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Reopening Deportation Proceedings: A Look At Applicable Exceptions To Motions To Reopen

by Andrew Knapp, Esq.

Over the years the Congress and the Department of Justice, in the interest of bringing "finality" to the administrative deportation process, have placed more and more restrictions on the ability of non-citizens to reopen deportation proceedings to apply for forms of relief from deportation which were not available at the time their deportation orders became final. In particular, 8 C.F.R. 3.2(c)(2) and 3.23(b)(1), promulgated on April 29, 1996, provide that only one motion to reopen is allowed and must be filed not later than 90 days after the date on which the final administrative decision was rendered, or on or before September 30, 1996, whichever date is later.

Notwithstanding this clear deadline and the prohibition against successive motions, it is important to look closely at the facts of each individual case and the law in effect at the time deportation proceedings were initiated in order to discover if there may be any applicable exceptions to the time and number limitations on motions to reopen.

Recently, our office represented an employee of the Immigration and Naturalization Service whose husband had been ordered deported in absentia on August 2, 1994. Our U.S. citizen client married her husband on January 9, 1998, and, on January 14, 1998, she filed an I-130 immediate relative petition on his behalf with the INS. Following an interview of both spouses by the INS to establish the bona fides of the marriage by "clear and convincing evidence", the INS approved the petition on September 20, 2000.

However, when the husband's adjustment of status application, also filed with the Service on January 14, 1998, could not be adjudicated because of the husband's outstanding order of deportation, our client requested help from her supervisor, a high ranking INS official. The supervisor, who had helped get the couple's petition adjudicated, asked the INS District Counsel to agree to joint reopening of the husband's deportation proceedings. However, the District Counsel refused citing the lack of guidance from the General Counsel as to the standards to be applied in evaluating requests for joint reopening.

The husband, through prior counsel, had already attempted to get his deportation proceeding reopened by filing on June 11, 1999 a motion to reopen under 8 CFR 3.23(b)(4)(iii)(A)(2) seeking to rescind the in absentia order of deportation on the basis that he had not been served with proper notice of his rescheduled deportation hearing. However, on September 20, 1999, the Immigration Judge denied the husband's motion, on the basis that the Record of Proceedings (the Court's file) contained the husband's signature on the return receipt he signed acknowledging his receipt of his August 2, 1994 hearing notice, which had been sent to him by certified mail. The husband then appealed the Immigration Judge's decision to the Board of Immigration Appeal (BIA), which summarily dismissed his appeal on January 24, 2001. Subsequently, on May 10, 2001, the INS sent the husband a notice to report for deportation on June 13, 2001.

At the time the couple retained our office, the husband's situation looked bleak. Because he had been ordered deported after June 13, 1992, it appeared that without the District Counsel's consent, any new motion to reopen would be time and number barred.

However, a closer look at the husband's case revealed that his deportation proceedings had actually been initiated on April 10, 1989, when he was apprehending by the Service upon entry and was issued an Order to Show Cause, placing him in deportation proceedings under INA 242(b), as those proceedings existed prior to the creation of INA 242B deportation proceedings. On May 3, 1990, the husband's proceedings had been administratively closed by the Immigration Judge when he failed to appear for his scheduled deportation hearing. Later, on September 8, 1992, the husband filed an I-589 Request for Asylum in the United States with the INS Asylum Office. When the Asylum Office discovered that the husband remained in proceedings and that proper jurisdiction over his asylum application lay with the Immigration Court, the INS moved to recalendar the husband's deportation proceedings on June 1, 1994. As a result, the Immigration Court scheduled the husband to appear for a new hearing on August 2, 1994. When the husband again failed to appear for his new hearing, the Immigration Judge ordered him deported in absentia.

These facts made it possible for our office to file a second motion to reopen on the husband's behalf under the law which had been in effect at the time the husband's deportation proceedings were first initiated on April 10, 1989. Despite the denial of the husband's June 11, 1999 motion to reopen, the husband's second motion was not barred by 8 CFR 3.23(b)(1), which ordinarily limit respondents in deportation proceedings to one motion to reopen. Likewise, the husband's motion was not time barred, despite the fact that almost 7 years have elapsed since his in absentia deportation order became final. This is because, as the BIA held in Matter of Cruz-Garcia, 22 I&N Dec. 1155, Int. Dec. #3420 (BIA 1999), "[t]he regulations at 8 CFR 3.23(b) impose no time or numerical limitations on aliens seeking to reopen deportation proceedings conducted in absentia pursuant to section 242(b)", and that only "reasonable cause" for failure to appear, and not "exceptional circumstances" need be shown to justify reopening.

Although, the husband's deportation order did not become final until August 2, 1994, after the amendments made to INA 242, the husband's proceedings were still governed by the provisions of INA 242(b), as they existed prior to these amendments. In Lahmidi v. INS, 149 F.3d 1011 (9th Cir. 1998), the Ninth Circuit Court of Appeals held that the amendments to INA 242 do not apply where the Order to Show Cause was issued before the amendment's effective date. Therefore, the husband was exempted from the new motion to reopen rules requiring filing of a motion to reopen within strict time limits and requiring a showing of "exceptional circumstances" for failing to appear for a deportation hearing.

Furthermore, although the husband lacked "reasonable cause" for having failed to attend his deportation hearing after receiving proper notice, in Matter of M-S-, 22 I&N Dec. 349, Int. Dec. #3369 (BIA 1998), the BIA held that even where the formal requirements for rescinding an order entered in absentia have not been met, but where the motion is not untimely and the requested relief is not barred by the failure to attend the immigration court hearing, a motion to reopen may still be granted, in order to give a respondent in deportation proceedings the opportunity to apply for a form of relief that was unavailable at the time of the hearing.

