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to filing and before the notice of deficiency was sent and the Service's notice of deficiency was not sent to the new address.
(iv) Non-payment of service fee for fingerprinting. If a check or other financial instrument used to pay a service fee for fingerprinting is subsequently returned as not payable, the remitter shall be notified and requested to pay the correct service fee for fingerprinting and any associated service charges within 14 calendar days. The Service will also notify the applicant or petitioner and, when appropriate, the applicant or petitioner's representative as defined in paragraph (a)(3) of this section, of the non-payment and request to pay. If the correct service fee for fingerprinting and associated service charges are not paid within 14 calendar days, the application or petition will be denied for failure to submit the correct service fee for fingerprinting.
EDITORIAL NOTE: For FEDERAL REGISTER CItations affecting $ 103.2, see the List of CFR Sections Affected in the Finding Aids section of this volume.
shall furnish the appropriate appeal form.
(B) Meaning of affected party. For purposes of this section and $8 103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected party may be represented by an attorney or representative in accordance with part 292 of this chapter.
(C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record of proceeding.
(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by a Service officer, a copy must be served on the affected party.
(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations.
(v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. The filing by an attorney or representative accredited under 8 CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitute frivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under $103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action against attorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation.
(2) AAU appeals in other than special agricultural worker and legalization cases-(i) Filing appeal. The affected party shall file an appeal on Form I290B. Except as otherwise provided in this chapter, the affected party must pay the fee required by $ 103.7 of this part. The affected party shall file the complete appeal including any supporting brief with the office where the unfavorable decision was made within 30 days after service of the decision.
8 103.3 Denials, appeals, and precedent
decisions. (a) Denials and appeals—(1) General(i) Denial of application or petition. When a Service officer denies an application or petition filed under $103.2 of this part, the officer shall explain in writing the specific reasons for denial. If Form I-292 (a denial form including notification of the right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I-292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. Decisions under the appellate jurisdiction of the Board of Immigration Appeals (Board) are listed in $3.1(b) of this chapter. Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in § 103.1(f)(2) of this part.
(iii) Appeal—(A) Jurisdiction. When an unfavorable decision may be appealed, the official making the decision shall state the appellate jurisdiction and
(ii) Reviewing official. The official $103.5(a)(5)(i) of this part, make a new who made the unfavorable decision decision favorable to the affected party being appealed shall review the appeal without notifying the attorney or repunless the affected party moves to a resentative. new jurisdiction. In that instance, the (iii) When favorable action not warofficial who has jurisdiction over such ranted. If the reviewing official decides a proceeding in that geographic loca- favorable action is not warranted with tion shall review it.
respect to an otherwise properly filed (iii) Favorable action instead of for appeal, that official shall ask the atwarding appeal to AAU. The reviewing torney or representative to submit official shall decide whether or not fa- Form G-28 directly to the AAU. The ofvorable action is warranted. Within 45 ficial shall also forward the appeal and days of receipt of the appeal, the re- the relating record of proceeding to the viewing official may treat the appeal AAU. The appeal may be considered as a motion to reopen or reconsider and properly filed as of its original filing take favorable action. However, that date if the attorney or representative official is not precluded from reopening submits a properly executed Form G-28 a proceeding or reconsidering a deci- entitling that person to file the appeal. sion on his or her own motion under (B) Untimely appeal-(1) Rejection $103.5(a)(5)(i) of this part in order to without refund of filing fee. An appeal make a new decision favorable to the which is not filed within the time alaffected party after 45 days of receipt lowed must be rejected as improperly of the appeal.
filed. In such a case, any filing fee the (iv) Forwarding appeal to AAU. If the Service has accepted will not be rereviewing official will not be taking fa- funded. vorable action or decides favorable ac- (2) Untimely appeal treated as motion. tion is not warranted, that official If an untimely appeal meets the reshall promptly forward the appeal and quirements of a motion to reopen as the related record of proceeding to the described in § 103.5(a)(2) of this part or AAU in Washington, DC.
a motion to reconsider as described in (v) Improperly filed appeal—(A) Appeal $103.5(a)(3) of this part, the appeal filed by person or entity not entitled to must be treated as a motion, and a defile it-(1) Rejection without refund of fil- cision must be made on the merits of ing fee. An appeal filed by a person or
the case. entity not entitled to file it must be re- (vi) Brief. The affected party may jected as improperly filed. In such a submit a brief with Form I-290B. case, any filing fee the Service has ac- (vii) Additional time to submit a brief. cepted will not be refunded.
