Code of Federal Regulations: Containing a Codification of Documents of ...

(6) Decisions on applications for the exercise of the discretionary authority contained in section 212(d)(3) of the act as provided in Part 212 of this chapter.

(7) Determinations relating to bond, parole, or detention of an alien as provided in Part 242 of this chapter.

(8) Decisions of special inquiry officers in rescission of adjustment of status cases, as provided in Part 246 of this chapter.

(c) Jurisdiction by certification. The Commissioner, or any other duly authorized officer of the Service, or the Board may in any case arising under paragraph (b) of this section require certification of such case to the Board. (d) Powers of the Board. (1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.

(1-a) Summary dismissal of appeals. Notwithstanding the provisions of paragraph (e) of this section, the Board may deny oral argument concerning, and summarily dismiss, any appeal in any deportation proceeding under Part 242 of this chapter in any case in which (i) the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal), (ii) the only reason specified by the party concerned for his appeal involves a finding of fact or a conclusion of law which was conceded by him at the hearing, (iii) the appeal is from an order that granted the party concerned the relief which he requested, or (iv) the Board is satisfied, from a review of the record, that the appeal is frivolous and filed solely for purpose of delay.

(2) Finality of decision. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. The Board may return a case to the Service for such further action as may be appropriate, without entering a final decision on the merits of the case.

(3) Rules of practice; discipline of attorneys and representatives. The

Board shall have authority, with the approval of the Attorney General, to prescribe rules governing proceedings before it. It shall also determine whether any organization desiring representation is of a kind described in § 1.1(j) of this chapter, and shall regulate the conduct of, and may disbar for cause, attorneys, representatives of organizations, and others who appear in a representative capacity before the Board or the Service.

(e) Oral argument. Oral argument shall be heard by the Board, upon request, in any case over which the Board acquires jurisdiction by appeal or certification as provided in this part, except that oral argument shall not be heard on appeal from an order of a special inquiry officer under § 242.22 of this chapter denying a motion to reopen or reconsider or to stay deportation, unless the Board specifically directs that oral argument be granted. If an appeal has been taken, request for oral argument, if desired, shall be included in the Notice of Appeal. The Board shall have authority to fix any date or change any date upon which oral argument is to be heard. The Service may be represented in argument before the Board by an officer of the Service designated by the Commissioner. The Board shall convene for the purpose of hearing oral argument at its office in Washington, D.C., at 2:00 p.m., or such other time as it may designate on every day except Saturday, Sunday, and legal holidays.

(f) Service of Board decisions. The decision of the Board shall be in writing and copies thereof shall be transmitted by the Board to the Service and a copy shall be served upon the alien or party affected as provided in Part 292 of this chapter.

(g) Decisions of the Board as precedents. Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service in the administration of the act, and selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.

(h) Referral of cases to the Attorney General. (1) The Board shall refer to

regulations as deemed necessary or appropriate for the exercise of any authority delegated to him by the Attorney General, and may redelegate any such authority to any other officer or employee of the Service.

(Sec. 201, 66 Stat. 173; 8 U.S.C. 1103, Reorg. Plan No. 2 of 1950, 15 FR 3173, 3 CFR, 1950 (Supp.))

[23 FR 9117, Nov. 26, 1958]

PART 3-BOARD OF IMMIGRATION APPEALS

Sec.

3.1 Board of Immigration Appeals. 3.2 Reopening or reconsideration. 3.3 Notice of appeal.

3.4 Withdrawal of appeal.

3.5 Forwarding of record on appeal. 3.6 Stay of execution of decision. 3.7

Notice of certification.

3.8 Motion to reopen or motion to reconsider.

AUTHORITY: Secs. 103, 292, 66 Stat. 173, 235; 8 U.S.C. 1103, 1362, sec. 2, Reorg. Plan No. 2 of 1950, 15 FR 3173, 3 CFR, 1949-1953 Comp., p. 1003, unless otherwise noted.

§ 3.1 Board of Immigration Appeals.

(a)(1) Organization. There shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Deputy Attorney General. The Board shall exercise so much of the Attorney General's power and authority under the immigration and nationality laws as he may delegate to it. The Board shall consist of a Chairman and four other members who shall be appointed by the Attorney General and shall serve at his discretion. A vacancy, or the absence or unavailability of a Board Member, shall not impair the right of the remaining members to exercise all the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board. There shall also be attached to the Board such number of attorneys and other employees as the Deputy Attorney General, upon recommendation of the Chairman, shall from time to time direct.

(2) Chairman. The Chairman shall direct, supervise and take final Board action in all matters relating to personnel, administration, and management, and shall establish internal op

erating procedures and policies of the Board. He shall designate a member of the Board to act as Chairman in his absence or unavailability. The Chairman shall be assisted in the performance of his duties by an Executive Assistant/Chief Attorney Examiner, who shall be directly responsible to the Chairman. The Executive Assistant/Chief Attorney Examiner shall serve as an Alternate Board Member when, in the absence or unavailability of a Board Member or Members, his participation is deemed necessary by the Chairman. Once designated, his participation in a case shall continue to its normal conclusion.

(3) Board Members. Board Members shall perform the quasi-judicial function of adjudicating cases coming before the Board.

(b) Appellate jurisdiction. Appeals shall lie to the Board of Immigration Appeals from the following:

(1) Decisions of special inquiry officers in exclusion cases, as provided in Part 236 of this chapter.

(2) Decisions of special inquiry officers in deportation cases, as provided in Part 242 of this chapter, except that no appeal shall lie from an order of a special inquiry officer under § 244.1 of this chapter granting voluntary departure within a period of at least 30 days, if the sole ground of appeal is that a greater period of departure time should have been fixed.

