings
pursuant to section 240 of the Act; or those motions filed by the
Service in exclusion or deportation proceedings, when the basis of
the motion is fraud in the original proceeding or a crime that would
support termination of asylum in accordance with 8 C.F.R. § 1208.22.
See 8 C.F.R. §§ 1003.2, 1003.23(b)(1), 1208.24(f).
15. An alien in removal proceedings will not be prima
facie eligible for voluntary departure, cancellation of removal, and/or
adjustment of status for a period of ten years, if he or she received
the section 240 warnings and failed to appear for the hearing absent
exceptional circumstances. INA § 240(b)(7). An alien in removal
proceedings who fails to depart as required under an order of voluntary
departure shall be subject to a civil penalty of not less than $1000
and not more than $5000, and will not be prima facie eligible for
voluntary departure, cancellation of removal, and/or adjustment of
status for a period of ten years (specifically, sections 240A, 245,
248, 249). However, these restrictions on relief do not apply to relief
under § 240A or § 245 on the basis of a petition filed by
a VAWA self-petitioner, or a petition filed under § 240A(b)(2),
or under § 244(a)(3) (as in effect prior to March 31, 1997),
if the extreme cruelty or battery was at least one central reason
for the alien’s overstaying the grant of voluntary departure.
INA § 240B(d)(2). The statute requires that the "order permitting
the alien to depart voluntarily shall inform the alien of the penalties
under this subsection." Section 240B(d)(3) of the Act. Section
240B(d) of the Act does not refer to an excuse based on "exceptional
circumstances" for failing to timely depart. Section 240B(d)
of the Act also does not refer to limitations on discretionary relief
for failure to report for removal as required. However, proposed rules
published September 4, 1998 [63 Fed. Reg. 47208] do seek to add a
10-year bar on relief, including asylum, for failure to timely surrender
for removal absent exceptional circumstances. See also In re Zmijewska,
24 I&N Dec. 87 (BIA 2007) (holding that the BIA lacks authority
to apply an “exceptional circumstances” or other general
equitable exception to the penalty provisions for failure to depart
within the time period afforded for voluntary departure).
16. The BIA has held that an alien who during the
pendency of a period of voluntary departure, files a motion to reopen
in order to apply for suspension of deportation is statutorily ineligible
for suspension pursuant to former section 242B(e)(2) of the Act, if
he or she subsequently remains in the United States after the scheduled
date of departure, provided the notice requirements of the section
have been satisfied and there is no showing that failure to depart
timely was due to "exceptional circumstances" as provided
in section 242B(f)(2) of the Act. Matter of Shaar, 21 I&N Dec.
541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir. 1998); Mardones v. McElroy,
197 F.3d 619 (2d Cir. 1999) (citing Shaar with approval). However,
in Azarte v. Ashcroft, the Ninth Circuit overruled its decision in
Shaar, determining that Shaar has been superceded by statute (post-IIRIRA
cases) based on the fact that Shaar relied on a pre-IIRIRA voluntary
departure statutory provision, since repealed; neither the voluntary
departure statute nor the regulations on motions to reopen under prior
law had time limits; and prior voluntary departure grants were for
much longer periods of time. Azarte v. Ashcroft, 394 F.3d 1278 (9th
Cir. 2005) (voluntary departure period tolled in removal proceedings
where motion to reopen filed with BIA within the voluntary departure
period, with a request for a stay); Sidikhouya v. Gonzales, 407 F.3d
950 (8th Cir. 2005) (abuse of discretion to apply Matter of Shaar
in post-IIRIRA case where motion filed prior to expiration of voluntary
departure period granted by BIA, but period expired prior to ruling
by BIA); see also Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005)
(rejecting Shaar post-IIRIRA); Ugokwe v. U.S. Attorney General, 453
F.3d 1325 (11th Cir. 2006) (rejecting Shaar post-IIRIRA); but see
Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006) (rejecting Azarte);
Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), rehearing and
rehearing en banc denied (July 26, 2006), cert. denied, 127 S.Ct 1874
(March 26, 2007) (rejecting Azarte). NOTE: The Third Circuit has rejected
Matter of Shaar even in pre-IIRIRA cases, finding that a motion to
reopen filed within the voluntary departure period is an “exceptional
circumstance” in failure to depart. Barrios v. Attorney General,
399 F.3d 272 (3d Cir. 2005).
More recently, the Board has held that an alien has
not failed to voluntarily depart under Section 240B(d)(1) of the Act
when the alien, through no fault of her own, was unaware of the voluntary
departure order or was physically unable to depart within the time
specified. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007). (Alen
not advised of the voluntary departure period by her attorney.) Further,
an alien who fails to post the voluntary departure bond required by
§ 240B(b)(3) of the Act is not subjuect to the penalties for
failure to depart within the time specified for voluntary departure.
Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006).
17. A motion to reopen to apply for asylum must comply
with additional requirements and reasonably explain the alien's failure
to do so during the proceedings. 8 C.F.R. § 1208.4(b)(3)-(4);
Matter of R-R-, 20 I&N Dec. 547 (1992); see also INS v. Doherty,
502 U.S. 314 (1992); INS v. Wang, 450 U.S. 139 (1981); Matter of Lam,
14 I&N Dec. 98 (BIA 1972); INS v. Abudu, 485 U.S. 94 (1988); Matter
of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff'd, 692 F.2d
595 (9th Cir. 1982); Matter of Jean, 17 I&N Dec. 100 (BIA 1979).
Motions based on a request for asylum, withholding,
and/or CAT relief are not subject to the same time and numerical limitations
set forth in 8 C.F.R. § 1003.23(b)(1), where the motion is premised
on changed country conditions arising in the country of nationality
or the country to which removal has been ordered, if such evidence
is material and was not available and could not have been discovered
or presented at the previous proceeding. 8 C.F.R. § 1003.23(b)(4)(i).
Stays are not automatic for this type of motion to reopen, though
the alien may request a stay, and if granted by the IJ, cannot be
removed pending disposition of the motion. Id. NOTE: If the original
asylum application was denied based upon a finding that it was frivolous,
then the alien is ineligible to file either a motion to reopen or
reconsider, or for a stay of removal.
18. An alien whose case was administratively closed
pursuant to the ABC settlement terms can obtain reopening of proceedings
even where no request has been made to reinstate appeal before the
BIA or to recalendar case before an Immigration Judge. Matter of Gutierrez-Lopez,
21 I&N Dec. 479 (BIA 1996).
Under prior section 212(c), certain lawful permanent
residents who had departed the U.S. and were seeking readmission could
apply for a waiver of inadmissibility in certain circumstances. This
waiver was later limited by provisions of IMMACT 1990 and AEDPA §
440(d); and was eventually repealed by IIRIRA as of April 1, 1997,
when it was replaced with § 240A(a) cancellation of removal.
In Deportation Proceedings: Motion to Reopen under
a. As stated above, the Anti-terrorism and Effective
Death Penalty Act of 1996 (AEDPA), enacted on April 24, 1996, significantly
restricted the availability of section 212(c) relief. Under the Attorney
General's decision in Matter of Soriano, 21 I&N Dec. 516 (BIA
1996; A.G. 1997), the AEDPA restrictions on section 212(c) relief
were held to apply to all 212(c) applications filed prior to the April
24, 1996, enactment date.
However, the Attorney General also directed the Immigration
Judges to reopen cases upon petition filed by aliens who conceded
deportability prior to April 24, 1996, for the limited purpose of
allowing them to contest deportability. See 8 C.F.R. § 1212.3(g)
(Soriano rule). This rule applies to both plea agreements and convictions
following a trial. The deadline to file a motion to reopen under the
Soriano rule was July 23, 2001. See 8 C.F.R. § 1003.44(f) (2004).
In Removal Proceedings: Special Motion to Reopen
under 8 C.F.R. § 1003.44.
b. In 2001, the U.S. Supreme Court issued INS v.
St. Cyr, 533 U.S. 289 (2001). In St. Cyr, aliens in removal proceedings
who received convictions through plea agreements, and who, notwithstanding
those convictions, would have been eligible for 212(c) relief at the
time of their plea under the law then in effect were found to be eligible
for 212(c) relief. In 2004, regulations were promulgated to reflect
the Court’s decision in St. Cyr.
Individuals who pleaded guilty or nolo contendre
to certain crimes before April 1, 1997, may pursue a special motion
to reopen to seek section 212(c) relief under the provisions of 8
C.F.R. § 1003.44. This motion is available to certain eligible
aliens who were previously lawful permanent residents, who are subject
to an administratively final order of deportation or removal, and
who are eligible to apply for relief under former section 212(c) of
the Act and 8 C.F.R. § 1212.3 with respect to convictions obtained
by plea agreements reached prior to April 1, 1997. NOTE: The deadline
to file a special motion under this section was April 26, 2005, and
an eligible alien is limited to one special motion under this section.
