Matter of Mancera-Monroy

A motion to reopen deportation proceedings conducted in absentia

pursuant to section 242(b) of the Immigration and Nationality Act,

8 U.S.C. § 1252(b)(1994), that demonstrates a lack of notice of the

scheduled hearing is excepted from the regulatory time limitations

on motions.

Antonio R. Espinosa, Esquire, for the respondent

Kenneth M. Muir, Assistant District Counsel, for the Immigration and

Naturalization Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman;

VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,

ROSENBERG, MATHON, GUENDELSBERGER, JONES, GRANT, and

SCIALABBA, Board Members

SCHMIDT, Chairman:

In an order dated July 29, 1997, an Immigration Judge denied the

respondent’s motion to reopen deportation proceedings, which had

been conducted in absentia pursuant to section 242(b) of the

Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1994). The

respondent has filed a timely appeal from that order. For the

following reasons, we will sustain the respondent’s appeal, vacate

the Immigration Judge’s decision, and remand the record to the

Immigration Court for further proceedings consistent with this

opinion.

The record reveals that on July 17, 1987, the respondent, a native

and citizen of Colombia, entered the United States near Brownsville,

Texas, without inspection. The Immigration and Naturalization

Service personally served the respondent with an Order to Show Cause

and Notice of Hearing (Form I-221) on July 19, 1987, and

subsequently released him from custody. When the respondent failed

to appear for his deportation hearing on October 27, 1987, the

Immigration Judge found him deportable and ordered him deported in absentia pursuant to section 242(b) of the Act. 1 Nearly 10 years

later, on July 9, 1997, the respondent filed a motion to reopen

proceedings, with supporting documentation, alleging that

“reasonable cause” excused his absence because he did not receive

notice of the hearing.

The Immigration Judge denied the respondent’s motion to reopen

after determining that it was not filed in a timely manner. The

Immigration Judge concluded that the respondent’s motion did not

fall into any of the exceptions to the regulatory directive that

only one motion to reopen may be filed and that it must be filed

within 90 days of the final administrative order or on or before

September 30, 1996, whichever is later. See 62 Fed. Reg. 10,312,

1 Prior to June 13, 1992, section 242(b) of the Act governed all

deportation proceedings. See Morales v. INS, 116 F.3d 145, 147 n.4

(5th Cir. 1997); Matter of W-F-, Interim Decision 3288, at 5 n.2

(BIA 1996). Deportation proceedings involving notices of hearing

issued between June 13, 1992, and March 31, 1997, were governed by

section 242B of the Act, 8 U.S.C. § 1252b, which was added by

Congress in the Immigration Act of 1990, Pub. L. No. 101-649,

§ 545(a), 104 Stat. 4978, 5061-66 (enacted Nov. 29, 1990), and was

amended by the Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(b)(6),

105 Stat. 1733, 1753 (enacted Dec. 12, 1991). Effective April 1,

1997, the relevant provisions of sections 242 and 242B were deleted

from the Act. See Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

§§ 306(a), 308(b)(6), 110 Stat. 3009-546, 3009-607, 3009-615

(enacted Sept. 30, 1996) (“IIRIRA”). Removal proceedings became the

sole and exclusive procedure for determining whether an alien may be

admitted to the United States or, if the alien has been so admitted,

removed from the United States. See sections 239, 240 of the Act,

8 U.S.C. §§ 1229, 1229a (Supp. II 1996), enacted by IIRIRA § 304,

110 Stat. at 3009-587. 10,333 (1997) (to be codified at 8 C.F.R. § 3.23(b)(1) (interim,

effective Apr. 1, 1997). The Immigration Judge also concluded that

the respondent had not demonstrated a lack of notice of the hearing.

We find that the respondent’s motion to reopen deportation

proceedings in this case was not untimely filed. As the Immigration

Judge correctly recognized, the federal regulations at 8 C.F.R.

§ 3.23(b)(1) provide generally that “[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, or on or before

September 30, 1996, whichever is later.” See also 62 Fed. Reg.

10,312, 10,330 (1997) (to be codified at 8 C.F.R. § 3.2(c)(2))

(interim, effective Apr. 1, 1997) (regarding motions to reopen or

reconsider filed before the Board). Furthermore, 8 C.F.R.

§ 3.23(b)(1) states that, with certain exceptions, “a party may file

only one motion to reconsider and one motion to reopen proceedings.”

However, the regulations provide specific exceptions to the general

time and numerical limitations on motions to reopen or reconsider.

See, e.g., Matter of J-J-, Interim Decision 3323 (BIA 1997)

(discussing the exception for changed country conditions in the

asylum context). For example, the limitations on motions to reopen

do not apply to orders entered in absentia in deportation

proceedings. See 8 C.F.R. §§ 3.23(b)(1), (4)(iii). Thus 8 C.F.R.

§ 3.23(b)(4)(iii)(A) provides:

An order entered in absentia in deportation proceedings may

be rescinded only upon a motion to reopen filed:

(1) Within 180 days after the date of the order of

deportation if the alien demonstrates that the failure

to appear was because of exceptional circumstances

beyond the control of the alien (e.g., serious illness

of the alien or serious illness or death of an immediate

relative of the alien, but not including less compelling

circumstances); or

(2) At any time if the alien demonstrates that he or she

did not receive notice or if 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.

(Emphasis added.)

The record contains no evidence that the respondent received notice

of his deportation hearing, which was conducted on October 27, 1987.

See Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990) (discussing

notice under section 242(b) of the Act); Matter of Lopez-Barrios, 20

I&N Dec. 203 (BIA 1990) (same). Included in the record is an order

by an Immigration Judge dated August 24, 1987, which states that the

deportation proceedings scheduled for that date were reset for a

hearing on September 8, 1987. This order was served upon the

respondent on August 24, 1987. However, the record is devoid of any

evidence that the respondent was notified that the hearing was

subsequently rescheduled for October 27, 1987, and the respondent

has averred that he did not receive such notice. Therefore, we find

that the respondent has demonstrated that the lack of notice excused

his absence from the rescheduled deportation hearing. See Matter of

Patel, 19 I&N Dec. 260 (BIA 1985), aff’d, 803 F.2d 804 (5th Cir.

1986); Matter of Marallag, 13 I&N Dec. 775 (BIA 1971). Accordingly,

we conclude that the Immigration Judge erred in finding that the

respondent’s motion did not fall into the time limitation exception

of 8 C.F.R. § 3.23(b)(4)(A)(iii)(2) for motions to reopen

deportation proceedings conducted in absentia that demonstrate a

lack of notice.

We find that the respondent’s motion to reopen filed with the

Immigration Judge was not barred by the regulatory time limitations.

As addressed above, the respondent has established that a lack of

notice justified his failure to appear at the scheduled deportation

hearing. Accordingly, the following orders are entered.

ORDER: The respondent’s appeal is sustained and the decision of

the Immigration Judge is vacated.

FURTHER ORDER: The proceedings are reopened, and the record is

remanded to the Immigration Court for further proceedings consistent

with the foregoing opinion and the entry of a new decision.