L-V-K

Interim Decision #3409




                         In re L-V-K-, Respondent

                             Decided August 10, 1999

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


  (1) An Immigration Judge’s order of deportation becomes a final administrative decision upon an alien’s waiver of the right to appeal.

  (2) Where an alien files a motion to remand during the pendency of an appeal from
  an Immigration Judge’s denial of a motion to reopen a final administrative decision
  and more than 90 days have passed since entry of that final administrative decision,
  the Board of Immigration Appeals lacks jurisdiction to adjudicate the motion because
  it is time-barred by 

(c)(2) (1999).

  Peter Popov, Esquire, Beverly Hills, California, for respondent

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

  MATHON, Board Member:

     The respondent has filed a motion requesting that we reconsider our
January 16, 1998, decision in which we denied her motion to remand the
record of proceedings to the Immigration Judge to allow her to seek adjustment of status under section 245(a) of the Immigration and Nationality Act,

(a) (1994). The motion to reconsider will be granted. Upon
reconsideration, the motion to remand will be dismissed for lack of jurisdiction.


                                       I. ISSUE

     The issue now before us is whether the Board has jurisdiction to entertain a motion to remand, filed more than 90 days after the entry of a final
administrative order, when that motion is filed while an appeal from an
Immigration Judge’s denial of a previous motion to reopen is pending.

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                      II. PROCEDURAL HISTORY

     The respondent is a native and citizen of Bulgaria who entered the
United States on July 22, 1991, as a nonimmigrant visitor. On December
16, 1991, she applied for asylum under section 208(a) of the Act, 

(a) (1988), and withholding of deportation under section 243(h)(1)
of the Act, 

(h)(1) (Supp. II 1990). On March 1, 1994, the
Immigration and Naturalization Service denied that application, and the
respondent was issued an Order to Show Cause and Notice of Hearing
(Form I-221) on September 27, 1995.
     At her deportation hearing on March 22, 1996, the respondent withdrew her application for asylum and withholding of deportation and waived
appeal. She was granted voluntary departure until January 23, 1997, with an
alternate order of deportation to Bulgaria.
     On February 27, 1997, nearly a year after the Immigration Judge’s decision became final, the respondent filed with the Immigration Judge a
motion to reopen and stay deportation based on changed circumstances in
Bulgaria. 

(c)(3)(ii) (1997). On April 11, 1997, the Immigration
Judge denied the respondent’s motion to reopen, finding that she failed to
establish prima facie eligibility for asylum and withholding of deportation.
On May 9, 1997, the respondent filed a timely appeal from the Immigration
Judge’s decision denying her motion to reopen, asserting that the
Immigration Judge incorrectly gave an expansive reading to the phrase
“changed circumstances.”
     On November 3, 1997, while her appeal to the Board was still pending,
the respondent filed a motion to remand for adjustment of status. She submitted evidence of an approved employment-based visa petition with a current priority date, but indicated that she would submit an Application to
Register Permanent Residence or Adjust Status (Form I-485) to the
Immigration Judge after the remand was granted.
     On January 16, 1998, we dismissed the respondent’s appeal, finding
that her motion to reopen to request asylum and withholding of deportation
was properly denied by the Immigration Judge. We also denied the respondent’s motion to remand because she had failed to submit the formal adjustment application as required by regulation. 

(c)(1).
     On February 17, 1998, the respondent filed this timely motion to reconsider the Board’s denial of her motion to remand. She also requested a stay
of deportation, which we need not address in light of our decision on the
motion to remand. In support of her motion, she submitted a completed
application for adjustment of status.

     III. DEFINITION OF FINAL ADMINISTRATIVE DECISION

    The question of when an order of deportation becomes “final” has been

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settled by the Board in the interest of promoting finality in deportation proceedings. In Matter of Lok, 

 (BIA 1981), aff’d, 

 (2d Cir. 1982), we determined that an administrative order is final when
the Board renders its decision in a case on appeal or certification or, where
no appeal is taken, when the time allotted for appeal has expired or the right
to appeal is waived. Id. at 105; see also 

 (1999). In the case
before us, the Immigration Judge’s decision became final at the point in the
respondent’s deportation hearing when she waived her right to appeal. See
Matter of Shih, 

 (BIA 1993). Thus, the final administrative decision was reached on March 22, 1996, when the Immigration
Judge granted the respondent voluntary departure with an alternate order of
deportation and the respondent waived appeal.