See 8 C.F.R. § 1003.44(h).
The alien has the burden of establishing eligibility
under this section. 8 C.F.R. § 1003.44(b).
General eligibility requirements that alien must establish:
1. Prior lawful permanent resident status and is
now subject to a final order of deportation or removal;
2. Agreed to plead guilty or nolo contendre to an
offense rendering the alien deportable or removable, pursuant to a
plea agreement made before April 1, 1997;
3. Had seven consecutive years of lawful unrelinquished
domicile in the United States prior to the date of the final administrative
order of deportation or removal; and
4. Is otherwise eligible to apply for section 212(c)
relief under the standards that were in effect at the time the alien’s
plea was made, regardless of when the plea was entered by the court.
See 8 C.F.R. 1003.44(b)(1)-(4).
There are certain procedural requirements for filing
a motion under this section. The motion must be filed with the IJ
or BIA, whichever last held jurisdiction. The alien is required to
submit a copy of the Form I-191 application, and supporting documents.
The motion must contain the notation “special motion to seek
section 212(c) relief.” DHS has 45 days from the date of the
filing of the motion to respond. No filing fee is required for this
motion, although if it is later granted, and the alien has not previously
filed an application for section 212(c) relief, the alien will be
required to submit the appropriate fee receipt at the time the alien
files the Form I-191 with the immigration court. In addition, the
filing of a motion under this section has no effect on the time and
number limitations for motions to reopen or reconsider that may be
filed on grounds unrelated to section 212(c). See generally 8 C.F.R.
19. Pursuant to section 240A(d)(1) of the Act, a
motion to reopen proceedings for consideration or further consideration
of an application for relief under section 240A(a) (cancellation of
removal for certain permanent residents) or 240A(b) (cancellation
of removal and adjustment of status for certain nonpermanent residents)
may be granted only if the alien demonstrates that he or she was statutorily
eligible for such relief prior to the service of a notice to appear,
or prior to the commission of an offense referred to in section 212(a)(2)
of the Act that renders the alien inadmissible or removable under
sections 237(a)(2) or (a)(4) of the Act, whichever is earliest. 8
20. A properly filed motion to reopen for adjustment
of status based on a marriage entered into after the commencement
of proceedings may be granted in the exercise of discretion, notwithstanding
the pendency of a visa petition filed on the alien's behalf, where:
(1) the motion to reopen is timely filed; (2) the motion is not numerically
barred by the regulations; (3) the motion is not barred by Matter
of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural
grounds; (4) clear and convincing evidence is presented indicating
a strong likelihood that the marriage is bona fide; and (5) the Service
does not oppose the motion or bases its opposition solely on Matter
of Arthur, 20 I&N Dec. 475 (BIA 1992) (holding that motions to
reopen to apply for adjustment of status under section 245 of the
Act will not be granted without an approved visa petition on the alien’s
behalf). Matter of Velarde, 23 I&N Dec. 253 (BIA 2002) (modifying
Matter of H-A-, 22 I&N Dec. 728 (BIA 1999), and Matter of Arthur,
supra). See also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (determining
that Matter of Velarde permits granting of a motion to reopen in these
circumstances as a matter of discretion, unless barred on procedural
grounds); Malhi v. INS, 336 F.3d 989 (9th Cir. 2003) (citing Velarde
with approval, upholding denial of motion for failure to make prima
facie showing of valid marriage).
21. An Immigration Judge may reinstate voluntary
departure in a removal proceeding that has been reopened for a purpose
other than solely making an application for voluntary departure if
reopening was granted prior to the expiration of the original period
of voluntary departure. In no event can the total period of time,
including any extension, exceed 120 days or 60 days as set forth in
section 240B of the Act. 8 C.F.R. § 1240.26(h). Note: In removal
proceedings, there are statutory and regulatory periods prescribed
for voluntary departure. There is no specific statutory or regulatory
authority for either an Immigration Judge or the BIA to extend the
time of voluntary departure. See 8 C.F.R. § 1240.26(f). The BIA
decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977),
which permitted tolling of the voluntary departure period on appeal,
was rendered in the absence of such periods, and was found to be superceded
by statute in Matter of A-M-, 23 I&N Dec. 737 (BIA 2005).
22. An alien ordered removed in absentia may rescind
a. upon a motion to reopen filed within 180 days
after the date of the order of removal or deportation if the alien
demonstrates that the failure to appear was because of exceptional
b. upon a motion to reopen filed at any time if the
(1) that he or she did not receive notice in accordance
with INA § 239(a)(1) or (2) [removal proceedings], INA §
242B(a)(2) [deportation proceedings], or;
(2) the alien demonstrates that he or she was in
Federal or State custody and the failure to appear was through no
fault of the alien.
