U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director

_____________________________________________________________________________

5107 Leesburg Pike, Suite 2400
Falls Church, Virginia 22041


The Office of the Clerk's New Address is effective Saturday, April 4, 1998

Questions and Answers October 1997


QUESTIONS AND ANSWERS
REGARDING EOIR'S APPEALS AND MOTIONS PROCEDURES

The major highlights and changes made by the new regulation are:

APPEAL PROCEDURES

Q: Which appeals are affected by the new regulation?

A: The changes affect only appeals from Immigration Judge decisions to the Board. Appeals from INS District Director decisions are still filed with the Service, which will process such appeals and forward them to the Board.

Q: Where should an appeal from an Immigration Judge decision to the Board be filed?

A: File an appeal from an Immigration Judge's decision rendered on or after the effective date of the new regulation directly with the Board. The appeal fee ($110) or the new Appeal Fee Waiver Request form (Form EOIR-26A) must be filed at the same time as the appeal. See 8 C.F.R. 3.3(a)(1). Send the appeal to: Board of Immigration Appeals, Appeals Processing Unit, 5107

Leesburg Pike, Suite 1711, Falls Church, VA 22041. The Office of the Clerk's New Address is effective Saturday, April 4, 1998

Q: What are the time limits for filing an appeal from an Immigration Judge decision to the Board?

A: The signed Notice of Appeal with the fee or a fee waiver, must be received by the Board within 30 calendar days after the Immigration Judge's oral decision or within 30 calendar days after the date the Immigration Judge's written decision was mailed if no oral decision was rendered. Simply mailing the Notice of Appeal or having it postmarked within the time limit will not insure that the appeal is timely received by the Board. See 8 C.F.R. 3.38(c). If a Notice of Appeal is received at the Board outside the time limit it will be dismissed as untimely.

Q: What is required for an appeal to be properly filed?

A: An appeal from an Immigration Judge decision is not properly filed with the Board unless it is received at the Board, along with all required documents, fees or fee waiver requests, and proof of service within the required time period. See 8 C.F.R. 3.3(a)(1) and (2) and 8 C.F.R. 3.38(d). Also, an attorney or representative must submit a Form EOIR-27 (Notice of Entry of Appearance Before the Board of Immigration Appeals) in order to receive documents and correspondence regarding that case. See 8 C.F.R. 3.3(a)(1) and (2). Remember, an appeal is not considered properly filed unless all filing requirements, including proof of service on the opposing party, have been timely met.

 

Q: What is the filing fee for an appeal?

A: $110.00.

Q: What form of payment will be accepted for an appeal/motion fee?

A: Fees must be in the form of check or money order. The check or money order should be made payable to the United States Department of Justice and must be drawn on a bank located in the United States. Cash will not be accepted.

Q: What if an individual cannot afford the appeal filing fee?

A: A request to waive the fees on appeal to the Board must be submitted on the new Appeal Fee Waiver Request form (Form EOIR-26A). See 8 C.F.R. 3.8(c). This new form requests information regarding the waiver applicant's monthly income and expenses and contains a sworn statement for the applicant's signature that the information provided is accurate.

Q: May the filing fee for an application be electronically paid?

A: At this time, no.

Q: May someone fax an appeal/motion?

A: Facsimile filings will not be accepted.

Q: Can a courier service be used?

A: Yes.

Q: Can a delivery service such as Federal Express be used?

A: Yes.

Q: May someone file an appeal/motion/fee in person?

A: Yes. The appeal/motion and proper fee may be filed in person with the: Board of Immigration Appeals, Appeal Processing Unit, 5107 Leesburg Pike, Suite 1711, Falls Church, VA 22041. The Office of the Clerk's New Address is effective Saturday, April 4, 1998

Q: Will the person receive a receipt?

A: You will receive a receipt in the mail if the appeal/motion is mailed and one will be provided if filed in person.

Q: What are the hours of the Appeal Processing Unit for filing an appeal/motion/fee in person?

A: 8:00 a.m. until 4:30 p.m., Monday through Friday.

Q: How does the regulation apply to cases that were in progress when the regulation took effect?

