GONZALEZ-LOPEZ

Interim Decision #3198




                  MATTER OF GONZALEZ-LOPEZ

                          In Deportation Proceedings
                                     A-72016426
                      Decided by Board March 9, 1993

(1)The Board of Immigration Appeals is without authority to consider an appeal from
  an in absentia order made under the deportation procedures specified under section
  242(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § I252(b)(1) (Supp. II
  1990), and section 242B(c)(l) of the Act, 8 U.S.C. § 1252b(c)(1) (Supp. HI 1991),
  where section 242B(cX3) of the Act clearly shows that any in absentia order made
  under these new deportation procedures may only be rescinded by filing a motion to
  reopen with the innuig,tativn judge.
(2) An alien may take an appeal to the Board of Immigration Appeals from an
  immigration judge's denial of a motion to reopen filed for purposes of seeking the
  rescission of the immigration judge's in absentia order pursuant to section 242B(c)(3)
  of the Act.
(3) An alien may properly appeal an immigration judge's in absentia order to the Board
  of Immigration Appeals, or file a motion to reopen with the immigration judge in the
  circumstances set forth in Matter of Haim, 

 (BIA 1988), if the in
  absentia order was rendered in exclusion proceedings or in deportation proceedings
  where service or attempted service of the notice of the hearing for which the alien
  failed to appear was made prior to June 13, 1992, the effective date for the new
  deportation procedures specified in section 242B of the Act_
CHARGE:
Order. Act of 1952—Sec. 241(a)(1)(B) [

(a)(1)(B)j—Entered without
                        inspection

ON BEHALF OF RESPONDENT:                            ON BEHALF OF SERVICE
 Vernon D. Gutjahr, Esquire                           William C. Peterson
  3434 Haines Way. Suite 102                          General Attorney
 Falls Church, Virginia 22041

BY: Milhollan, Chairman; Morris, Vacca, and Heilman, Board Members


   In a decision dated September 21, 1992, an immigration judge
found the respondent deportable as charged under section 24 1(a)(1)(B)
of the Immigration and Nationality Act, 

(a)(1)(B)
(Supp. II 1990), as an alien who had entered the United States without
inspection, and ordered him deported from the United States to El
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                                                            Interim Decision #3198

Salvador. The decision was rendered following a hearing held in
absentia due to the respondent's failure to appear. The respondent has
appealed from that decision. However, the record will be returned to
the Office of the Immigration Judge without further Board action, as
we are precluded by statute from considering the appeal.
   Section 242(b) of the Act, 

(b) (Supp. II 1990), in
pertinent part, provides as follows:
   If any alien has been given a reasonable opportunity to be present at a proceeding
   under this section, and without reasonable cause fails or refuses to attend or remain
   in attendance at such proceeding, the special inquiry officer may proceed to a
   determination in like manner as if the alien were present.
   The Board has for some time had the authority to consider direct
appeals from an immigration judge's in absentia order. See generally 

(b)(1), (2) (1992). However, the deportation proceedings
in the case before us, including the issuance and service of the Order to
Show Cause and Notice of Hearing (Form 1-221) on July 26, 1992, the
subsequent notice of the date of the hearing in question, and the in
absentia hearing were conducted under the deportation procedures
specified in newly effective section 242B of the Act, 8 U.S.C. § 1252b
(Supp. III 1991). Section 242B, which was inserted in the Act by
section 545(a) of the Immigration Act of 1990, 

 Stat. 4978, 5061, and was amended by section 306(b)(6) of the
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L No. 102-232, 

, 1753, became
effective as to subsections (a), (b), (c), and (e)(1) on June 13, 1992. See
section 545(g) of the Immigration Act of 1990, 104 Stat. at 5066; see
also 

 (1992); 

, 38,464 (1991).
Section 242B(c) of the Act was properly applicable to the deportation
proceedings before us. That section provides in pertinent part:
      (I) IN GENERAL.- Any alien who, after written notice required under subsection
  (a)(2) has been provided to the alien or the alien's counsel of record, does not attend
  a proceeding under section 242, shall be ordered deported under section 242(b)(1) in
  absentia if the Service establishes by clear, unequivocal, and convincing evidence
  that, the written notice was so provided and that the alien is deportable. The written
  notice by the Attorney General shall be considered sufficient for purposes of this
  paragraph if provided at the most recent address provided under subsection (a)(1)(F).
     (2) NO NOTICE IF FAILURE TO PROVIDE ADDRESS INFORMATION.- No
  written notice shall be required under paragraph (1) if the alien has failed to provide
  the address required under subsection (aXl)(F).
Sections 242B(c)(1), (2) of the Act.
   On appeal to this Board, the respondent contends through counsel
that she was not afforded proper notice of her hearing. However, the
Board is without authority to consider her appeal, as we are precluded
from doing so by section 242B(c)(3) of the Act. That section provides:
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Interim Decision #3198

  RESCISSION OF ORDER.- Such an order may be rescinded only—
     (A) upon a motion to reopen filed within 180 days after the date of the order of
  deportation if the alien demonstrates that the failure to appear was because of
  exceptional circumstances (as defined in subsection (f)(2)), or
      (B)upon a motion to reopen filed at any time if the alien demonstrates that the
  alien did not receive notice in accordance with subsection (a)(2) or the alien
  demonstrates that the alien was in Federal or State custody and did not appear
  through no fault of the alien
  The filing of the motion to reopen described in subparagraph (A) or (B) shall stay the
  deportation of the alien pending disposition of the motion.
Section 242B(c)(3) of the Act.
   These provisions clearly show that any in absentia order made
under sections 242(b)(1) and 242B(c)(1) of the Act may only be
rescinded by filing a motion to reopen with the immigration judge.
The use of the term "only" makes this the exclusive method of
reviewing the in absentia order. It is the immigration judge with whom
the motion must be filed and who must act on the motion. We note
that section 242B(c)(3) specifically provides that filing of the motion
shall stay the deportation of the alien. The alien may take an appeal to
the Board if the motion to reopen is denied by the immigration judge.
See 

(b), 3.3 (1992). In sum, the proper course for the
respondent in the case before us is to file a motion to reopen with the
immigration judge in order to make her contention regarding the lack
of proper notice.
   We would emphasize that the previously followed procedures for
administrative review still remain in effect where an in absentia order
is made in exclusion proceedings, or in deportation proceedings
following service or attempted service of the notice of a hearing, for
which the alien failed to appear, made prior to June 13, 1992, the
effective date for the procedures specified in section 242B of the Act.
In these circumstances, the alien may still appeal the in absentia order
to the Board, or, particularly where the cause of the alien's failure to
appear relates to facts not before the immigration judge at the time of
the decision, he can file a motion to reopen the proceedings with the
immigration judge, as set forth in Matter of Haim, 

(BIA 1988).
   IT IS ORDERED that the record be returned to the Office of the
Immigration Judge without further Board action.




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