See Former INA § 242B(c)(3) [OSC]; INA §
240(b)(6)(C) [NTA]; 8 C.F.R. § 1003.23(b)(4)(ii) [removal proceedings]
and 1003.23(b)(4)(iii) [deportation/exclusion proceedings].
23. A motion to rescind an in absentia order of deportation
in exclusion proceedings shall be denied unless the alien provides
a reasonable explanation for his or her failure to appear. See Matter
of S-A-, 21 I&N Dec. 1050 (BIA 1998) (holding that traffic is
not a reasonable cause to warrant the reopening of exclusion proceedings);
compare with De Jiminez v. Ashcroft, 370 F.3d 783 (8th Cir. 2004)
(finding that BIA abused its discretion in refusing to consider the
denial of alien’s motion to reopen where alien had difficulty
locating building and was caring for a sick child given the fact that
alien gave “a multitude of factors contributing to her failure
24. For deportation proceedings where notice of the
hearing was served or attempted service was made prior to June 13,
1992, and in cases where the notice requirements were not followed
in section 242B of the Act: Where an alien can demonstrate reasonable
cause for his or her failure to appear, section 242(b) of the Act
guarantees his right to a hearing. A prima facie showing of eligibility
for relief is not a prerequisite to reopening exclusion proceedings
following an in absentia hearing. Matter of Ruiz, 20 I&N 91 (BIA
25. The BIA held that Matter of Shaar, 21 I&N
Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir. 1998) is not applicable
to an alien who was ordered deported at an in absentia hearing and
has therefore not remained beyond a period of voluntary departure;
consequently, the proceedings may be reopened upon the filing of a
timely motion showing exceptional circumstances for failure to appear.
Matter of Singh, 21 I&N Dec. 998 (BIA 1997); Matter of Ruiz, 20
I&N Dec. 91 (BIA 1989) (in exclusion case, motion to reopen in
absentia hearing granted upon a showing that his failure to appear
was caused by illness; did not need to make a prima facie showing
of eligibility for relief on the merits).
26. The proper filing of the motion to reopen an
order entered in absentia stays the removal or deportation of the
alien pending disposition of the motion by the Immigration Judge.
INA § 242B(c)(3) (prior); INA § 240(b)(5)(C) and 240(c)(7)(C)(iii);
8 C.F.R. §§ 3.23(b)(4)(iii)(C) (2000) 1003.6(b), 1003.23(b)(4)(iii)(C)
(2007) and § 242.22 (1997). The IIRIRA added the words "by
the immigration judge." Compare prior INA § 242B(c)(3) with
INA § 240(b)(5)(C). Before the IIRIRA's amendment, the filing
of a motion to reopen an in absentia deportation order stayed the
order pending a decision by the Board as well as pending a decision
by the Immigration Judge. Matter of Rivera-Claros, 21 I&N Dec.
232 (BIA 1996). The regulations state that there is no automatic stay
of removal or deportation pending the Board's determination of other
motions to reopen. 8 C.F.R. §§ 1003.2(f) and 1003.6(b).
A respondent appealing an Immigration Judge's denial of a motion to
reopen can file a request for a stay with the Board. Some courts have
held, however, that failure to grant a stay pending determination
of a motion to reopen may raise constitutional concerns. See Castandea-Suarez
v. INS, 993 F.2d 142 (7th Cir. 1993); Gutierrez-Rogue v. INS, 954
F.2d 769 (D.C. Cir. 1992).
27. The term "exceptional circumstances"
refers to exceptional circumstances (such as serious illness of the
alien, or serious illness or death of the alien's spouse, child or
parent, but not including less compelling circumstances) beyond the
control of the alien. INA § 240(e)(1); 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1).
The ineffective assistance of counsel constitutes
"exceptional circumstances" excusing the failure to appear.
Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). Immigration Judge's
should always read and issue all warnings, advisals, dates for applications
as well as the penalties that apply should applications not be timely
filed directly to the alien through an interpreter so that there is
no question in the mind of the alien what must be done in his or her
case. This eliminates many "ineffective assistance" issues
that may otherwise result in remands.
a. An alien seeking to reopen in absentia proceedings
based on his or her unsuccessful communications with his or her attorney
did not establish exceptional circumstances pursuant to section 242B(c)(3)(A)
of the Act when she failed to satisfy all of the requirements for
a claim of ineffective assistance of counsel as set out in Matter
of Lozada, 19 I&N Dec. 637 (BIA 1988). Matter of Rivera-Claros,
21 I&N Dec. 599 (BIA 1996); cf. also Matter of A-A-, 22 I&N
Dec. 140 (BIA 1998) (a claim of ineffective assistance of counsel
does not constitute an exception to the 180-day statutory limit for
the filing of a motion to reopen to rescind an in absentia order of
deportation on the basis of exceptional circumstances); Matter of
Lei, 22 I&N Dec. 113 (BIA 1998) (same).
A motion to reopen or reconsider based upon a claim
of ineffective assistance of counsel requires:
(1) that the motion be supported by an affidavit
of the allegedly aggrieved respondent setting forth in detail the
agreement that was entered into with counsel with respect to the actions
to be taken and what representations counsel did or did not make to
the respondent in this regard;
(2) that counsel whose integrity or competence is
being impugned be informed of the allegations leveled against him
or her and be given an opportunity to respond, and;
(3) that the motion reflect whether a complaint has
been filed with appropriate disciplinary authorities with respect
to any violation of counsel's ethical or legal responsibilities, and
if not, why not.
Matter of Lozada 19 I&N Dec. 637, 639 (BIA 1988).
This legal framework was reaffirmed by the Board
in Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), in light of circuit
court precedent and lack of direct ruling on the issue by the Supreme
Court in an immigration context. Several circuits have upheld the
Lozada requirements. See, e.g., Lara v. Trominski, 216 F.3d 487 (5th
Cir. 2000); Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001); Melkonian
v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) (generally citing with
approval, including requirement that prejudice be shown); Hamid v.
Ashcroft, 336 F.3d 465 (6th Cir. 2003); Azanor v. Ashcroft, 364 F.3d
1013 (9th Cir. 2004) (requires affidavit regarding attorney conduct
where facts are not plain on the record, and also prejudice must be
shown); Dakane v. U.S. Attorney General, 399 F.3d 1269 (11th Cir.
2005) (citing with approval, including requirement that prejudice
must be shown); Hernandez-Moran v. Gonzales, 408 F.3d 496 (8th Cir.
2005); Zheng v. U.S. Dept. of Justice, 409 F.3d 43 (2d Cir. 2005);
Gbaya v. US Attorney General, 342 F.3d 1219 (11th Cir. 2003) (holding
that strict compliance with Lozada necessary to establish an ineffective
assistance of counsel claim).
Some cases have considered limitations on the reach
of Lozada. See, e.g., Castillo-Perez v. INS, 212 F.3d 518 (9th Cir.
2000) (Lozada requirements “not sacrosanct,” substantial
compliance may be sufficient); Saakian v. INS, 252 F.3d 21 (1st Cir.
2001) (agrees with 9th Cir. that requirements may not be “arbitrarily”
applied); Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) (upholds Lozada
requirements, but failure to file bar complaint not fatal if reasonably
explained); Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (stating
that alien need only show “plausible grounds” for relief
with regard to prejudice requirement).
b. An alien's failure to appear at his or her rescheduled
deportation hearing due to his inability to leave his or her employment
on a fishing vessel was not an "exceptional circumstance."
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996).
28. A motion to reopen exclusion hearings on the
basis that the Immigration Judge improperly entered an order of exclusion
in absentia may be filed at anytime and must be supported by evidence
that the alien had reasonable cause for his or her failure to appear.
INA § 212(a)(6)(B); 8 C.F.R. § 1003.23(b)(4)(iii)(B).
29. Cases which have considered what constitutes
"reasonable cause" for failure to appear include: Hernandez-Vivas
v. INS, 23 F.3d 1557 (9th Cir. 1994); Maldonado-Perez v. INS, 865
F.2d 328 (D.C. Cir. 1989); Matter of Nafi, 19 I&N Dec. 430 (BIA
1987). Remember that "reasonable cause" is different from
"exceptional circumstances" which are defined by statute.
See Matter of S-A-, 21 I&N Dec. 1050 (BIA 1998).
30. A motion to reopen exclusion proceedings decided
in absentia is properly granted where the applicants met the requirements
for an ineffective assistance of counsel claim set in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988). The attorney of record failed to give
the applicants notice of their hearing. Matter of N-K and V-S-, 21
I&N Dec. 879 (BIA 1997).
