Matter of NJB Interim Policy
HQCOU90/16.11-P
Date: July 11, 1997
Subject: Motions to Reopen and Matter of N-J-B- Interim Policy
REVISED
To:
Regional Counsel
District Counsel
From: Office of the General Counsel
This memorandum supersedes the memorandum on motions to reopen dated October 3, 1996. On July 10, 1997, the Attorney General vacated and referred to herself the decision in Matter of N-J-B-, Interim Decision 3309 (BIA, February 20, 1997) (N-J-B-). The following instructions, effective immediately, contain interim measures for motions to reopen for suspension of deportation, and for immigration court and BIA proceedings. This policy is in effect until the Attorney General issues a decision in N-J-B-.
Motions to Reopen
Background
On April 29, 1996, the Executive Office for Immigration Review (EOIR) published a final rule which, among other things, provides that an alien must file a motion to reopen within 90 days after the date that the administrative decision became final or on or before September 30, 1996, whichever is later. 8 C.F.R. Sec. 3.2(c)(2). There are three exceptions to this restriction. The first exception to these time limits is provided for motions to reopen to rescind orders of deportation entered in absentia. 8 C.F.R. Sec. 3.2(c)(3)(i). The second is to apply or reapply for asylum based upon changed circumstances in the country of nationality or to which deportation has been ordered. 8 C.F.R. Sec. 3.2(c)(3)(ii). Thirdly, a motion to reopen may be filed without regard to the regulatory time limits in cases in which all of the parties agree to the motion and such a motion is jointly filed with EOIR. 8 C.F.R. Sec. 3.2(c)(3)(iii).
To seek the Service’s consent to file a motion to reopen with an Immigration Court or the Board of Immigration Appeals under the third exception, 8 C.F.R. Sec. 3.2(c)(3)(iii), an alien must contact the District Counsel’s office that represented the Service during the alien’s immigration proceedings. Such a request must be supported by affidavits or other evidentiary material, including a complete copy of the appropriate application for relief, if applicable. The request should also include the proposed joint motion in a format that includes a signature block for the INS attorney. Where appropriate, the District Counsel’s office may request that revisions to the joint motion be made as a precondition for giving its consent. Even when it agrees to such a joint motion, the Service may still contest the merits of the alien’s case in a reopened proceeding. Id. Where consent of the Service is required, the Immigration Court or Board of Immigration Appeals will deny the motion to reopen if the alien files it before obtaining the Service’s signature on the proposed joint motion.
Below are the guidelines under which the Service may consent to the filing of a joint motion to reopen.
Interim Guidance for Motions to Reopen for Suspension of Deportation
Pursuant to the Attorney General’s decision to vacate and refer to herself the decision in Matter of N-J-B-, the Service will apply special interim criteria to motions to reopen filed for purposes of applying for suspension of deportation. These criteria will be in effect until the Attorney General issues her decision in that case. During this period, the Service should join such a motion to reopen where the alien was placed into deportation proceedings (the Order to Show Cause was filed with EOIR) prior to April 1, 1997, and has been physically present in the United States for a continuous period of seven years at the time the motion to reopen is filed, unless:
(1) The alien was denied suspension for reasons other than failing to have seven years continuous physical presence before the charging document was served, or
(2) The alien has been convicted of an aggravated felony, or
(3) The alien is clearly ineligible for suspension of deportation on grounds other than failing to have seven years continuous physical presence before the charging document was served. An alien should not be considered clearly ineligible for suspension for failing to meet the extreme hardship standard, unless that determination has been made by an Immigration Judge, the Board of Immigration Appeals, or a federal appellate court in a final, unappealed decision.
During this interim period, the District Counsel’s office should expressly advise EOIR that by consenting to a particular joint motion to reopen under these interim criteria, the Service is not waiving its right to contest the merits of the alien’s claim at the reopened proceeding as provided under EOIR’s regulations. A standard attachment to the joint motion should be used for this advisal, phrased as follows: “The Service reserves the right to contest the merits of the aliens case in a reopened proceeding as provided by 8 C.F.R. Sec. 3.2(c)(3)(iii).”
When the Attorney General issues her decision in N-J-B-, further instructions will be issued
.All Other Motions to Reopen
Service consent to file a motion to reopen that would otherwise be barred as untimely under EOIR regulations should be given only under exceptional and compelling circumstances. In no event should consent be given to more than one joint motion to reopen. Factors which should be considered when evaluating whether to give Service consent to a joint motion to reopen include:
(1) whether the alien has presented new evidence that is material and was not available and could not reasonably have been discovered or presented at the former hearing;
(2) whether the alien is statutorily eligible for the relief sought; and
(3) whether the alien merits a favorable exercise of discretion. The District Counsel shall be guided by relevant case law and applicable Board of Immigration Appeals precedents in exercising discretion in these cases. When novel or otherwise sensitive issues are presented, consultation with the Regional Counsel should be undertaken.
Stays of Deportation
Neither a request for Service consent to file a joint motion to reopen nor actual Service consent thereto shall stay the execution of any final order of deportation in that case. However, where the INS joins a motion to reopen under the section of this memorandum entitled “Interim Guidance for Motions to Reopen for Suspension of Deportation,” the alien is likely to be under a temporary stay of deportation pursuant to the attached Field Operations policy.
Immigration Proceedings and Appeals
Pending the outcome of the Attorney General’s decision in N- J-B-, the INS should take the position in immigration court that suspension hearings with an N-J-B- issue should go forward to determine whether the applicant is otherwise eligible for suspension. If independent bases exist to deny suspension apart from section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act, the INS should make those arguments. The INS should also argue that if the judge would grant (or conditionally grant) suspension but for section 309(c)(5), then the judge should reserve decision pending the outcome of N-J-B-. The INS should take the same basic position on appeal for cases involving an N- J-B- issue—argue any alternative bases for denial and that a decision which turns on the outcome of N-J-B- should be stayed pending the Attorney General’s decision.
Nothing in this memorandum shall be construed to create a cause of action against the Service with respect to any action or non-action taken on a particular request for consent.
David A. MartinGeneral Counsel
Attachment