N-B

Interim Decision #3381




                             In re N-B-, Applicant


                             Decided March 24, 1999

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


    The regulatory language at 

(b)(4)(iii)(B) (1998) contains no time or
numerical limitations on aliens who wish to file a motion to reopen exclusion proceedings
conducted in absentia.

Nora S. Markman, Esquire, New York, New York, for applicant

Before:   Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
          HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, GUENDELSBERGER, JONES, GRANT, SCIALABBA, and
          MOSCATO, Board Members.

MATHON, Board Member:

     In an order dated September 18, 1997, an Immigration Judge denied the
applicant’s motion to reopen exclusion proceedings, which had been conducted in absentia. The applicant has filed a timely appeal from the
Immigration Judge’s order, supported by an appellate brief. The
Immigration and Naturalization Service has not filed a brief in opposition
to the appeal. For the following reasons, we will sustain the applicant’s
appeal and remand the record to the Immigration Judge for further proceedings consistent with this opinion.


                         I. FACTUAL BACKGROUND

     The record reveals that on October 17, 1995, the applicant, a native and
citizen of Morocco, arrived in the United States without possessing a valid,
unexpired immigrant visa and was served with a Notice to Applicant for
Admission Deferred for Hearing Before Immigration Judge (Form I-122).
The applicant was subsequently given proper written notice of an exclusion
hearing scheduled for December 15, 1995. When the applicant failed to
appear for her scheduled hearing, the Immigration Judge found her inad-

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missible and ordered that she be excluded and deported from the United
States. On August 19, 1997, the applicant filed a motion to reopen proceedings, with supporting documentation, alleging that her severe illness, which
necessitated surgery, prevented her attendance at the scheduled hearing.
     The Immigration Judge denied the applicant’s motion to reopen after
determining that it was not filed in a timely manner. The Immigration
Judge concluded that the applicant’s motion did not fall into any of the
exceptions to the regulatory directive that only one motion to reopen may
be filed and that it must be filed within 90 days of the final administrative
order or on or before September 30, 1996, whichever is later. See 

(b)(1) (1998).


                                     II. ANALYSIS

     We find that the applicant’s motion to reopen exclusion proceedings in
this case was timely filed. The statute governing exclusion proceedings is
silent as to whether an order of exclusion may be entered in absentia. See
section 236 of the Immigration and Nationality Act, 

(1994).1 Nonetheless, we have held that just as an Immigration Judge may
conduct deportation proceedings in absentia, an Immigration Judge has the
authority to conduct exclusion proceedings in absentia. See Matter of S-A-,

 (BIA 1997); Matter of Nafi, 

 (BIA
1987). Where an alien later establishes that he had reasonable cause for his
failure to appear, the Immigration Judge’s order may be vacated and proceedings may be reopened, or the alien may appeal the adverse decision
directly to the Board. Matter of Ruiz, 

 (BIA 1989);
Matter of Haim, 

 (BIA 1988); Matter of Nafi,
supra, at 432; cf. De Morales v. INS, 

 (5th Cir. 1997).
     Federal regulations govern time and numerical limitations on motions
to reopen removal, deportation, and exclusion proceedings. As the
Immigration Judge correctly recognized, the regulation at 

(b)(1) provides generally that “[a] motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before September 30, 1996, whichever is

      1
       Until April 1, 1997, exclusion proceedings were governed by section 236 of the Act.
Effective April 1, 1997, the relevant provisions of section 236 were deleted from the Act by
section 303 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of 

 Stat. 3009-546, 3009-585 (enacted Sept. 30, 1996)
(“IIRIRA”). At that time removal proceedings became the sole and exclusive procedure for
determining whether an alien may be admitted to the United States or, if the alien has been so
admitted, removed from the United States. See IIRIRA § 304, 110 Stat. at 3009-587 (codified
at sections 239, 240 of the Act, 

, 1229a (Supp. II 1996)).


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later.” See also 

(c)(2) (1998) (regarding motions to reopen or
reconsider filed with the Board). Furthermore, 

(b)(1) states
that, with certain exceptions, “a party may file only one motion to reconsider and one motion to reopen proceedings.” One such example exists for
a motion to reopen in the asylum context based upon changed country conditions. Matter of J-J-, 

 (BIA 1997); 

(b)(4).
Additionally, no time and numerical limitations apply to a motion to reopen
agreed upon by all parties and jointly filed. 

(b)(4)(iv).
     At issue in this case is the regulation that provides exceptions to filing
deadlines for motions seeking to reopen orders that were “entered in absentia in deportation or exclusion proceedings.” 