C. COMMONALITIES OF MOTIONS TO REOPEN AND
1. The Immigration Judge is authorized to reopen
or reconsider his or her decision, on his or her own initiative, or
upon motion by either party, at any time before jurisdiction has vested
in the BIA through the filing of a notice of appeal or certification
of the case to it. INA § 240(c)(5)-(7) of the Act; 8 C.F.R. §§
1003.23(b)(1) (2007) and 242.22 (1997).
2. Where the BIA dismisses an appeal from the decision
of an Immigration Judge solely for lack of jurisdiction, without adjudication
on the merits, the attempted appeal was nugatory and the decision
of the Immigration Judge remained undisturbed. Thereafter, if a motion
is made to reopen or reconsider, there is no reason why the Immigration
Judge should not adjudicate it as he does in other cases where there
was no appeal from his or her prior order. Matter of Mladineo, 14
I&N Dec. 591, 592 (1974).
3. The Board's power to reopen or reconsider cases
sua sponte is limited to exceptional circumstances and is not meant
to cure filing defects or circumvent the regulations, where enforcing
them might result in hardship. 8 C.F.R. § 1003.2(a); Matter of
J-J-, 21 I&N Dec. 976 (BIA 1997).
4. Motions to reopen or reconsider are subject to
the requirements and limitations set forth in 8 C.F.R. §§
1003.23 (2007) and 242.22 (1997).
5. Motions to reopen or reconsider a decision of
the Immigration Judge must be filed with the Immigration Court having
administrative control over the Record of Proceedings (ROP). 8 C.F.R.
§§ 1003.23(b)(1)(ii), 1003.31(a). The regulations create
an exception for the filing of certain motions under NACARA and the
LIFE Act Amendments. See 8 C.F.R. § 1003.43. Such motions are
to be adjudicated under applicable statutes and regulations governing
motions to reopen. Id.
6. A motion is deemed filed when it is received at
the BIA, irrespective of whether the alien is in custody. Matter of
J-J-, 21 I&N Dec. 976 (BIA 1997).
7. A motion to reopen or reconsider must be in writing
and signed by the affected party or the attorney or representative
of record, if any, and submitted in duplicate if addressed to an Immigration
Judge. 8 C.F.R. § 1003.23(b)(1)(i)-(ii).
8. A motion to reopen or a motion to reconsider,
and any submission made in conjunction with such motion must be in
English or accompanied by a certified English translation. 8 C.F.R.
§§ 1003.2(g)(1) and 1003.23(b)(1)(i).
9. Payment of the required fee may be waived by the
Immigration Judge in any case in which the alien is unable to pay
the prescribed fee upon a showing of the inability to pay. 8 C.F.R.
§ 1103.7(c) and 1003.24(d). To qualify for such waiver, the alien
must submit an executed affidavit or unsworn declaration made pursuant
to 28 U.S.C. § 1746 substantiating the alien’s inability
to pay the fee. 8 C.F.R. § 1003.24(d). See also Matter of Alejandro,
19 I&N Dec. 75 (BIA 1984); Matter of Chicas, 19 I&N Dec. 114
(BIA 1984). If the request for a fee waiver is denied, the application
or motion will not be deemed properly filed. 8 C.F.R. § 1003.24(d).
Pursuant to Interim Operating Policies and Procedures Memorandum 06-01,
Fee Waiver Form, June 28, 2006, fee waiver decisions must be in writing.
For an example of a standard fee waiver order, see Attachment A to
OPPM No. 06-01.
10. A motion to reopen or a motion to reconsider
shall include proof of service on the opposing party of the motion
and all attachments. 8 C.F.R. §§ 1003.2(g)(1) and 1103.5(a).
11. In general, the fee for filing a motion to reopen
or reconsider is $110. 8 C.F.R. § 1103.7(b)(2); 1003.8 (fees
pertaining to the BIA’s jurisdiction); 1003.24 (fees pertaining
to the Immigration Court’s jurisdiction). In accordance with
8 C.F.R. § 1003.24(b)(2)(i)-(viii), a fee is not required for:
a. A motion to reopen based solely on an application
for relief that does not require a fee;
b. A motion to reconsider that is based exclusively
on a prior application for relief that did not require a fee;
c. A motion filed while proceedings are already pending
before the Immigration Court;
d. A motion requesting only a stay of removal, deportation,
e. A motion to reopen a deportation or removal order
entered in absentia if the motion is filed pursuant to section 242B(c)(3)(B)
of the Act, as it existed prior to April 1, 1997, or section 240(b)(5)(C)(ii)
of the Act, as amended;
f. Any motion filed by the DHS;
g. A motion agreed upon by all parties and jointly
h. A motion filed under law, regulation, or directive
that specifically does not require a filing fee.