A: The regulation's 30-day appeal period and the requirement that the appeal be filed directly with the Board apply to appeals from Immigration Judge decisions issued on or after the effective date of the new regulation. This means that appeals from Immigration Judge orders issued prior to the effective date of the new regulation are governed by the old regulation's 10-day appeal period (13 days if the appeal was mailed) and must be filed with the Immigration Court where the Immigration Judge's decision was issued.

Q: Can the old EOIR-26 Notice of Appeal be used?

A: No. The new form must be used for all filings on or after the effective date of these regulations. The old form is obsolete and should not be used.

Q: May the new Form EOIR-26 be copied?

A: The new form may be copied, but must be in the same color (gray) as the new form.

Q: Where can the new forms be obtained?

A: The new forms will be available at any Immigration Court and the Board. The forms will be made available through the mail upon request.

Q: Where should appellate briefs be filed?

A: In appeals to the Board from an Immigration Judge's decision rendered on or after the effective date of the new regulation, briefs are to be filed directly with the Board. See 8 C.F.R. 3.3(c)(1).

Q: How long will the briefing schedule be?

A: A briefing schedule will be set after a transcript of the hearing before the Immigration Judge is available to the parties. The parties are generally allowed 30 calendar days each to file the opening brief and the reply unless the Board specifies a shorter period. The Board may extend the period up to 90 days, but only if good cause is shown. If both parties appeal, both will be granted 30 days (which will make the briefs due the same date). See 8 C.F.R. 3.3(c)(1). The Board generally will not consider a request for an extension of the briefing time received after the expiration of the briefing schedule.

Q: If an appeal is taken from a Service decision, where should the briefs be filed?

A: With the Service office having administrative control over the file in accordance with a briefing schedule set by that office. See 8 C.F.R. 3.3(c)(2). This procedure has not changed.

Q: What will happen if a brief is received after expiration of the briefing schedule?

A: The brief will be rejected and returned to the filing party unless a motion to consider the late brief is filed by the party and is granted by the Board.

Q: Will a motion to file a late brief exhaust the "one motion" limit?

A: No

Q: Will extensions to file a brief be considered?

A: Extensions will be considered by the Board on an individual basis if good cause is shown. If the request for an extension is not made before the original due date expires, the request will not be considered, unless deemed appropriate by the Board. See 8 C.F.R. 3.3(c)(2).

Q: Who will send the Immigration Judge's decision and transcripts to the parties and set the briefing schedules?

A: The Appeals Processing Unit at the Board will send the decisions and transcripts to the parties involved, accompanied by a briefing schedule letter.

Q: Is the same Form EOIR-33 used for change of address when a matter is before the Board, as is used when a matter is before an Immigration Judge?

A: No. A Change of Address Form, called Form EOIR-33/BIA, will be used for matters before the Board.

Q: What are the requirements regarding change of address?

A: 1) Party's Change of Address. Within five working days of any change of address or telephone number, a party must provide written notice of the change. See 8 C.F.R. 3.38(e). Form EOIR-33 is to be used for a change of address when a case is pending before an Immigration Court. The new Form EOIR-33/BIA is to be used for a change of address where a case is pending before the Board.

2) Attorneys and Representatives. Within five working days of any change of address or telephone number, attorneys and representatives of record must provide the Board written notice of any changes in the attorney's/representative's address or telephone number for each appeal pending before the Board in which they have entered an appearance. See 8 C.F.R. 3.38(e).



MOTIONS

TIME AND NUMBER RESTRICTIONS


Q: What time and number restrictions have been placed on motions to reopen?

A: Generally only one motion to reopen may be filed in each case after a final administrative decision. See 8 C.F.R. 3.2(c)(2). The motion must be filed within 90 days of the final administrative decision or on or before September 30, 1996, whichever is later. See 8 C.F.R. 3.2(c)(2) and 3.23(b)(1). A motion to reopen is not considered properly filed unless it is actually received at the Board or Immigration Judge's Office within 30 calendar days of the Board or Immigration Judge's decision. See Matter of J-J-, Interim Decision 3323 (BIA 1997).

Q: What time and number restrictions have been placed on motions to reconsider?

