OKOH

Interim Decision #3227




                            MATTER OF OKOH
                            In Exclusion Proceedings

                                     A-28333422

                     Decided by Board August 29, 1994

  The Board of Immigration Appeals has no jurisdiction over an alien's motion to
reconsider its prior decision in exclusion proceedings after the order is executed and the
alien has-been excluded and deported from the United States. Matter of Keyte, 

 (BIA 1990), distinguished.
EXCLUDABLE: Act of 1952—Sec. 212(a)(2)(A) (i)(11) [

(a)(2)(A)
                        (i)(11))—Controlled substance violation
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
 Alton G. Rose, Esquire                                Craig A. Harlow
  168-43 Hillside Avenue                               General Attorney
 Jamaica, New York 11432

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
    Alternate Board Member



   In a decision dated November 19, 1992, an immigration judge
noted that the applicant had previously been found excludable under
section 212(a)(2)(A)(i)(E) of the Immigration and Nationality Act, 

(a)(2)(A)(iXII) (Supp. IV 1992); found her statutorily
ineligible for relief under section 212(c) of the Act; and ordered her
excluded and deported from the United States. The Board affirmed
the immigration judge's decision in an order dated March 22, 1993.
Through counsel, the applicant filed a request for a stay of deportation
and a motion for reconsideration in November 1993. The Board
denied the stay request in an order dated December 2, 1993. The
applicant was excluded and deported from the United States on
December 14, 1993. The Immigration and Naturalization Service
opposes the motion to reconsider. 1
  We find that we lack jurisdiction to act on the motion. See generally

(b) (1994); Matter of G- y B-, 

 (BIA

  1 The Service incorrectly characterizes the motion as a motion to reopen. See Matter
of Cerna, 

 (BIA 1991), of d, 

 (11th Cir. 1992).

                                           864
                                                Interim Decision #3227

1954). In the instant case, the Board issued an order dismissing the
applicant's appeal on March 22, 1993. The filing of a motion to reopen
or a motion to reconsider does not stay the execution of any decision
in a case or extend a previously set departure date. See 

(a) (1994). The applicant's departure pursuant to the Board's
March 22, 1993, order of exclusion and deportation executed that
order and brought the exclusion proceedings to finality. We note that
under section. 106(c) of the Act, 8 U.S.C. § 1105a(c) (1988), an
exclusion or deportation order "shall not be reviewed by any court if
the alien has not exhausted the administrative remedies available to
him as of right under the immigration laws and regulations or if he has
departed from the United States after the issuance of the order." See
Castaneda v. INS, 

 (10th Cir. 1994); Roldan v.
Racette, 

 (2d Cir. 1993); Joehar v. INS, 

 (D.C. Cir. 1992); Saadi v. INS, 

 (10th Cir.
1990); Quezada v. INS, 

, 476 77 (5th Cir. 1990); McGuire
                                          -


v. INS, 

 (N.D. Cal. 1992); cf. Marrero v.
INS, 

 (3d Cir. 1993); Juarez v. INS, 732 F.211 58, 59 60-


(6th Cir. 1984); Mendez v. INS, 

 (9th Cir. 1977)
(interpreting "departed" in the context of the statute to mean a
"legally executed" departure).
   In Matter of Keyte, 

 (BIA 1990), we held that the
departure from the United States by an applicant for admission in
exclusion proceedings after the taking of an appeal from the immigration judge's order denying admission does not in and of itself
constitute withdrawal of the appeal. The instant case is distinguishable
from Matter of Keyte. In Keyte, the aliens filed an appeal from an
immigration judge's decision ordering them excluded and deported
from the United States. While their appeal was pending, the aliens
departed from the United States in September 1986. When they
returned in April 1987 and sought admission as nonimmigrant
visitors, they were again placed in exclusion proceedings. They
thereupon departed from the United States in August 1987. As we
noted in Keyte, "[t]he departure pending appeal of an alien who has
been stopped at the border and ordered excluded is not necessarily
incompatible with a design to prosecute the appeal to a conclusion."
Id. at 2.
   In Matter of Keyte, supra, the aliens' direct appeal from an
immigration judge's order was pending when they departed. In
contrast, the applicant's direct appeal in the instant case was adjudicated by the Board, which affirmed the immigration judge's decision
ordering him excluded and deported from the United States; the
applicant was excluded and deported pursuant to that order. On these
facts, the applicant's motion for reconsideration became moot when
Interim Decision #3227

the Board's order was executed and she was excluded and deported.
The holding in Matter of Keyte, supra, is limited to cases involving the
pendency of a direct appeal.
   Miens in exclusion proceedings have fewer substantive rights than
aliens in deportation proceedings. See Landon v. Plasencia, 459 T.J.S.
21 (1982). Any departure from the United States of an alien who is the
subject of deportation proceedings, occurring after the making of a
motion to reconsider or a motion to reopen, constitutes a withdrawal
of such motion. 

 (1994). In our view, it would be
anomalous to find that an alien in exclusion proceedings could pursue
a motion to reopen or reconsider following the alien's exclusion and
deportation from the United States. In this regard, we note that the
absence of a reference to exclusion proceedings in 

(1994) is not surprising or determinative, as there similarly is no
express reference to motions to reopen or reconsider in exclusion
proceedings in 

 (1994) or in the principal regulations
regarding exclusion proceedings. See 

 (1994).
  Accordingly, the following order will be entered.
  ORDER:       The record is returned to the Office of the Immigration Judge without further Board action.




                                  866