The affected party may make a written (2) Appeal by attorney or representative request to the AAU for additional time without proper Form G-28—(i) General. If to submit a brief. The AAU may, for an appeal is filed by an attorney or rep- good cause shown, allow the affected resentative without a properly exe- party additional time to submit one. cuted Notice of Entry of Appearance as (viii) Where to submit supporting brief Attorney or Representative (Form G- if additional time is granted. If the AAU 28) entitling that person to file the ap- grants additional time, the affected peal, the appeal is considered improp- party shall submit the brief directly to erly filed. In such a case, any filing fee the AAU: the Service has accepted will not be re- (ix) Withdrawal of appeal. The affunded regardless of the action taken. fected party may withdraw the appeal,
(ii) When favorable action warranted. If in writing, before a decision is made. the reviewing official decides favorable (x) Decision on appeal. The decision action is warranted with respect to an must be in writing. A copy of the deciotherwise properly filed appeal, that sion must be served on the affected official shall ask the attorney or rep- party and the attorney or representaresentative to submit Form G-28 to the tive of record, if any. official's office within 15 days of the re- (3) Denials and appeals of special agriquest. If Form G-28 is not submitted cultural worker and legalization applicawithin the time allowed, the official tions and termination of lawful temporary may, on his or her own motion, under resident status under sections 210 and
245A. (i) Whenever an application for legalization or special agricultural worker status is denied or the status of a lawful temporary resident is terminated, the alien shall be given written notice setting forth the specific reasons for the denial on Form I-692, Notice of Denial. Form 1-692 shall also contain advice to the applicant that he or she may appeal the decision and that such appeal must be taken within 30 days after service of the notification of decision accompanied by any additional new evidence, and a supporting brief if desired. The Form 1-692 shall additionally provide a notice to the alien that if he or she fails to file an appeal from the decision, the Form I692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be accompanied by the appropriate fee. Form 1-694 shall be furnished with the notice of denial at the time of service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by $103.1(f)(2) of this part for review and decision. The decision on the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of ineligibility. A copy of the decision shall be served upon the applicant and his or her attorney or representative of record. No further administrative appeal shall lie from this decision, nor may the application be filed or reopened before an immigration judge or the Board of Immigration Appeals during exclusion or deportation proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the application for adjustment of status under section 210 or 245A in a timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal received after the thirty (30) day period has tolled will not be accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker petitions and waivers and termination of lawful temporary resident status under section 210A.
(i) Whenever a petition for Replenishment Agricultural Worker status, or a request for a waiver incident to such filing, is denied in accordance with the provisions of part 210a of this title, the alien shall be given written notice setting forth the specific reasons for the denial on Form I-692, Notice of Denial. Form I-692 shall also contain advice to the alien that he or she may appeal the decision and that such appeal must be taken within thirty (30) days after service of the notification of decision accompanied by any additional new evidence, and a supporting brief if desired. The Form I-692 shall additionally provide a notice to the alien that if he or she fails to file an appeal from the decision, the Form 1-692 shall serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be accompanied by the appropriate fee. Form I-694 shall be furnished with the notice of denial at the time of service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by $103.1(f)(2) of this part for review and decision. The decision on the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of ineligibility. A copy of the decision shall be served upon the petitioner and his or her attorney or representative of record. No further administrative appeal shall lie from this decision, nor may the petition be filed or reopened before an immigration judge or the Board of Immigration Appeals during exclusion or deportation proceedings.
(iv) Any appeal which is filed that: Fails to state the reason for the appeal; is filed solely on the basis of a denial for failure to file the petition for adjustment of status under part 210a of this title in a timely manner; or is patently frivolous, will be summarily dismissed. An appeal received after the thirty (30) day period has tolled will not be accepted for processing.