12. A motion to reopen or reconsider, submitted with
the required fee, may not be rejected as inadequate without a written
adjudication. The written adjudication must sufficiently state the
basis for the decision, so that an appellate tribunal can review it.
Matter of Felix, 14 I&N Dec. 143 (1972); Matter of M-P-, 20 I&N
Dec. 786 (BIA 1994).
13. If an alien files a motion asking for his or
her case to be reopened or reconsidered while the case is on appeal,
the BIA may deem it a motion to remand for further proceedings before
the Immigration Judge from whose decision the appeal was taken. 8
C.F.R. § 1003.2(c)(4).
14. Motions to reopen or reconsider must be filed
with the Immigration Court that has administrative control over the
Record of Proceeding. 8 C.F.R. § 1003.23(b)(1)(ii). A certificate
of service shall accompany the motion evidencing service on the opposing
party. Id. If the moving party, other than the Service, is represented,
a Form EOIR-28 must be filed with the motion. Id. The motion also
must be accompanied by a fee receipt. Id. The Court may set and extend
time limits for replies to motions to reopen or reconsider. 8 C.F.R.
§ 1003.23(b)(1)(iii). The motion shall be deemed “unopposed”
unless timely response is made; however, the Court’s decision
to grant or deny the motion is discretionary. Id.
15. The Immigration Judge may set and extend time
limits for replies to motions to reopen or reconsider. 8 C.F.R. §
16. A motion to reopen or reconsider shall be deemed
unopposed unless a timely response is made. 8 C.F.R. §§
1003.23(a) and (b). An unopposed motion may still be denied if the
requisite showings are not made.
17. A motion to reopen or a motion to reconsider
shall not be made by or on behalf of a person who is the subject of
deportation, exclusion, or removal proceedings subsequent to his or
her departure from the United States. 8 C.F.R. § 1003.2(d); Matter
of Crammond, 23 I&N Dec. 179 (BIA 2001); Matter of Estrada, 17
I&N Dec. 187 (1979); Matter of Rangel-Cantu, 12 I&N Dec. 73
(BIA 1967), overruled in part by Matter of Ku, 15 I&N Dec. 712
(BIA 1976) (regarding Board’s jurisdiction over interlocutory
appeals). Any departure from the United States, including the deportation
or removal of a person who is the subject of removal, deportation
or exclusion proceedings, occurring after the filing of a motion to
reopen or a motion to reconsider, shall constitute a withdrawal of
such motion. 8 C.F.R. § 1003.2(d); Matter of Palma, 14 I&N
Dec. 486 (BIA 1973) (departure executed outstanding deportation order);
Mansour v. Gonzales, 470 F.3d 1194 (6th Cir. 2006) (Board had no jurisdiction
to grant respondent’s motion to reopen where respondent left
the U.S. under a final deportation order). Some circuit courts have
entertained motions to reopen made after the alien's deportation on
the ground that the alien's departure was not legally executed. See
Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales
v. INS, 645 F.2d 819 (9th Cir. 1981). Courts have held in the excepted
case, the alien may be readmitted with the same status he or she held
prior to departure, and will be permitted to pursue any administrative
and judicial remedies to which he or she is entitled. Mendez v. INS,
563 F.2d 956 (9th Cir. 1977).
18. Motions to reopen or reconsider shall state whether
the validity of the deportation, exclusion, or removal order has been
or is the subject of any judicial proceeding and, if so, the nature
and date thereof, the court in which the proceeding took place or
is pending, and its result or status. 8 C.F.R. §§ 1003.2(e)
and 1003.23(b)(1)(i); Matter of Wong, 13 I&N Dec. 258 (BIA 1969)
(motion denied as insubstantial and dilatory). In any case in which
a deportation, or exclusion, or removal order is in effect, any motion
to reopen or reconsider such order shall include a statement by or
on behalf of the moving party declaring whether the subject of the
order is also the subject of any pending criminal proceeding under
the Act, and if so, the status of that proceeding. Id.
19. If a motion to reopen or reconsider seeks discretionary
relief, the motion shall include a statement by or on behalf of the
moving party declaring whether the alien for whose relief the motion
is being filed is subject to any pending criminal prosecution and,
if so, the nature and current status of that prosecution. 8 C.F.R.