   IV. REGULATORY TIME LIMITS FOR MOTIONS TO REOPEN

     Pursuant to 

(c)(2) (1999), only one motion to reopen is
permitted. In addition, such motion must be filed with the Immigration
Judge or the Board no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be
reopened, or on or before September 30, 1996, whichever is later. 

 An
exception to the time and numerical limitations exists for motions to reopen
to apply or reapply for asylum or withholding of deportation based on
changed circumstances arising in the country of nationality, if such evidence is material and was not available and could not have been discovered
or presented at the former hearing. 

(c)(3)(ii). The motion
must state the new facts to be proved and must be supported by evidentiary
material. 

(c)(1).
     A motion to reopen that is filed during the pendency of an appeal may
be styled as a motion to remand. 

(c)(4). In substance, however, it remains a motion to reopen.
     As the final administrative decision in the instant case was rendered on
March 22, 1996, the respondent’s motion to reopen was due on or before
September 30, 1996. The respondent did not file her motion to reopen until
February 27, 1997. The respondent’s motion to reopen before the
Immigration Judge was not time-barred, however, because it was based on
alleged changed circumstances in Bulgaria and consequently fit within the
regulatory exception. 

(c)(3)(ii). The Immigration Judge nevertheless found that the respondent had failed to establish changed circumstances and denied her motion to reopen.
     In our January 16, 1998, decision, we affirmed the Immigration Judge’s
denial of the motion to reopen based on changed circumstances. We agreed
with the Immigration Judge that the respondent had not demonstrated
changed circumstances. In her subsequent motion to reconsider, the respon-

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dent does not challenge our decision to dismiss her appeal of the denial of
her motion to reopen. She focuses instead on our refusal to remand her case
to allow her to apply for adjustment of status.


                         V. MOTION TO REMAND

     On November 3, 1997, while the respondent’s appeal was pending
before the Board, the respondent filed a motion to remand for consideration
of an application for adjustment of status. We denied the motion based on
the respondent’s failure to comply with the regulatory requirement that an
application for relief must be submitted with the motion. 

(c)(1). Upon reconsideration, we find that we did not have jurisdiction
to consider the motion to remand, because this motion was, in substance, a
motion to reopen that had been filed more than 90 days after the entry of a
final administrative order.
     As indicated earlier, a motion to reopen or to reconsider a decision
rendered by an Immigration Judge that is filed while an appeal is pending
before the Board may be deemed a motion to remand for further proceedings before the Immigration Judge from whose decision the appeal was
taken. 

(b)(1), (c)(4). However, while we have the discretion to entertain such a motion, our jurisdiction to consider the motion is
contingent upon the procedural posture of the underlying merits case. 

.
     When the respondent filed her motion to remand to apply for adjustment of status, she was still under a final administrative order of deportation
because her motion to reopen had never been granted. The appeal that was
pending before the Board when she filed her motion to remand was not an
appeal of an underlying merits decision, but, rather, an appeal of a denial of
that earlier motion to reopen. This differs substantially from the situation
where a motion to remand is filed while a direct appeal from an Immigration
Judge’s initial order on the merits case is still pending before us. In the latter
case, there is no final administrative order until the Board renders its decision
on the appeal. By contrast, where an appeal is pending from the denial of a
motion to reopen by an Immigration Judge at the time a motion to remand is
filed, an underlying final administrative order still exists.
     In the case now before us, the date of the final administrative decision
has at no time changed, as the proceedings have not been reopened.
Accordingly, pursuant to the respondent’s waiver of appeal at the merits
hearing on March 22, 1996, she remains subject to the final administrative
order of deportation that the Immigration Judge rendered on that date.
Unless and until such time as the proceedings are reopened, the Board has no
jurisdiction to entertain a motion to remand, which is in substance a motion
to reopen, because the 90-day limit for filing a motion to reopen has expired.

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     Consequently, the respondent’s motion to remand must be denied for
lack of jurisdiction because the motion to remand was time-barred at the
outset. Although the current motion to reconsider corrects the defect we
originally observed in the remand motion, namely, the omission of a formal
adjustment of status application, it cannot overcome the respondent’s failure to file that motion in a timely manner. Accordingly, we find that we lack
jurisdiction over the motion to remand, and we hereby modify our January
16, 1998, decision to so reflect.


                     VI. SUA SPONTE REOPENING

     We note that the Board has discretionary authority to reopen or reconsider cases on its own motion. 

