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pertaining to a matter initially adju ing administrative control over the dicated by an officer of the Service place where the reopened proceedings shall be filed with the officer of the are to be conducted. If the motion to Service having administrative control reconsider is granted, the decision over the record of proceeding.

upon such reconsideration shall affirm, (iii) If the motion is made by the modify, or reverse the original decision Service in proceedings in which the made in the case. Service has administrative control

(61 FR 18904, Apr. 29, 1996; 61 FR 32924, June over the record of proceedings, the

26, 1996, as amended at 62 FR 10330, Mar. 6, record of proceedings in the case and 1997; 64 FR 56142, Oct. 18, 1999] the motion shall be filed directly with the Board. If such motion is filed di- 83.3 Notice of appeal. rectly with an office of the Service, the (a) Filing—(1) Appeal from decision of entire record of proceeding shall be for- an Immigration Judge. A party affected warded to the Board by the Service of- by a decision who is entitled under this ficer promptly upon receipt of the chapter to appeal to the Board from a briefs of the parties, or upon expiration decision of an Immigration Judge shall of the time allowed for the submission be given notice of his or her right to of such briefs.

appeal. An appeal from a decision of an (3) Briefs and response. The moving Immigration Judge shall be taken by party may file a brief if it is included filing a Notice of Appeal to the Board with the motion. If the motion is filed of Immigration Appeals of Decision of directly with the Board pursuant to Immigration Judge (Form EOIR-26) diparagraph (g)(2)(i) of this section, the rectly with the Board, within the time opposing party shall have 13 days from specified in the governing sections of the date of service of the motion to file this chapter. The appealing parties are a brief in opposition to the motion di- only those parties who are covered by rectly with the Board. If the motion is the decision of an Immigration Judge filed with an office of the Service pur- and who are specifically named on the suant to paragraph (g)(2)(ii) of this sec- Notice of Appeal. The appeal must be tion, the opposing party shall have 13 accompanied by a check, money order, days from the date of filing of the mo- or fee waiver request in satisfaction of tion to file a brief in opposition to the the fee requirements of g3.8. If the remotion directly with the office of the spondent/applicant is represented, Service. In all cases, briefs and any Notice of Entry of Appearance as Atother filings made in conjunction with torney or Representative Before the a motion shall include proof of service Board (Form EOIR-27) must be filed on the opposing party. The Board, in with the Notice of Appeal. The appeal its discretion, may extend the time must reflect proof of service of a copy within which such brief is to be sub- of the appeal and all attachments on mitted and may authorize the filing of the opposing party. The appeal and all a brief directly with the Board. A mo- attachments must be in English or action shall be deemed unopposed unless companied by a certified English transa timely response is made. The Board lation. An appeal is not properly filed may, in its discretion, consider a brief unless it is received at the Board, along filed out of time.

with all required documents, fees or fee (h) Oral argument. A request for oral waiver requests, and proof of service, argument, if desired, shall be incor- within the time specified in the govporated in the motion to reopen or re- erning sections of this chapter. A noconsider. The Board, in its discretion, tice of appeal may not be filed by any may grant or deny requests for oral ar- party who has waived appeal pursuant gument.

to $3.39. (1) Ruling on motion. Rulings upon (2) Appeal from decision of a Service ofmotions to reopen or motions to recon- ficer. A party affected by a decision sider shall be by written order. If the who is entitled under this chapter to order directs a reopening and further appeal to the Board from a decision of proceedings are necessary, the record a Service officer shall be given notice shall be returned to the Immigration of his or her right to appeal. An appeal Court or the officer of the Service hav- from a decision of a Service officer

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shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals of Decision of District Director (Form EOIR-29) directly with the office of the Service having administrative control over the record of proceeding within the time specified in the governing sections of this chapter. The appeal must be accompanied by a check, money order, or fee waiver request in satisfaction of the fee requirements of 83.8 and, if the appellant is represented, a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR-27). The appeal and all attachments must be in English or accompanied by a certified English translation. An appeal is not properly filed until its receipt at the appropriate office of the Service, together with all required documents and fees, and the fee provisions of $3.8 are satisfied.

(b) Statement of the basis of appeal. The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to avoid summary dismissal pursuant to $3.1(d)(1-a)(i). The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified. Where the appeal concerns discretionary relief, the appellant 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 finding or findings that are being challenged. The appellant must also indicate in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) whether he or she desires oral argument before the Board and whether he or she will be filing a separate written brief or statement in support of the appeal.

(c) Briefs—(1) Appeal from decision of an Immigration Judge. Briefs in support of or in opposition to an appeal from a decision of an Immigration Judge shall be filed directly with the Board. In those cases that are transcribed, the briefing schedule shall be set by the Board after the transcript is available.