(b) Oral argument regarding appeal before AAU—(1) Request. If the affected party desires oral argument, the affected party must explain in writing
specifically why oral argument is nec- to submit a brief, the affected party essary. For such a request to be consid- may waive the 30-day period. ered, it must be submitted within the (3) Favorable action. The Service offitime allowed for meeting other re- cer to whom a case is certified may quirements.
suspend the 30-day period for submis(2) Decision about oral argument. The sion of a brief if that officer takes acService has sole authority to grant or tion favorable to the affected party. deny a request for oral argument. Upon (4) Initial decision. A case within the approval of a request for oral argu- appellate jurisdiction of the Associate ment, the AAU shall set the time, date, Commissioner, Examinations, or for place, and conditions of oral argument.
which there is no appeal procedure may (c) Service precedent decisions. In addi- be certified only after an initial decition to Attorney General and Board de- sion is made. cisions referred to in $3.1(g) of this (5) Certification to AAU. A case dechapter, designated Service decisions scribed in paragraph (a)(4) of this secare to serve as precedents in all pro
tion may be certified to the AAU. ceedings involving the same issue(s).
(6) Appeal to Board. In a case within Except as these decisions may be modi
the Board's appellate jurisdiction, an fied or overruled by later precedent de
unfavorable decision of the Service ofcisions, they are binding on all Service
ficial to whom the case is certified employees in the administration of the
(whether made initially or upon reAct. Precedent decisions must be pub
view) is the decision which may be aplished and made available to the public pealed to the Board under $3.1(b) of as described in § 103.9(a) of this part.
(7) Other applicable provisions. The (31 FR 3062, Feb. 24, 1966, as amended at 37
provisions of $103.3(a)(2)(x) of this part FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11,
also apply to decisions on certified 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192,
cases. The provisions of $ 103.3(b) of this May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 FR 23345, June 7,
part also apply to requests for oral ar1990; 57 FR 11573, Apr. 6, 1992]
gument regarding certified cases con
sidered by the AAU. $ 103.4 Certifications.
(b) Certification of denials of special ag(a) Certification of other than special
ricultural worker and legalization appliagricultural worker and legalization
cations. The Regional Processing Facilcases (1) General. The Commissioner
ity director or the district director or the Commissioner's delegate may di
may, in accordance with paragraph (a) rect that any case or class of cases be
of this section, certify a decision to the certified to another Service official for
Associate Commissioner, Examinations decision. In addition, regional commis
(Administrative Appeals Unit) (the apsioners, regional service center direc
pellate authority designated in tors, district directors, officers in
$ 103.1(f)(2)) of this part, when the case charge in districts 33 (Bangkok, Thai
involves an unusually complex or novel land), 35 (Mexico City, Mexico), and 37
question of law or fact. (Rome, Italy), and the Director, Na- (52 FR 661, Jan. 8, 1987, as amended at 53 FR tional Fines Office, may certify their 43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990) decisions to the appropriate appellate authority (as designated in this chap
8 103.5 Reopening or reconsideration. ter) when the case involves an unusu- (a) Motions to reopen or reconsider in ally complex or novel issue of law or other than special agricultural worker fact.
and legalization cases—(1) When filed by (2) Notice to affected party. When a affected party-(i) General. Except case is certified to a Service officer, where the Board has jurisdiction and as the official certifying the case shall no- otherwise provided in 8 CFR parts 3, tify the affected party using a Notice 210, 242 and 245a, when the affected of Certification (Form I-290C). The af- party files a motion, the official having fected party may submit a brief to the jurisdiction may, for proper officer to whom the case is certified shown, reopen the proceeding or reconwithin 30 days after service of the no- sider the prior decision. Motions to retice. If the affected party does not wish open or reconsider are not applicable to
proceedings described in $274a.9 of this chapter. Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.
(ii) Jurisdiction. The official having jurisdiction is the official who made the latest decision in the proceeding unless the affected party moves to a new jurisdiction. In that instance, the new official having jurisdiction is the official over such a proceeding in the new geographical locations.
(iii) Filing Requirements- A motion shall be submitted on Form I-290A, and may be accompanied by a brief. It must be
(A) In writing and signed by the affected party or the attorney or representative of record, if any;
(B) Accompanied by a nonrefundable fee as set forth in 103.7;
(C) Accompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding;
(D) Addressed to the official having jurisdiction; and
(E) Submitted to the office maintaining the record upon which the unfavorable decision was made for forwarding to the official having jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date.
(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or pe
tition denied due to abandonment must be filed with evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of eligibility;
(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or
(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.
(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
(4) Processing motions in proceedings before the Service. A motion that does not meet applicable requirements shall be dismissed. Where a motion to reopen is granted, the proceeding shall be reopened. The notice and any favorable decision may be combined.
(5) Motion by Service officer-(i) Service motion with decision favorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision in order to make a new decision favorable to the affected party, the Service officer shall combine the motion and the favorable decision in one action.
(ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her