(3) Decisions on applications for the exercise of the discretionary authority contained in section 212(c) of the act, as provided in Part 212 of this chapter.

(4) Decisions involving administrative fines and penalties, including mitigation thereof, as provided in Part 280 of this chapter.

(5) Decisions on petitions filed in accordance with section 204 of the act (except petitions to accord preference classifications under section 203(a)(3) or section 203(a)(6) of the act, or a petition on behalf of a child described in section 101(b)(1)(F) of the act), and decisions on requests for revalidation and decisions revoking the approval of such petitions, in accordance with section 205 of the act, as provided in Parts 204 and 205, respectively, of this chapter.

(6) Decisions on applications for the exercise of the discretionary authority contained in section 212(d)(3) of the act as provided in Part 212 of this chapter.

(7) Determinations relating to bond, parole, or detention of an alien as provided in Part 242 of this chapter.

(8) Decisions of special inquiry officers in rescission of adjustment of status cases, as provided in Part 246 of this chapter.

(3) Rules of practice; discipline of attorneys and representatives. The

(h) Referral of cases to the Attorney General. (1) The Board shall refer to

the Attorney General for review of its decision all cases which:

(i) The Attorney General directs the Board to refer to him.

(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.

(iii) The Commissioner requests be referred to the Attorney General for review.

(2) In any case in which the Attorney General reviews the decision of the Board, the decision of the Attorney General shall be stated in writing and shall be transmitted to the Board for transmittal and service as provided in paragraph (f) of this section.

[23 FR 9117, Nov. 26, 1958, as amended at 27 FR 96, Jan. 5, 1962; 27 FR 10789, Nov. 6, 1962; 29 FR 9709, July 18, 1964; 30 FR 14772, Nov. 30, 1965; 36 FR 316, Jan. 9, 1971; 40 FR 37207, Aug. 26, 1975]

§ 3.2 Reopening or reconsideration.

The Board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which a decision has been made by the Board, whether requested by the Commissioner or any other duly authorized officer of the Service, or by the party affected by the decision, shall be only upon written motion to the Board. Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deporta

tion proceedings occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. For the purpose of this section, any final decision made by the Commissioner prior to the effective date of the Act with respect to any case within the classes of cases enumerated in §3.1(b) (1), (2), (3), (4), or (5) shall be regarded as a decision of the Board.

[27 FR 96, Jan. 5, 1962]

§ 3.3 Notice of appeal.

(a) A party affected by a decision who is entitled under this chapter to appeal to the Board shall be given notice of his right to appeal. An appeal shall be taken by filing Notice of Appeal, Form I-290A, in triplicate, with the officer of the Service having administrative jurisdiction over the case, within the time specified in the governing sections of this chapter. 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 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. Departure from the United States of a person under deportation proceedings prior to the taking of an appeal from a decision in his case shall constitute a waiver of his right to appeal.

(b) Fees. Except as otherwise provided in this section, a notice of appeal or a motion filed under this part by any person other than an officer of the Service shall be accompanied by the appropriate fee specified by, and remitted in accordance with, the provisions of § 103.7 of this chapter. In any case in which an alien or other party affected is unable to pay the fee fixed for an appeal or a motion, he shall file with the notice of appeal or the motion of his affidavit stating the nature of the motion or appeal, his belief that he is entitled to redress, and his inability to pay the required fee, and shall request permission to prosecute the appeal or motion without prepayment of such fee. When such an affidavit is filed with the officer of the Service from whose decision

the appeal is taken or with respect to whose decision the motion is addressed, such officer shall, if he believes that the appeal or motion is not taken or made in good faith, certify in writing his reasons for such belief for consideration by the Board. The Board may, in its discretion, authorize the prosecution of any appeal or motion without prepayment of fee.

(c) Briefs. Briefs in support of or in opposition to an appeal shall be filed in triplicate with the officer of the Service having administrative jurisdiction over the case within the time fixed for appeal or within any other additional period designated by the special inquiry officer or other Service officer who made the decision. Such officer or the Board for good cause may extend the time for filing a brief or reply brief. The Board in its discretion may authorize the filing of briefs directly with it, in which event the opposing party shall be allowed a specified time to respond.

[23 FR 9118, Nov. 26, 1958, as amended by Order No. 325-64, 29 FR 14717, Oct. 29, 1964]

§3.4 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 officer with whom the notice of appeal was filed. If the appeal has been taken by a trial attorney, such written withdrawal may be made by the district director or regional commissioner having administrative jurisdiction over the case or by the General Counsel. 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 though 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 though no appeal had been taken. If a decision on the appeal shall have 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 to 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.

[29 FR 2692, Feb. 26, 1964]

§ 3.5 Forwarding of record on appeal.

If an appeal is taken from a decision, as provided in this chapter, the entire record of the proceeding shall be forwarded to the Board by the officer of the Service having administrative jurisdiction over the case upon timely receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs.

[29 FR 2692, Feb. 26, 1964]

§3.6 Stay of execution of decision.

(a) Except as provided in § 42.2 of this chapter 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 a special inquiry officer under § 242.22 of this chapter denying a motion to reopen or reconsider or to stay deportation, except when a stay pending appeal has been granted by the special inquiry officer. 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 special inquiry officer.

(c) Saving clause. Notwithstanding the provisions of paragraph (b) of this section, any stay of execution of decision existing under paragraph (a) of this section when paragraph (b) of this section becomes effective shall continue until the Board has disposed of the appeal.

[36 FR 316, Jan. 9, 1971]

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