Matter of Rivera-Claros

On October 11, 1995, the respondent, after having received a bag and bag-

gage notice to report for deportation on October 13, 1995, requested an emer-

gency stay of deportation from this Board pending a decision on her timely

appeal from an Immigration Judge’s denial of a motion to reopen her depor-

tation proceedings,which had been conducted in absentia. In an October 12,

1995, order, this Board granted the respondent’s emergency stay request. In

conjunction with that order, we noted our intent to address whether there is an

automatic stay of deportation during the pendency of an appeal from the

denial of a motion to reopen an in absentia hearing under section 242B of the

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

that both parties submit briefs addressing this question. We now consider this

question, vacate the October 12, 1995, order, and conclude that section

242B(c)(3) of the Act extends the automatic stay of deportation until the con-

clusion of the appeal process.

The respondent, in her brief, argues that there is an automatic stay of

deportation during the pendency of an appeal from the denial of a motion to

reopen an in absentia hearing under section 242B of the Act.

In its brief, the Immigration and Naturalization Service, through its Chief

Appellate Counsel, states “that the filing of a motion pursuant to section

242B(c)(3) of the Act should stay deportation of the alien pending disposi-

tion of the motion, and the adjudication of a properly filed administrative

appeal to the Board.”

We agree with both parties that there is an automatic stay of deportation

during the pendency of an appeal from the denial of a motion to reopen an in

absentia hearing under section 242B of the Act.

Section 242B(c)(3) of the Act includes the following statement:

The filing of the motion to reopen described in subparagraph (A) or (B) [of section 242B(c)(3)] shall stay the deportation of the alien pending disposition of the motion.

This statement indicates that the stay of deportation will continue through

the disposition of the motion. It is not obvious whether the disposition of the

motion would include the appeal process. However, while this statement

does not squarely state that an alien’s deportation continues to be stayed

when the alien appeals the Immigration Judge’s decision on that motion, it

does make clear that an alien’s deportation will be stayed while a motion to

reopen filed pursuant to section 242B(c)(3) is pending before an Immigration

Judge. See Matter of Gonzalez-Lopez, 20 I&N Dec 644, 645 (BIA 1993); see

also Zapon v. United States Dep’t of Justice, 53 F.3d 283, 284 (9th Cir.

1995). Thus, the statutory language reflects that motions to reopen filed pur-

suant to section 242B(c)(3) of the Act differ markedly from other motions to

reopen, as the filing of motions to reopen pursuant to other sections of the Act

does not automatically stay an alien’s deportation. See Bothyo v. Moyer, 772

F.2d 353, 356 (7th Cir. 1985); 8 C.F.R. §§ 3.6(b), 3.8(a), 242.22 (1995); see

also Gallanosa v. United States, 785 F.2d 116, 119-20 (4th Cir. 1986); Mat-

ter of Okoh, 20 I&N Dec. 864, 865 (BIA 1994).

We note that an in absentia order made under section 242B(c)(1) of the

Act may only be rescinded by first filing a motion to reopen with the Immi-

gration Judge pursuant to section 242B(c)(3) of the Act. See Matter of Gon-

zalez-Lopez, supra. Thus, unlike aliens in exclusion proceedings and aliens

in deportation proceedings conducted pursuant to section 242(b) of the Act, 8

U.S.C. § 1252(b) (1994), who have had in absentia orders issued against

them, aliens in deportation proceedings conducted pursuant to section 242B

who have had in absentia orders issued against them may not file direct

appeals of those orders with this Board. Id. Review by an Immigration Judge

alone, however, would not enable independent review of an in absentia order,

as the Immigration Judge would be the same person who issued the underly-

ing in absentia order. Thus, without an automatic stay during the appeal

process, many aliens, who might be deported before their appeals were adjudicated, could be foreclosed from ever having independent review of

their in absentia orders.

We do not believe that Congress would have intended such a limitation on

review without expressly stating so. Rather, we conclude that, notwithstand-

ing the enhanced standards for rescinding an in absentia order set out in sec-

tion 242B of the Act, the guarantee of appellate review of an in absentia order

remains, regardless of which statutory scheme controls. Thus, the language

contained in section 242B(c)(3) of the Act, mandating a stay of deportation

pending disposition of the motion, should be read to include the appeal pro-

cess as part of the disposition of the motion.

Accordingly, the following order will be entered. ORDER: The October 12, 1995, order of the Board is vacated,

and the respondent is deemed to have an automatic stay of deportation during

the pendency of her appeal pursuant to section 242B(c)(3) of the Act.