A: Generally only one motion to reconsider may be filed in each case after a final administrative decision. See 8 C.F.R. 3.2(b)(2) and 8 C.F.R. 3.23(b)(1). If the motion is within the jurisdiction of an Immigration Judge, it must be filed within 30 days after the date on which the Immigration Judge's decision was rendered or on or before July 31, 1996, whichever is later. See 8 C.F.R. 3.23(b)(1). If the motion is within the jurisdiction of the Board, it must be filed within 30 days of the date of the Board decision or on or before July 31, 1996, whichever is later. See 8 C.F.R. 3.2(b)(2). A motion to reconsider is not considered properly filed unless it is actually received at the Board or Immigration Judge's Office within 30 calendar days of the Board or Immigration Judge's decision. See Matter of J-J-, Interim Decision 3323 (BIA 1997).

Q: What time and number restrictions have been placed on a motion to reopen or a motion to reconsider a decision by the Immigration Judge or the Board rendered prior to the effective date of the regulation?

A: As noted above, generally a motion to reopen a decision rendered by an Immigration Judge or the Board prior to the effective date of the regulation must have been filed on or before September 30, 1996. Generally, a motion to reconsider a decision rendered by an Immigration Judge or the Board prior to the effective date of the regulation must have been filed on or before July 31, 1996. See 8 C.F.R. 3.2(b)(2).

Q: Are there exceptions to the time and number restrictions for motions to reopen?

A: There are four basic exceptions:

1) A motion to reopen proceedings to apply or reapply for asylum or withholding of deportation based on changed circumstances in an individual's country of nationality or the country to which deportation was ordered. See 8 C.F.R. 3.2(c)(3)(ii) and 8 C.F.R. 3.23(b)(4)(i).

2) A motion to reopen agreed upon by all parties and jointly filed. See 8 C.F.R. 3.2(c)(3)(iii) and 8 C.F.R. 3.23(b)(4)(iv).

3) A motion to reopen filed pursuant to 8 C.F.R. 3.23(b)(4)(iii) to rescind an Immigration Judge's order of deportation, exclusion, or removal entered in absentia. See 8 C.F.R. 3.2(c)(3)(i) and 8 C.F.R. 3.23(b)(4)(ii) and (iii). The previously existing procedure for rescinding an in absentia deportation order remains the same: if a motion alleges exceptional circumstances for failing to appear, the motion must be filed within 180 days after the date of the order of deportation. A motion to reopen which alleges that the individual who failed to appear did not receive proper notice of the hearing may be filed at any time. See section 242B(c)(3) of the INA; 8 C.F.R. 3.23(b)(4)(iii)(A)(2).

4) A motion to reopen exclusion proceedings on the basis that the Immigration Judge improperly entered an in absentia exclusion order. These continue to have no time or number restrictions regardless of the reason asserted in the motion for the failure to appear. Individuals must show reasonable cause for failure to appear for the exclusion hearing. See section 242(b) of the INA; 8 C.F.R. 3.23(b)(4)(iii)(B).

Q: Do the time and number limitations apply to both the alien and the Immigration and Naturalization Service?

A. The INA, as amended in 1996, specifies that "an alien" may file only one motion to reopen or reconsider. Sections 240(c)(5)(A) and 240(c)(6)(A). The interim regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 state that the time and number restrictions "do not apply to motions by the Service in removal proceedings pursuant to section 240 of the Act, nor shall such limitations apply to motions by the Service in exclusion or deportation proceedings, when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with section 208.22(f) of this chapter."

Q: Will a motion which is filed outside the time limits be considered as a motion for the Board to reopen or reconsider on its own?

A: The regulations do not require this. It is within the Board's discretion as to whether the Board will give any consideration to an out-of-time motion. See Matter of J-J-, Interim Decision 3323 (BIA 1997). The Board ultimately will establish its own internal policies for deciding when it is appropriate to reopen or reconsider on its own.

Q: Is one motion to reopen allowed in addition to one motion to reconsider (or vice versa)?

A: Yes, but the applicable requirements for filing each type of motion must be met.

Q: What if I file a motion requesting both reopening and reconsideration?