(a). We addressed the limitations on this discretion in our recent decision, Matter of J-J-, 

 (BIA 1997), where we emphasized that the power to reopen on our own
motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations when enforcing the regulations could
result in hardship. The purpose of the 1996 motions and appeals regulations
was to bring finality to immigration proceedings, not merely to prevent the
filing of dilatory or frivolous motions. 

 Only in exceptional situations
will the Board reopen proceedings sua sponte. The respondent in the case
before us does not present such a situation.


                            VII. CONCLUSION

     The respondent’s motion to reopen was denied by the Immigration
Judge, and the Board affirmed that decision. Consequently, the respondent
remains subject to the final administrative order issued by the Immigration
Judge on March 22, 1996. The Board therefore lacked jurisdiction to consider her motion to remand for adjustment of status, as her deportation proceedings were never reopened and the motion to remand was not timely
filed following the Immigration Judge’s final administrative order.
     Accordingly, upon reconsideration, we will deny the motion to remand
for lack of jurisdiction.
     ORDER: The motion to reconsider is granted.
     FURTHER ORDER: Upon reconsideration, our decision of
January 16, 1998, is modified to reflect that the respondent’s motion to
remand is denied for lack of jurisdiction.

Board Member Neil P. Miller did not participate in the decision in this case.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member, in which

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Paul W. Schmidt, Chairman; Lory D. Rosenberg, John Guendelsberger, and
Anthony C. Moscato, Board Members, joined

     I respectfully dissent from the majority’s denial of the respondent’s
motion to remand in order to have her application for adjustment of status
considered. The majority rules that it does not have jurisdiction. It does. The
majority states that its ruling promotes the finality of immigration proceedings in the respondent’s case. It does not. Finality is not synonymous with
deportability.
     The respondent is the beneficiary of an approved visa petition. Her case
is presently before us on a timely motion to reconsider an adverse decision
in her case. While her motion was pending, her priority date became current, providing her with visa availability. Consequently, rather than further
tax our scarce administrative resources reviewing her pending motion to
reconsider, the respondent, instead, requests that the case be remanded to
consider her application for adjustment of status for which she appears
prima facie eligible.
     The regulation at 

(d)(2) (1999) specifies that we can
remand any case before us for further proceedings without reaching a determination. Once a case is remanded, such a remand, unless specifically limited, is for any appropriate purpose. See Matter of Patel, 

(BIA 1978). Moreover, 

(d)(1) specifically provides the Board
with the Attorney General’s discretionary authority as appropriate and necessary for the resolution of the case.
     Congressional intent is always primarily derived from the language of
the statute enacted by Congress. Section 203(b) of the Act, 

(b) (1994), provides preference immigration status to the respondent
under the Act and thus indicates a congressional intent to allow the
respondent to immigrate to the United States. Moreover, Congress has
also enacted grandfather provisions for adjustment of status applicants
seeking the benefits of section 245(i) of the Act, 

(i) (1994
& Supp. II 1996), for petitions submitted before January 14, 1997. This
recent congressional enactment gives further support for interpreting our
regulations consistent with the congressional directive to provide this
respondent with an adjustment of status forum to have her immigration
application considered.
     The Attorney General’s intent is similarly derived from the regulations she enacted. The regulations at 8 C.F.R. part 245 specifically prescribe the adjustment of status process as the sole procedure for applying
to immigrate while in this country; and 

(a)(2) (1999)
specifies that deportation proceedings are the only process prescribed for
considering the respondent’s application. Consequently, when the majority strains to interpret the regulation to deprive the respondent of a forum
for her adjustment application, it does so in contravention of the congres-

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sional intent that applicants with a priority date before January 14, 1997,
should be allowed to immigrate through the adjustment of status process
and the Attorney General’s directive to prescribe such a process for aliens
already in proceedings.
     Denying the respondent’s motion does not promote finality in her
immigration proceedings. As discussed above, she is the beneficiary of an
approved visa petition. If deported, she will have to pursue her visa abroad,
contrary to congressional intent, and she will also require approval of
waivers of inadmissibility solely as a result of the majority’s refusal to provide the prescribed forum for her application. See section 212(a)(9) of the
Act, 

(a)(9) (Supp. II 1996). Promoting deportability is not
promoting finality in immigration determinations when the eventual result
prescribed by Congress for this respondent, who is presently in the United
states as an asylum applicant, is her admission into the United States as a
qualified employment-based preference immigrant. Remanding her case to
allow her application to be considered is the appropriate and necessary
action required to promote finality in her immigration proceedings.




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