Therefore, since the husband was ordered deported in absentia pursuant to former INA 242(b), a section of law which imposes no time limit for moving to reopen proceedings and which imposes no statutory bars to discretionary relief for failure to attend a deportation hearing , the husband was able to move that his proceedings be reopened in order to apply for a form of relief which was unavailable at the time of his deportation hearing, namely adjustment of status through his U.S. citizen wife.

On the basis of these arguments advanced in the husband's second motion to reopen filed by our office, the Immigration Judge granted the husband a stay of deportation on June 1, 2001 pending consideration of the motion, and, on September 18, 2001, the Immigration Judge granted the motion to reopen. Finally, at the husband's rescheduled deportation hearing on July 16, 2002, the Immigration Judge granted the husband's application for permanent residence.

While there are often more exceptions permitting the reopening of deportation proceedings which were held in absentia, it is sometimes also possible, depending upon the facts of the case, to convince an Immigration Judge to reopen proceedings "sua sponte", even where the non-citizen appeared for all his or her deportation hearings and where more than 90 days have elapsed since the non-citizen's deportation proceedings became final.

In another case successfully litigated by our office, we represented a non-citizen, who, but for his outstanding order of deportation, was derivatively eligible to apply with the INS for permanent residence under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (Pub. L. 105-100; 111 Stat. 2160, 2193) (NACARA).

Although our client's I-589 Application for Asylum was denied and he was ordered deported by the Immigration Judge on September 29, 1994, and although our client missed the September 9, 1998 deadline for filing a Special NACARA Motion to Reopen, on July 5, 2001, the Immigration Judge granted our motion to reopen deportation proceedings. Then, on July 12, 2001, the Judge ordered deportation proceedings terminated to allow our client to file his NACARA application directly with the INS Asylum Office. Finally, on February 27, 2002, the INS Asylum Office granted our client permanent residence.

Even though our motion was brought more than 90 days after the order of the Immigration Judge became final, and therefore was untimely under 8 C.F.R. 3.23(b), our office successfully argued that the the Immigration Court retained "sua sponte" authority to reopen proceedings at any time upon it's own motion for "exceptional circumstances." Matter of X-G-W-, 22 I&N Dec. 71, Int. Dec. #3352 (BIA 1998) [superseded by Matter of G-C-L-, 23 I&N Dec. 359, Int. Dec. #3470 (BIA 2002)]; see also Matter of J-J-, 21 I N Dec. 976, Int. Dec. #3323 (BIA 1997); Matter of G-D-, 22 I&N Dec. 1132, Int. Dec. #3418 (BIA 1999).

8 C.F.R. 3.23(b)(1) provides that "[a]n Immigration Judge may upon his or her own motion at any time... reopen or reconsider any case in which he or she has made a decision". In Matter of Beckford, 22 I&N Dec. 1216, Int. Dec. #3425 (BIA 2000), the BIA suggested that a showing that a respondent was not deportable as alleged in the charging document, despite the respondent's admission to the contrary, would be an appropriate basis for sua sponte reopening where the respondent can successfully "demonstrate a substantial likelihood that the result in his case would be changed if proceedings were reopened".

In our client's case, we successfully argued that our client was not "deportable" as charged in the Order to Show Cause, but rather was "inadmissible", by virtue of the fact that, while he initially entered the United States on October 19, 1992 without inspection as charged in the Order to Show Cause (a deportable offense), his last entry into the United States on June 13, 1993 was pursuant to an INS grant of advance parole under INA 212(d)(5), which parole had since expired rendering our client inadmissible. Our motion successfully argued that our client should have been placed in "exclusion" rather than "deportation" proceedings. In Matter of G-A-C-, 22 I&N Dec. 83, Int. Dec. #3354 (1998), the BIA held that an applicant for asylum who departed the United States after having been granted an advance authorization for parole, and who, on his return, was paroled into this country under the provisions of INA 212(d)(5), should be placed in exclusion proceedings following the Immigration and Naturalization Service's denial of his application for asylum. This is because an alien who departs the United States pursuant to the advance parole provisions of INA 212(d)(5) of the Act is not deportable for having entered without inspection but instead inadmissible as an applicant for admission without proper documents once the grant of parole has expired. Such inadmissibility cannot be determined in deportation proceedings, but must be adjudicated in either exclusion proceedings or, if exclusion proceedings were not commenced prior to April 1, 1997, in removal proceedings.

Because our motion persuaded the Immigration Judge that the INS had improperly placed our client in deportation, rather than exclusion proceedings, the Immigration Judge exercised his "sua sponte" authority to reopen and then terminate our client's deportation proceedings, which allowed our office the opportunity we needed to quickly file and obtain the approval of our client's NACARA application from the INS Asylum Office before the INS District Office could reinitiate proceedings against our client.

These are just two examples of how a closer look at the individual circumstances of a client's case may uncover exceptions to the general time and number limits on motions to reopen.

About The Author

Andrew Knapp, Esq. graduated from Western State University College of Law with honors in 1995. He began his immigration career in the INS Los Angeles Asylum Office as an asylum officer before going into private practice, and has been practicing Immigration Law exclusively since 1996. He joined the Law Offices of Claire Cifuentes in July 2000. Andrew has a published case at the 9th Circuit: Guadalupe-Cruz v. INS. He takes particular interest in litigating motions to reopen before the Immigration Courts and has been successful in reopening proceedings for numerous NACARA and Adjustment applicants. He has also had success convincing the INS to join in Joint Motions to Reopen and the Immigration Court to reopen proceedings sua sponte.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.