20. All fees for the filing of motions and applications
in connection with proceedings before the Court are paid to the DHS.
The Court does not collect fees. 8 C.F.R. § 1003.24; 8 C.F.R.
§ 103.7 (DHS requirements for filing of fees). If an individual
files a motion to reopen or reconsider concurrently with an application
for relief for which a fee is chargeable, the individual initially
must pay only the fee required for the motion to reopen or reconsider,
unless a fee waiver has been granted. 8 C.F.R. § 1003.24(c)(2).
The fee receipt shall accompany the motion. Id. If the motion to reopen
or reconsider is granted, the individual then must pay the fee required
for the underlying application for relief to the DHS within the time
specified by the Court, unless a fee waiver has been granted. Id.
21. If the motion is opposed, the Immigration Judge
in ruling on the motion must state in writing, however briefly, the
reasons for his or her decision. Matter of Correa, 19 I&N Dec.
130 (BIA 1984). The ruling on the motion shall be in written form
fully explaining the reasons for the decision. See Matter of M-P-,
20 I&N Dec. 786 (BIA 1994).
22. The basis for denial of a motion to reopen or
reconsider must be stated with specificity. Matter of Felix, 14 I&N
Dec. 143 (BIA 1982); Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir.
1985) (must clearly articulate the factors considered and the basis
for its discretionary determination). In exercising its discretion
the court must show that it has considered all factors, both favorable
and unfavorable, and must state its reasons and show proper consideration
of all factors when weighing equities and denying relief.
D. MOTION FOR STAY OF DEPORTATION/REMOVAL
1. Except where a motion is filed pursuant to INA
§ 240(b)(5)(C)(i) or (ii), or former 242B(c)(3), the filing of
a motion to reopen or a motion to reconsider shall not stay the execution
of any decision made in the case. 8 C.F.R. §§ 1003.2(f),
242.22 (1997). Execution of such decision shall proceed unless a stay
of execution is specifically granted by the Board, the Immigration
Court, or an authorized officer of the DHS. 8 C.F.R. §§
1003.2(f), 1003.6(b), 1003.23(b)(1)(v) (2007), 242.22 (1997); Matter
of Valiyee, 14 I&N Dec. 710 (BIA 1974). The Immigration Judge
may stay deportation pending his or her determination of the motion
and also pending the taking and disposition of an appeal from such
determination. 8 C.F.R. §§ 242.22 and 243.4 (1997); Matter
of Correa-Garces, 20 I&N Dec. 451 (BIA 1992); Matter of Mladineo,
14 I&N Dec. 591 (BIA 1974) (BIA took case on certification and
denied motion to reopen). The burden of proof for obtaining a stay
of deportation is upon the alien who must show that there is a likelihood
of success of the underlying basis for reopening.
2. There is no right to an evidentiary hearing on
the merits of the motion. 8 C.F.R. §§ 1003.23(b) (“a
motion to reopen shall state new facts that will be proven at a hearing
to be held if the motion is granted”); INS v.Wang, 450 U.S.
139 (1981); Urbano de Malaluan v. INS, 577 F.2d 589 (9th Cir. 1980);
see also Matter of Rivera, 21 I&N Dec. 599 (BIA 1996) (noting,
in an ineffective assistance of counsel claim pursuant to Lozada,
that there is a preference to make determinations on motions “to
a great extent” on the documentary evidence in order to avoid
an added burden on the parties and the court).
3. An alien who files a motion and submits the required
fee, or a fee waiver, is entitled to an adjudication of the request.
Matter of Felix, 14 I&N Dec. 143 (BIA 1972).
E. MOTION TO REMAND
1. Motions to remand are not expressly addressed
by the Act or the regulations. Such motions are commonly addressed
to the BIA. Motions to remand are an accepted part of appellate civil
procedure and serve a useful function. Matter of Coelho, 20 I&N
Dec. 464 (BIA 1992).
2. A motion to reopen a decision rendered by an Immigration
Judge that is pending when an appeal is filed, or that is filed while
an appeal is pending before the Board, may be deemed a motion to remand
for further proceedings before the Immigration Judge from whose decision
the appeal was taken. 8 C.F.R. 1003.2(c)(4).
3. The number and time limits do not apply to motions
filed with the Board while an appeal is pending. A motion that asks
the BIA to order the Immigration Judge to reopen his or her decision
still can be made at any time until the BIA renders its decision on
the underlying appeal and is considered a motion to remand. 8 C.F.R.
§ 1003.2(b)(1) and 1003.2(c)(4).