A: A motion which asks the Board or an Immigration Judge to reconsider a decision and also seeks to reopen a decision by, for example, claiming to present new material evidence, will count as one of each type of motion and will exhaust the one motion limit for both types of motion. Note: the title of a motion is not determinative of how the motion will be categorized for exhaustion of the one motion and other purposes; rather, the adjudicator will determine, based on the contents of the motion, whether it is solely a motion to reopen, solely a motion to reconsider, or a combined motion to reopen and reconsider.

Q: What if I file a motion requesting both reopening and reconsideration 31-90 days after a decision. Will both be adjudicated?

A: The portion of the motion requesting reopening, because it was filed within 90 days of the decision, would be considered by the Board/Immigration Judge. The portion of the motion requesting reconsideration, because it was filed later than 30 after the decision, would be treated as an untimely filed motion to reconsider.



PROCEDURES

Q: What is the filing fee for a motion to reopen?

A: $110.00.

Q: What is the filing fee for a motion to reconsider?

A: $110.00.

Q: What is the filing fee for a motion requesting both reopening and reconsideration?

A: $110.00.

Q: Does the fee for any underlying application have to be paid at the time the motion is filed and fee stamped, in addition to the fee for the motion?

A: No. The fee for the underlying application need only be filed if the Motion to Reopen is granted and the case is reopened. HOWEVER, COPIES OF THE UNDERLYING APPLICATIONS AND SUPPORTING DOCUMENTS IN ESTABLISHING ELIGIBILITY MUST ACCOMPANY THE MOTION TO REOPEN.

Q: Will a filing fee be charged for a motion to reopen or reconsider regarding an underlying application for which no fee is chargeable (e.g., asylum)?

A: No. See 8 C.F.R. 103.7(a)(1).

Q: What if an individual cannot afford the filing fee(s)?

A: (1) Before Immigration Judge.

A fee waiver request regarding fees for a motion before an Immigration Judge must contain a properly executed affidavit or unsworn declaration made pursuant to 28 U.S.C. 1746. See 8 C.F.R. 3.24. Form EOIR-26A may be used for this purpose.

(2) Before the Board.

A fee waiver request regarding a motion before the Board must be submitted on the new Appeal Fee Waiver Request form (Form EOIR-26A). See 8 C.F.R. 3.8(c). This new form requests information regarding the waiver applicant's monthly income and expenses and contains a sworn statement for the applicant's signature that the information provided is accurate.

Q: Where can the new Appeal Fee Waiver Request form be obtained?

A: The new form will be available at any Immigration Court and the Board. The forms will be made available through the mail upon request.

Q: May the new Form EOIR-26A be copied?

A: The new Form EOIR-26A may be copied, but must be in the same color as the new form.

Q: How many copies of a motion must be filed with the Board?

A: No additional copies need be filed with a motion.

Q: In filing a motion, who is served with copies and what certification of this service is required?

A: Copies of all documents filed with or presented to an Immigration Judge must be simultaneously served on the opposing party. See 8 C.F.R. 3.32(a). Motions before the Board must include proof of service on the opposing party of the motion and all attachments. See 8 C.F.R. 3.2(g)(1). In addition, 8 C.F.R. 3.2(g)(3) specifies that proof of service on the opposing party is required for all briefs filed in support of a motion before the Board. Remember, a motion is not considered properly filed unless all filing requirements, including evidence of proper service on the opposing party, have been timely met.

Q: Will motions be accepted if submitted in a foreign language?

A: No. The new regulation expressly requires that all motions and accompanying submissions made to the Board must be in English or accompanied by a certified English translation. See 8 C.F.R. 3.2(g)(i) (this requirement already existed in the regulations governing proceedings before Immigration Judges at 8 C.F.R. 3.33).

Q: Does an attorney or representative have to file a Notice of Appearance in conjunction with a motion?

A: Yes. An attorney or representative must submit Form EOIR-27 in order to receive documents and correspondence regarding a client's motion to reopen pending before the Board. See 8 C.F.R. 3.2(g).

Q: What is the effect of filing a motion to reopen when an appeal is pending at the Board?

A: A motion to reopen a decision of an Immigration Judge or Service officer that is filed at the time the appeal is filed or that is filed while an appeal is pending before the Board, may be deemed a motion to remand. The Board may consolidate such motion with, and consider it in conjunction with, the appeal. See 8 C.F.R. 3.2(c)(4).

