MANCERA

                                               Interim Decision #3353




               In re Edgar MANCERA-Monroy, Respondent

                   File A27 945 884 - Port Isabel

                        Decided July 1, 1998


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


  A motion to reopen deportation proceedings conducted in absentia
pursuant to section 242(b) of the Immigration and Nationality Act,

(b)(1994), that demonstrates a lack of notice of the
scheduled hearing is excepted from the regulatory time limitations
on motions.


Antonio R. Espinosa, Esquire, for the respondent

Kenneth M. Muir, Assistant District Counsel, for the Immigration and
Naturalization Service


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


SCHMIDT, Chairman:


 In an order dated July 29, 1997, an Immigration Judge denied the
respondent’s motion to reopen deportation proceedings, which had
been conducted in absentia pursuant to section 242(b) of the
Immigration and Nationality Act, 

(b) (1994). The
respondent has filed a timely appeal from that order.      For the
following reasons, we will sustain the respondent’s appeal, vacate
the Immigration Judge’s decision, and remand the record to the
Immigration Court for further proceedings consistent with this
opinion.




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Interim Decision #3353




                      I.   FACTUAL BACKGROUND

 The record reveals that on July 17, 1987, the respondent, a native
and citizen of Colombia, entered the United States near Brownsville,
Texas, without inspection.     The Immigration and Naturalization
Service personally served the respondent with an Order to Show Cause
and Notice of Hearing (Form I-221) on July 19, 1987, and
subsequently released him from custody. When the respondent failed
to appear for his deportation hearing on October 27, 1987, the
Immigration Judge found him deportable and ordered him deported in
absentia pursuant to section 242(b) of the Act.1 Nearly 10 years
later, on July 9, 1997, the respondent filed a motion to reopen
proceedings,   with   supporting   documentation,    alleging   that
“reasonable cause” excused his absence because he did not receive
notice of the hearing.

 The Immigration Judge denied the respondent’s motion to reopen
after determining that it was not filed in a timely manner. The
Immigration Judge concluded that the respondent’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 

,


1
  Prior to June 13, 1992, section 242(b) of the Act governed all
deportation proceedings. See Morales v. INS, 

, 147 n.4
(5th Cir. 1997); Matter of W-F-, Interim Decision 3288, at 5 n.2
(BIA 1996). Deportation proceedings involving notices of hearing
issued between June 13, 1992, and March 31, 1997, were governed by
section 242B of the Act, 8 U.S.C. § 1252b, which was added by
Congress in the Immigration Act of 1990, 

(a), 

, 5061-66 (enacted Nov. 29, 1990), and was
amended by the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, 

(b)(6),

, 1753 (enacted Dec. 12, 1991). Effective April 1,
1997, the relevant provisions of sections 242 and 242B were deleted
from the Act.      See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of 

 306(a), 308(b)(6), 

-546, 3009-607, 3009-615
(enacted Sept. 30, 1996) (“IIRIRA”). 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 sections 239, 240 of the Act,

, 1229a (Supp. II 1996), enacted by IIRIRA § 304,
110 Stat. at 3009-587.

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                                             Interim Decision #3353




10,333 (1997) (to be codified at 

(b)(1) (interim,
effective Apr. 1, 1997). The Immigration Judge also concluded that
the respondent had not demonstrated a lack of notice of the hearing.


                           II.   ANALYSIS

  We find that the respondent’s motion to reopen deportation
proceedings in this case was not untimely filed. As the Immigration
Judge correctly recognized, the federal regulations at 

(b)(1) provide 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 later.” See also 

, 10,330 (1997) (to be codified at 

(c)(2))
(interim, effective Apr. 1, 1997) (regarding motions to reopen or
reconsider filed before 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.”

 However, the regulations provide specific exceptions to the general
time and numerical limitations on motions to reopen or reconsider.
See, e.g., Matter of J-J-, Interim Decision 3323 (BIA 1997)
(discussing the exception for changed country conditions in the
asylum context). For example, the limitations on motions to reopen
do not apply to orders entered in absentia in deportation
proceedings. See 

(b)(1), (4)(iii). Thus 

(b)(4)(iii)(A) provides:

    An order entered in absentia in deportation proceedings may
    be rescinded only upon a motion to reopen filed:

      (1) 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
      beyond the control of the alien (e.g., serious illness
      of the alien or serious illness or death of an immediate
      relative of the alien, but not including less compelling
      circumstances); or

      (2) At any time if the alien demonstrates that he or she
      did not receive notice or if the alien demonstrates that
      he or she was in federal or state custody and the
      failure to appear was through no fault of the alien.

(Emphasis added.)

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Interim Decision #3353




 The record contains no evidence that the respondent received notice
of his deportation hearing, which was conducted on October 27, 1987.
See Matter of Munoz-Santos, 

 (BIA 1990) (discussing
notice under section 242(b) of the Act); Matter of Lopez-Barrios, 

 (BIA 1990) (same). Included in the record is an order
by an Immigration Judge dated August 24, 1987, which states that the
deportation proceedings scheduled for that date were reset for a
hearing on September 8, 1987.      This order was served upon the
respondent on August 24, 1987. However, the record is devoid of any
evidence that the respondent was notified that the hearing was
subsequently rescheduled for October 27, 1987, and the respondent
has averred that he did not receive such notice. Therefore, we find
that the respondent has demonstrated that the lack of notice excused
his absence from the rescheduled deportation hearing. See Matter of
Patel, 

 (BIA 1985), aff’d, 

 (5th Cir.
1986); Matter of Marallag, 

 (BIA 1971). Accordingly,
we conclude that the Immigration Judge erred in finding that the
respondent’s motion did not fall into the time limitation exception
of 

(b)(4)(A)(iii)(2) for motions to reopen
deportation proceedings conducted in absentia that demonstrate a
lack of notice.


                         III.   CONCLUSION

 We find that the respondent’s motion to reopen filed with the
Immigration Judge was not barred by the regulatory time limitations.
As addressed above, the respondent has established that a lack of
notice justified his failure to appear at the scheduled deportation
hearing. Accordingly, the following orders are entered.

 ORDER: The respondent’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 Court for further proceedings consistent
with the foregoing opinion and the entry of a new decision.




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