(b)(4)(iii)
(emphasis added). Although the subheading at 

(b)(4)(iii)
signals that this regulation provides a time exception for motions to reopen
both deportation and exclusion proceedings conducted in absentia, the regulation itself provides a time exception only for motions to reopen deportation proceedings conducted in absentia. The regulation is silent as to what
specific time exception applies to motions to reopen exclusion proceedings
conducted in absentia. The regulation provides only a standard for reopening, stating that “[a] motion to reopen exclusion hearings on the basis that
the Immigration Judge improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for
his failure to appear.” 

(b)(4)(iii)(B) (emphasis added).
     Along with giving effect to the ordinary meaning of a provision’s
words, a fundamental guide to statutory interpretation is “common sense.”
See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1994); Matter of Villalba, Interim Decision 

 (BIA 1997) (citing First United Methodist Church of Hyattsville
v. United States Gypsum Co., 

 (4th Cir. 1989), cert.
denied, 

 (1990)). “Inasmuch as a regulation is a written
instrument the general rules of [statutory] interpretation apply.” 1A
Norman J. Singer, Sutherland Statutory Construction, § 31.06, at 532 (4th
ed. 1985). In exercising our common sense to ascertain the meaning of the
pertinent regulations in the instant case, “we construe the language in harmony with the wording and design of the [regulations] as a whole.” Matter
of Fuentes-Campos, 

, at (BIA 1997) (citing K Mart Corp.
v. Cartier, Inc., 

 (1988)).
     The regulations concerning time and numerical exceptions for motions
to reopen designate a specific subsection for motions to reopen exclusion
proceedings held in absentia. See 

(b)(4). In the design of
these regulations, that subsection is given prominence equal to the subsection which specifies that motions to reopen deportation proceedings
conducted in absentia are not bound by the general time and numerical
limitations. Compare 

(b)(4)(iii)(A) with 

(b)(4)(iii)(B). The regulation at 

(b)(4)(iii)(B) appears to

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contain a drafting oversight and thereby fails to state explicitly whether
time or numerical restrictions exist for motions to reopen exclusion proceedings conducted in absentia. Construing the existing regulatory language, we interpret this regulation as setting no time or numerical limitations on aliens who wish to reopen exclusion proceedings conducted in
absentia.2 Therefore, in the instant case, the applicant filed her motion to
reopen in a timely manner.
     As noted above, the regulation codifies the “reasonable cause” standard
at 

(b)(4)(iii)(B). In this case, the applicant argues incorrectly that the appropriate standard is “exceptional circumstances” (a more
stringent standard), found in section 242B of the Act, 8 U.S.C. § 1252b
(1994). Upon examination of the documentary evidence, we find that the
applicant has demonstrated “reasonable cause” for her absence from her
scheduled exclusion hearing. Sufficient and credible evidence of record
supports the applicant’s contention that she was suffering from a serious illness beginning approximately December 13, 1995, which necessitated surgeries on December 28, 1995, and April 15, 1996. See Matter of Ruiz, supra
(stating that an alien seeking to reopen exclusion proceedings must support
alleged facts with affidavits or other evidentiary materials).


                                    III. CONCLUSION

     Accordingly, we conclude that the applicant’s motion to reopen exclusion
proceedings conducted in absentia was not barred by the regulatory time limitations. Furthermore, as addressed above, the applicant has established that a
serious illness provided her with “reasonable cause” for missing her scheduled exclusion hearing. The following orders will therefore be entered.
     ORDER: The applicant’s appeal is sustained, and the decision of the
Immigration Judge is vacated.
     FURTHER ORDER: The proceedings are reopened, and the
record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and the entry of a new decision.

      2
       The Executive Office for Immigration Review (“EOIR”) interpreted these regulations in
a similar manner in its publication issued in May 1996 in advance of the July 1, 1996, effective
date of the regulations. See Executive Office for Immigration Review, U.S. Dep’t of Justice,
Questions and Answers Regarding EOIR’s New Appeals and Motions Procedures (1996). In this
publication, EOIR stated that motions to reopen exclusion proceedings on the basis that the
Immigration Judge improperly entered an in absentia exclusion order have “no time or number
restrictions regardless of the reason asserted in the motion for the failure to appear.” Id. at 6.
      We emphasize that our decision in the instant case “fills in” the regulatory “gap” that
exists in the current regulation. Nothing prevents the Department of Justice from revising the
current regulation to fill the regulatory gap in a manner that would create specific restrictions
on motions to reopen exclusion proceedings conducted in absentia.

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