An appellant shall be provided 30 days in which to file a brief, unless a shorter period is specified by the Board. The appellee shall have the same period of time in which to file a reply brief that was initially granted to the appellant to file his or her brief. The time to file a reply brief commences from the date upon which the appellant's brief was due, as originally set or extended by the Board. The Board, upon written motion, may extend the period for filing a brief or a reply brief for up to 90 days for good cause shown. In its discretion, the Board may consider a brief that has been filed out of time. All briefs, filings, and motions filed in conjunction with an appeal shall include proof of service on the opposing party.

(2) Appeal from decision of a Service officer. Briefs in support of or in opposition to an appeal from a decision of a Service officer shall be filed directly with the office of the Service having administrative control over the file in accordance with a briefing schedule set by that office. The alien shall be provided 30 days in which to file a brief, unless a shorter period is specified by the Service officer from whose decision the appeal is taken. The Service shall have the same period of time in which to file a reply brief that was initially granted to the alien to file his or her brief. The time to file a reply brief commences from the date upon which the alien's brief was due, as originally set or extended. Upon written request of the alien, the Service officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for good cause shown. The Board may authorize the filing of briefs directly with the Board. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a Service office, shall include proof of service on the opposing party.

(d) Effect of certification. The certification of a case, as provided in this part, shall not relieve the party affected from compliance with the provisions of this section in the event that he or she is entitled and desires to appeal from an initial decision, nor shall it serve to extend the time specified in

the applicable parts of this chapter for the taking of an appeal.

(e) Effect of departure from the United States. Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a waiver of his or her right to appeal. (61 FR 18906, Apr. 29, 1996)

record of proceeding shall be forwarded to the Board upon the request or the order of the Board.

(b) Appeal from decision of a Service officer. If an appeal is taken from a decision of a Service officer, the record of proceeding shall be forwarded to the Board by the Service officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs. A Service officer need not forward such an appeal to the Board, but may reopen and reconsider any decision made by the officer if the new decision will grant the benefit that has been requested in the appeal. The new decision must be served on the appealing party within 45 days of receipt of any briefs or upon expiration of the time allowed for the submission of any briefs. If the new decision is not served within these time limits or the appealing party does not agree that the new decision disposes of the matter, the record of proceeding shall be immediately forwarded to the Board.

[61 FR 18907, Apr. 29, 1996)

83.4 Withdrawal of appeal.

In any case in which an appeal has been taken, the party taking the appeal may file a written withdrawal thereof with the office at which the notice of appeal was filed. If the record in the case has not been forwarded to the Board on appeal in accordance with $3.5, the decision made in the case shall be final to the same extent as if no appeal had been taken. If the record has been forwarded on appeal, the withdrawal of the appeal shall be forwarded to the Board and, if no decision in the case has been made on the appeal, the record shall be returned and the initial decision shall be final to the same extent as if no appeal had been taken. If a decision on the appeal has been made by the Board in the case, further action shall be taken in accordance therewith. Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken. Departure from the United States of a person who is the subject of deportation or removal proceedings, except for arriving aliens as defined in $1.1(q) of this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken. (61 FR 18907, Apr. 29, 1996, as amended at 62 FR 10331, Mar. 6, 1997)

83.6 Stay of execution of decision.

(a) Except as provided under $236.1 of this chapter, $3.19(i), and paragraph (b) of this section, the decision in any proceeding under this chapter from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such decision be executed while an appeal is pending or while a case is before the Board by way of certification.

(b) The provisions of paragraph (a) of this section shall not apply to an order of an Immigration Judge under $3.23 or $242.22 of this chapter denying a motion to reopen or reconsider or to stay deportation, except where such order expressly grants a stay or where the motion was filed pursuant to the provisions of $3.23(b)(4)(iii). The Board may, in its discretion, stay deportation while an appeal is pending from any such order if no stay has been granted by the Immigration Judge or a Service officer. [61 FR 18907, Apr. 29, 1996; 61 FR 21065, May 9, 1996, as amended at 63 FR 27448, May 19, 1998)

83.5 Forwarding of record on appeal.

(a) Appeal from decision of an Immigration Judge. If an appeal is taken from a decision of an Immigration Judge, the

83.7 Notice of certification.

Whenever, in accordance with the provisions of 83.1(c), case is certified to the Board, the alien or other party affected shall be given notice of certification. An Immigration Judge or Service officer may certify a case only after an initial decision has been made and before an appeal has been taken. If it is known at the time the initial decision is rendered that the case will be certified, the notice of certification shall be included in such decision and no further notice of certification shall be required. If it is not known until after the initial decision is rendered that the case will be certified, the office of the Service or the Immigration Court having administrative control over the record of proceeding shall cause a Notice of Certification to be served upon the parties. In either case, the notice shall inform the parties that the case is required to be certified to the Board and that they have the right to make representations before the Board, including the making of a request for oral argument and the submission of a brief. If either party desires to submit a brief, it shall be submitted to the office of the Service or the Immigration Court having administrative control over the record of proceeding for transmittal to the Board within the time prescribed in $3.3(c). The case shall be certified and forwarded to the Board by the office of the Service or Immigration Court having administrative jurisdiction over the case upon receipt of the brief, or upon the expiration of the time within which the brief may be submitted, or upon receipt of a written waiver of the right to submit a brief. The Board in its discretion may elect to accept for review or not accept for review any such certified case. If the Board declines to accept a certified case for review, the underlying decision shall become final on the date the Board declined to accept the case. (61 FR 18907, Apr. 29, 1996)

