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Related Pages:
Rescinding an In Absentia Order of Removal (Practice Advisory from AILF, 5-20-02, Amended 9-15-04)
Protecting Your Client When Prior Counsel Was Ineffective (Practice Advisory from AILF, 4-02)
On April 29, 1996, the Executive Office for Immigration Review (EOIR), the agency which manages the Immigration Courts and the Board of Immigration Appeals (BIA), issued regulations which "streamline motions and appeals practice before the (BIA)". The new regulations substantially diminish the rights of persons under deportation and exclusion proceedings. They became effective on July 1, 1996.
Similarly, let's suppose that after the judge's denial, the federal courts grant an asylum request with facts similar to that of the applicant. The applicant could submit a Motion to Reconsider his case to EOIR in light of the new court decision.
The regulations limit a person to a single motion to reopen and a single motion to reconsider during the entire deportation/exclusion proceedings. Currently, there is no limit to the number of motions that can be filed or time limits on when they may be filed.
The regulations provide that, with three exceptions, a Motion to Reopen must be filed within 90 days of the decision of the Immigration Judge (IJ) or the BIA, on or before September 30, 1996, or whichever is later. The three exceptions involve (1) requests for asylum or withholding of deportation when conditions in the applicant's home country change materially after an administrative decision; (2) in the case of an in absentia hearing, a motion to reopen must be filed within 180 days and the final order must show that the failure to appear was because of exceptional circumstances beyond the control of the applicant; or (3) if the motion is jointly submitted by both the applicant and the INS.
The present rule which prohibits appeals of orders in in absentia hearings is retained. In order to challenge a decision in such a hearing, the applicant must file a motion to reopen before the IJ. If the IJ denies the motion, the applicant may appeal the denial to the BIA. In such a case, the applicant has used his one and only motion to reopen his case.
For purposes of relief from deportation for longtime permanent residents (commonly referred to as "212C relief"), the term "lawfully admitted for permanent residence" is defined. One's period of permanent residence ends when there is a final administrative order of exclusion or deportation. This rule was necessary to establish a single nationwide standard regarding this issue.
The 1996 immigration law codified these regulatory changes into law.
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