BIA Finds No Conflict Between Regulation’s Time Limits on Motions to Reopen and INA § 242B(e)(1)’s Limit on Discretionary Relief.
(1) The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulations.
(2) The 5-year limitation on discretionary relief for failure to appear at deportation proceedings under former section 242B(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(1) (1994), is not in conflict with, and does not provide an exception to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1).
The Board of Immigration Appeals (BIA or Board) held in Matter of Monges-Garcia, 25 I. & N. Dec. 246 (B.I.A. May 20, 2010), that (1) the 90-day time limitation for filing a motion to reopen in 8 CFR § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulation, and (2) the five-year limitation on discretionary relief for failure to appear at deportation proceedings under former INA § 242B(e)(1) (1994) is not in conflict with, and does not provide an exception to, that 90-day deadline for filing a motion to reopen. The matter was before the BIA following the U.S. Court of Appeals for the Ninth Circuit’s remand of the Board’s prior decision in the matter to permit the Board to answer these questions, Monges-Garcia v. Gonzales, 228 Fed. Appx. 665 (9th Cir. 2007).
The respondent is a native and citizen of Honduras who entered the U.S. without inspection on February 16, 1994, after which deportation proceedings were initiated against her with the issuance of an order to show cause and notice of hearing (Form I-221). When the respondent failed to appear for her scheduled hearing on October 28, 1994, the immigration judge (IJ) ordered her deported in absentia. On April 7, 2003, the respondent filed a motion to reopen her deportation proceedings, seeking to apply for adjustment of status based on her marriage to a U.S. citizen. The IJ denied the motion, finding that the respondent did not establish that her failure to appear resulted from a lack of notice or exceptional circumstances as required by former INA § 242B(e)(1) and that her motion was time barred under the regulations. The Board upheld this decision, and the respondent sought review in the Ninth Circuit, which remanded.
Former INA § 242B(e)(1), which was added by § 545(a) of the Immigration Act of 1990 (IMMACT), [FN3] provides as follows: At deportation proceedings.–Any alien against whom a final order of deportation is entered in absentia under this section and who, at the time of the notice described in subsection (a)(2), was provided oral notice, either in the alien’s native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (f)(2)) to attend a proceeding under section 242, shall not be eligible for relief described in paragraph (5) for a period of 5 years after the date of the entry of the final order of deportation.
Listed in paragraph (5) are voluntary departure under INA § 242(b)(1) [8 USCA § 1252(b)(1)], suspension of deportation or voluntary departure under INA § 244 [8 USCA § 1254], and adjustment or change of status under INA §§ 245, 248, or 249 [8 USCA §§ 1255, 1258, or 1259]. In conjunction with this and other provisions in § 242B relating to the required notice of deportation hearings that must be given to aliens and the consequences for their failure to appear, Congress mandated that the Attorney General issue implementing regulations within six months of enactment of IMMACT regarding the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, including a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions. Accordingly, the Department of Justice published a final rule in 61 Fed. Reg. 18900 (Apr. 29, 1996), effective July 1, 1996. The regulation, now at 8 CFR § 1003.23(b)(1), provides that, subject to certain exceptions, a party may file only one motion to reconsider and one motion to reopen proceedings, which must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.
The BIA, in an opinion written by Board Member Charles K. Adkins-Blanch and joined by Board Member John H. Guendelsberger and Temporary Board Member Jean C. King, found that, pursuant to the time limitations imposed by the regulations, a motion to reopen a final administrative order of removal, deportation, or exclusion entered on or after the July 1, 1996, effective date is subject to the 90-day deadline because 90 days after the date of the order would be later than September 30, 1996. In addition, the Board said, the regulations make clear that any motion to reopen such a final order entered before July 1, 1996, must necessarily be filed by September 30, 1996, which is the later deadline in that case. Since these regulations were promulgated pursuant to Congress’ directive in conjunction with its enactment of the enforcement provisions of INA § 242B setting forth the consequences of failure to appear at deportation proceedings, the Board concluded that (1) Congress clearly intended that the time and number limitations on motions would further the statute’s purpose of bringing finality to immigration proceedings and (2) therefore, the 90-day time limitation for filing a motion to reopen contained in 8 CFR § 1003.23(b)(1) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or *1052 after the 1996 promulgation of the regulations. Thus, since the respondent is subject to the current version of 8 CFR § 1003.23(b)(1), which required her to file her motion to reopen by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994, and her motion to reopen was not submitted until April 7, 2003, the Board found her motion untimely filed and therefore properly denied by the IJ.
Turning to the Ninth Circuit’s second question, the Board found no conflict between the regulation and INA § 242B(e)(1), both of which emanated from Congress’ concern over delays in immigration proceedings. Since the regulations carry out Congress’ intent, the Board saw no inconsistency between them and the statute. The Board rejected the respondent’s contention that INA § 242B(e)(1)’ s five-year limitation on an alien’s eligibility for discretionary relief as a result of failure to appear at deportation proceedings is an exception to the 90-day deadline in 8 CFR § 1003.23(b)(1). The Board explained that the five-year bar is applicable only to aliens who failed to appear for a hearing, including those who left the U.S. and subsequently returned, whereas the general time limitation on filing a motion contained in 8 CFR § 1003.23(b)(1) is an independent provision that applies to any alien who has been ordered excluded, deported, or removed. These provisions, the Board said, have separate restrictions for different purposes and are not at odds with one another. Moreover, since Congress intended to prevent aliens from obtaining benefits as a result of the mere accrual of time after the entry of a final administrative order, the Board opined that it would be inconsistent with that intent to allow an alien who avoided deportation for more than five years after failing to appear for a hearing to be exempt from the regulatory time limitations on motions to reopen. Thus the Board concluded that aliens must comply with the applicable provisions of both 8 CFR § 1003.23(b)(1) and INA § 242B(e)(1) in order to apply for adjustment of status.
Since the respondent’s motion to reopen was filed well after the regulatory deadlines and did not qualify for any of the permissible exceptions to the time limits on motions to reopen, the Board upheld the IJ’s decision that the respondent was precluded from reopening her proceedings. Therefore, the appeal was dismissed.
