GUZMAN

Interim Decision #3392




          In re Ana Delores GUZMAN-Arguera, Respondent

                         File A23 729 998 - Los Angeles

                               Decided May 24, 1999

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


     The Board of Immigration Appeals lacks jurisdiction to consider an appeal from an in
absentia order in removal proceedings where section 240(b)(5)(C) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(5)(C) (Supp. II 1996), provides that such an order may
only be rescinded by filing a motion to reopen with the Immigration Judge. Matter of
Gonzalez-Lopez, 

 (BIA 1993), followed.

Pro se

Margaret David, Assistant District Counsel, for the Immigration and Naturalization Service

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

MATHON, Board Member:

     In a decision dated November 3, 1997, the Immigration Judge ordered
the respondent removed from the United States following her failure to
appear for the scheduled hearing. The respondent’s appeal will be returned
to the Immigration Court without further action.
      Any alien who, after written notice has been provided, does not attend
a scheduled hearing shall be ordered removed in absentia if the Immigration
and Naturalization Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is
removable. See section 240(b)(5) of the Immigration and Nationality Act, 8
U.S.C. § 1229a(b)(5) (Supp. II 1996). Such a removal order may be rescinded if a motion to reopen is filed with the Immigration Judge within 180 days
after the date of the order of removal and if the alien demonstrates that the
failure to appear was because of exceptional circumstances. See section


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240(b)(5)(C)(i) of the Act. The motion to reopen can be filed at any time if
the alien demonstrates that he or she did not receive notice or was in Federal
or State custody and the failure to appear was through no fault of the alien.
See section 240(b)(5)(C)(ii) of the Act.
     In the context of deportation proceedings we have held that the Board
of Immigration Appeals is without authority to consider a direct appeal
from an in absentia order. See Matter of Gonzalez-Lopez, 

(BIA 1993). That holding was based on the provisions of the Act governing
in absentia orders rendered in deportation proceedings. See section 242B(c)
of the Act, 8 U.S.C. § 1252b(c) (1994). We note that the sections of the Act
governing in absentia orders in deportation proceedings are nearly identical
to those governing in absentia orders in removal proceedings. Both require
an alien who fails to appear for a hearing to file a motion to reopen before
the Immigration Judge. Only when an alien has exhausted this avenue of
relief may he or she file an appeal with the Board. We also note that the regulations state as follows:
  Pursuant to 8 CFR part 3, an appeal shall lie from a decision of an immigration judge
  to the Board of Immigration Appeals, except that no appeal shall lie from an order of
  removal entered in absentia.

 (1999). We accordingly find that the holding in Gonzalez-Lopez applies equally to removal proceedings.
     In the present case, the Immigration Judge found the respondent to be
removable following her failure to appear for a scheduled hearing. This
hearing was held in absentia pursuant to section 240(b)(5) of the Act. The
respondent now claims that she never received notice of her hearing date.
However, she failed to first file a motion to reopen with the Immigration
Judge as required by section 240(b)(5)(C) of the Act and 

.
     Accordingly, the Board lacks jurisdiction over this appeal.
     ORDER: The record is returned to the Immigration Court without
further Board action.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member, in
which Paul W. Schmidt, Chairman; Lauri S. Filppu, Lory D. Rosenberg,
and John Guendelsberger, Board Members, joined

     I agree with the majority’s conclusion that in view of our precedent in
Matter of Gonzalez-Lopez, 

 (BIA 1993), involving similar
statutory language, and 

 (1999), a motion to reopen, not
an appeal, is the appropriate procedure to challenge an in absentia order. I
would not, however, simply return the record to the Immigration Court
without further Board action.
     The record reflects that the appeal was filed within the 30-day appeal
limit and complied with the requisite fee and service requirements.

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Consequently, if treated as a motion, such motion meets the 180-day general limit for motions seeking rescission pursuant to section 240(b)(5)(C)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(5)(C)(i)
(Supp. II 1996), as well as under section 240(b)(5)(C)(ii), which has no
time limitation, since this respondent alleges that she received no notice of
her removal proceedings. Pursuant to section 240(b)(5)(C), the respondent’s
removal from the United States would be stayed pending consideration of
her contention that she did not appear because she never received notice of
her hearing. Accordingly, I would exercise the authority delegated by the
Attorney General under 

(d)(1) and (2) (1999) and return the
case to the Immigration Court for further action, treating the appeal as a
motion, as appropriate and necessary for the efficient disposition of the
case. See Matter of J-J-, 

 (BIA 1997) (Villageliu, concurring); cf. Matter of Mladineo, 

 (BIA 1974) (Board assuming jurisdiction by certification for efficiency).




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