Q: Does such a motion count as the one motion to reopen allowed?

A: No, because the number restriction on motions only applies to a motion filed after a final administrative decision. See 8 C.F.R. 3.2(c)(2). The motion to remand which is filed while an appeal is still pending before the Board occurs prior to a final administrative decision.

Q: What filings are required in support of a motion?

A: *The motion and all accompanying submissions, in English or with certified English translations.

*A non-Service party must file a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR-27); and proof of service on the opposing party of the motion and all attachments must be included. See 8 C.F.R. 3.2(g)(1).

*The appropriate fee, fee receipt, or fee waiver request must accompany the motion. See 8 C.F.R. 3.2(g)(2)(i), 3.31(b), 103.5(a)(1)(iii).

*As noted below, any affidavits, underlying applications for relief, and other evidentiary material must accompany the motion. See 8 C.F.R. 3.2(c)(1) and 103.5(a)(1)(iii).

Q: What factual allegations are required to support a motion to reopen or reconsider?

A: The same allegations and supporting evidence are required for motions under the new regulations as under the old. Both motions to reopen and reconsider must state whether the validity of the deportation, exclusion, or removal order has been or is the subject of any judicial proceedings and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. If a deportation/exclusion/removal order is in effect, a motion to reopen or reconsider such order must include a statement by or on behalf of the moving party declaring whether the subject of the order is also the subject of any pending criminal proceeding under section 242(e) of the Act and, if so, the current status of that proceeding. If a motion to reopen or reconsider seeks discretionary relief, the motion must include a statement by or on behalf of the moving party declaring whether the alien for whose relief the motion is being filed is subject to any pending criminal prosecution and, if so, the nature and current status of that prosecution. See 8 C.F.R. 3.2(e). The requirements particular to each type of motion are explained below.

Motions to Reopen. A motion to reopen must state the new facts that would be proven at a hearing were the motion to be granted. If the motion to reopen is for the purpose of submitting an application for relief, it must be accompanied by the appropriate application and supporting documents. A motion to reopen will not be granted unless it appears to the Immigration Judge or the Board that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. A motion to reopen for the purpose of providing an alien the opportunity to apply for any form of discretionary relief will not be granted if the Immigration Judge fully explained to the alien his or her right to apply for such relief and the alien was given an opportunity to apply for such relief at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. See 8 C.F.R. 3.2(c)(1), 3.23(b)(43), and 103.5(a)(2).

Motions to Reconsider. A motion to reconsider a Board decision must state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority. See 8 C.F.R. 3.2(b). A motion to reconsider an Immigration Judge decision must state the reasons for the motion and must be supported by pertinent authority. See 8 C.F.R. 3.23(b)(2).

Q: Where is a motion to reopen before the Immigration Judge filed ( e.g., a case that has never come before the Board)?

A: Such a motion still must be filed with the Immigration Court having administrative control over the Record of Proceeding. See 8 C.F.R. 3.31(a).

Q: Where is a motion within the jurisdiction of the Board filed when the case originated before an Immigration Judge?

A: Such a motion must be filed directly with the Board along with the appropriate fee or fee waiver request (Form EOIR-26A). See 8 C.F.R. 3.2(g)(2)(i) and 3.8(a). Send the motion to: Board of Immigration Appeals, Appeal Processing Unit, 5107 Leesburg Pike, Suite 1711, Falls Church, VA 22041.The Office of the Clerk's New Address is effective Saturday, April 4, 1998

Q: Where is a motion within the jurisdiction of the Board filed when the case originated before a Service officer?

A: The motion in such a case is still filed with the office of the Service having administrative control over the record of proceedings. See 8 C.F.R. 3.2(g)(2)(ii).

Q: Where is the fee paid for a motion to reopen an Immigration Judge decision?

A: The fee for such a motion must still be paid to any Service office authorized to accept fees. See 8 C.F.R. 3.24 and 103.7(a).

Q: Where is the fee paid for a motion within the jurisdiction of the Board when the case originated before a Service officer?