tice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) filed pursuant to $3.3(a), or a motion related to Immigration Judge proceedings that is within the jurisdiction of the Board and is filed directly with the Board pursuant to $3.2(g), shall be accompanied by the fee specified in applicable provisions of $103.7(b)(1) of this chapter. Fees shall be paid by check or money order payable to the “United States Department of Justice.” Remittances must be drawn on a bank or other institution located in the United States and be payable in United States currency. A remittance shall not satisfy the fee requirements of this section if the remittance is found uncollectible.

(b) Appeal from decision of a Service officer or motion within the jurisdiction of the Board. Except as provided in paragraph (c) of this section, a Notice of Appeal to the Board of Immigration Appeals of Decision of District Director (Form EOIR-29), or a motion related to such a case filed under this part by any person other than an officer of the Service, filed directly with the Service shall be accompanied by the appropriate fee specified, and remitted in accordance with the provisions of $103.7 of this chapter.

(c) Waiver of fees. The Board may, in its discretion, authorize the prosecution of any appeal or any motion over which the Board has jurisdiction without payment of the required fee. In any case in which an alien or other party affected is unable to pay the fee fixed for an appeal or motion, he or she shall file with the Notice of Appeal (Form EOIR-26 or Form EOIR-29) or motion, an Appeal Fee Waiver Request, (Form EOIR-26A). If the request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.

(61 FR 18907, Apr. 29, 1996)

Subpart B-Immigration Court

83.8 Fees.

(a) Appeal from decision of an Immigration Judge of motion within the jurisdiction of the Board. Except as provided in paragraph (c) of this section or when filed by an officer of the Service, a No

SOURCE: 62 FR 10331, Mar. 6, 1997, unless otherwise noted.

tion Judges, including, but not limited to, deportation, exclusion, removal, bond, rescission, departure control, asylum proceedings, and disciplinary proceedings under $ 292.3 of this chapter. The sole procedures for review of credible fear determinations by Immigration Judges are provided for in $3.42.

83.9 Chief Immigration Judge.

The Chief Immigration Judge shall be responsible for the general supervision, direction, and scheduling of the Immigration Judges in the conduct of the various programs assigned to them. The Chief Immigration Judge shall be assisted by Deputy Chief Immigration Judges and Assistant Chief Immigration Judges in the performance of his or her duties. These shall include, but are not limited to:

(a) Establishment of operational policies; and

(b) Evaluation of the performance of Immigration Courts, making appropriate reports and inspections, and taking corrective action where indicated.

(57 FR 11571, Apr. 6, 1992, as amended at 62 FR 10331, Mar. 6, 1997]

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83.10 Immigration Judges.

Immigration Judges, as defined in 8 CFR part 1, shall exercise the powers and duties in this chapter regarding the conduct of exclusion, deportation, removal, and asylum proceedings and such other proceedings which the Attorney General may assign them to conduct.

83.11 Administrative control Immigra

tion Courts. An administrative control Immigration Court is one that creates and maintains Records of Proceedings for Immigration Courts within an assigned geographical area. All documents and correspondence pertaining to a Record of Proceeding shall be filed with the Immigration Court having administrative control over that Record of Proceeding and shall not be filed with any other Immigration Court. A list of the administrative control Immigration Courts with their assigned geographical areas will be made available to the public at any Immigration Court.

83.13 Definitions.

As used in this subpart:

Administrative control means custodial responsibility for the Record of Proceeding as specified in 83.11.

Charging document means the written instrument which initiates proceeding before an Immigration Judge. For proceedings initiated prior to April 1, 1997, these documents include an Order to Show Cause, a Notice to Applicant for Admission Detained for Hearing before Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. For proceedings initiated after April 1, 1997, these documents include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.

Filing means the actual receipt of a document by the appropriate Immigration Court.

Service means physically presenting or mailing a document to the appropriate party or parties; except that an Order to Show Cause or Notice of Deportation Hearing shall be served in person to the alien, or by certified mail to the alien or the alien's attorney and a Notice to Appear or Notice of Removal Hearing shall be served to the alien in person, or if personal service is not practicable, shall be served by regular mail to the alien or the alien's attorney of record.

Subpart c-Immigration Court

Rules of Procedure

[62 FR 10332, Mar. 6, 1997)

83.12 Scope of rules.

These rules are promulgated to assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges. Except where specifically stated, the rules in this subpart apply to matters before Immigra

83.14 Jurisdiction and commencement

of proceedings. (a) Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document

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