A: The fee still must be submitted to any Service office authorized to accept fees. See 8 C.F.R. 3.8(b) and 103.7(a).

Q: Is oral argument before the Board permitted in conjunction with a motion to reopen or reconsider?

A: Yes, but the granting of oral argument is within the discretion of the Board. 8 C.F.R. 3.2(h).

Q: What types of motions are permitted under the regulations?

A: There are no more limitations under the new regulations regarding what types of motions may be made than there were under the old. All motions are subject to the general requirements for motions set forth in 8 C.F.R. 3.2 and 8 C.F.R. 3.23.

Q: May a brief be filed in support of a motion to reopen or reconsider?

A: Yes. Supporting briefs may be filed with a motion. Opposing party has 13 days to file a brief or statement in opposition to the motion. The Board may extend time to file in its discretion. See 8 C.F.R. 3.2(g)(3).

Q: What if no response is made to the motion?

A: A motion shall be deemed unopposed unless a timely response is made. See 8 C.F.R. 3.2(g)(3) and 3.23(a) and (b)(1)(iv).

Q: Does the filing of a motion stay the execution of the decision sought to be reopened?

A: Except for motions to rescind orders of removal or deportation entered in absentia, the filing of a motion to reopen or reconsider does not stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay is specifically granted by the Board, the Immigration Judge, or an authorized officer of the Service. See 8 C.F.R. 3.2(f).



APPEALS/MOTIONS: GENERAL QUESTIONS

Q: Can a timely appeal be taken from an Immigration Judge order rendered in absentia?

A: The regulations provide that no appeal may be taken from an order of removal/deportation entered in absentia. See 8 C.F.R. 240.15 (for proceedings commenced on or after April 1, 1997); 240.53 (for proceedings commenced prior to April 1, 1997). However, as described above, a motion to reopen to rescind an order of deportation entered in absentia may be made, as may a motion to reopen exclusion proceedings on the ground that the Immigration Judge improperly entered an in absentia exclusion order.

Q: What other changes does the new regulation make?

A: Lawful Permanent Resident (LPR) status terminates upon entry of a final administrative order of exclusion or deportation. See 8 C.F.R. 1.1(p).

Q: Are there any exceptions?

A: No. However, there is an important change regarding reopening: an alien may move to reopen for consideration or further consideration of a section 212(c) application, even though he or she is no longer an LPR, if the alien can show he or she was statutorily eligible for such relief prior to entry of the final administrative decision. See 8 C.F.R. 3.2(c)(1). If section 212(c) relief is granted, the final administrative order of deportation would be vacated and the alien would be able to resume lawful permanent resident status.

Q: What is required in a statement of the reason for the appeal in order to avoid summary dismissal pursuant to 8 C.F.R. 3.1(d)(1-a)(i)?

A: The new Notice of Appeal form (Form EOIR-26) very specifically states what must be included in the Notice of Appeal, and warns of possible summary dismissal if the requirements are not met. The appealing party must give specific details of why he or she disagrees with the Immigration Judge's decision. The appeal must specify the finding(s) of fact, the conclusion(s) of law, or both, that the appeal challenges. If a question of law is presented, supporting authority should be cited. If the dispute is over the findings of fact, the specific facts must be identified. Where the appeal concerns discretionary relief, the appeal must state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion and must identify the specific factual and legal findings being challenged.

Compliance with the requirements set forth in the form will avoid summary dismissal. The requirements regarding the statement of the basis for an appeal are also set forth at 8 C.F.R. 3.1(d)(1-a) and 3.3(a)(2).

Q: What is the effect of an alien's actual deportation or departure from the United States on his or her pending motion or appeal?

A: The deportation or departure pursuant to an order of deportation, exclusion, or removal constitutes a withdrawal of the motion or appeal, or waiver of the right to appeal if an appeal has not yet been perfected. See 8 C.F.R. 3.2(d); 3.3(e); 3.4.

Q: Will the Board still accept cases on certification?

A: The new regulation provides that the Board in its discretion may accept or not accept for review a case that has been certified and forwarded to the Board. If declined, the underlying decision becomes final on the date the Board declined to accept the case. See 8 C.F.R. 3.7.