GOOLCHARAN

Cite as 

 (BIA 2001)                                  Interim Decision #3442




              In re Viralene GOOLCHARAN, Respondent
               In re Reagan GOOLCHARAN, Respondent
                             File A73 536 444 - Newark
                                  File A73 536 443
                              Decided February 1, 2001
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   The regulatory deadline for filing a motion to reopen or motion to reconsider before the
Immigration Judge is determined by the date on which the Immigration Judge entered a final
administrative order, and the regulatory deadline is not affected by subsequent actions taken
by the Immigration and Naturalization Service in the course of executing the Immigration
Judge’s order.
FOR RESPONDENTS: Natasha Samus, Esquire, New York, New York

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Lisa M. Golub,
Assistant District Counsel
Before: Board Panel: HEILMAN, FILPPU, and MOSCATO, Board Members.

MOSCATO, Board Member:


   The respondents appeal from the decision of an Immigration Judge to deny
their motion to reopen deportation proceedings. The respondents argue that
their motion was timely because it was filed within 90 days of the date of the
final administrative order in their case, which they assert was the date that
their period of voluntary departure expired. The appeal will be dismissed.

                                 I. BACKGROUND
   On April 30, 1997, the Immigration Judge found the respondents, who are
mother and son, deportable as charged but granted them the privilege of
voluntary departure under section 244(e) of the Immigration and Nationality
Act, 

(e) (1994). The respondents were given until
December 31, 1997, to depart the United States voluntarily.
   On November 5, 1997, the lead respondent married a United States citizen,
who filed separate visa petitions on the respondents’ behalf on December 20,
1997. The petitions were approved on January 15, 1998, and March 13, 1998,
after the respondents’ period of voluntary departure had expired.

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   On an undisclosed date, the respondents requested an extension of
voluntary departure from the Immigration and Naturalization Service. On
March 2, 1998, the Service denied the request but allowed the respondents
until April 20, 1998, to depart the United States.
   Thereafter, on April 7, 1998, the respondents filed a motion to reopen with
the Immigration Judge for the purpose of applying for adjustment of status.
On April 30, 1998, the Immigration Judge ruled that the respondents’ motion
to reopen was untimely because it was not filed within 90 days of their final
administrative orders of deportation.
   On May 13, 1998, the respondents filed the instant appeal, arguing that the
Immigration Judge miscalculated the filing deadline for their motion to
reopen. The respondents maintain that the date of their final administrative
order was the date that their period of voluntary departure expired, after
having been reset by the Service. The respondents therefore contend that their
motion is timely because it was filed within 90 days of that date.1
   The Service has not responded to the appeal.

                                   II. DISCUSSION
   The specific issue in this case is whether the deadline for a motion to
reopen before an Immigration Judge is calculated from the grant or from the
expiration of the period of voluntary departure. Also at issue is precisely what
governmental action constitutes a “final administrative order” for purposes of
calculating motion deadlines. For the reasons set forth below, we find that the
date that an Immigration Judge’s order is entered fixes the deadline for filing
a motion to reopen, and any decision by the Service in the course of executing
that order does not affect the deadline.2
   The respondents maintain that their motion was timely because it was filed
within 90 days of the final administrative decision in their case, which they
identify as the date that their period of voluntary departure ended. The
respondents’ argument implies that an order of deportation is not “final” until



1
  Although the respondents claim that their period of voluntary departure was extended, the
only evidence they provide is a Notice of Action—Voluntary Departure (Form I-210) that
expressly denied their extension request. At best, the notice appears to briefly reinstate their
period of voluntary departure. However, because the situation is comparable for purposes
of this decision, we will not take issue with the respondents’ characterization of these
events.
2
  We note that, because the methodology for calculating the motion to reconsider deadline
is essentially identical (with variations not pertinent to the discussion here), our holding
applies to motions to reconsider before the Immigration Judge as well. See 

(b)(1) (2000).

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 (BIA 2001)                                Interim Decision #3442



the period of voluntary departure expires and the Immigration Judge’s
alternate order of deportation is activated.
   The motion regulations, however, clearly mark time according to the date
that an order of deportation is issued, not the date that it goes into effect.
Those regulations direct 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.” 

(b)(1) (2000) (emphasis added). For aliens in deportation proceedings,
orders of deportation are issued in the first instance by Immigration Judges.
See 

 (2000). Although the regulations do not define the
term “entry” vis-à-vis administrative orders, we find it reasonable to construe
“entry” to refer to the date that a designated adjudicator renders a binding
decision. Thus, in the respondents’ case, the Immigration Judge entered an
order of deportation on April 30, 1997.
   The Immigration Judge granted the respondents voluntary departure with
an alternate order of deportation. The regulations expressly provide that, for
aliens in proceedings commencing prior to April 1, 1997,
      an order of deportation, including an alternate order of deportation coupled with an
      order of voluntary departure, made by the immigration judge in proceedings under
      8 CFR part 2403 shall become final upon dismissal of an appeal by the Board of
      Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted
      for an appeal when no appeal is taken.

 (2000); see also section 101(a)(47) of the Act, 

(a)(47) (Supp. V 1999) (stating that an order of deportation becomes
final upon either a determination by the Board affirming the order below or
the expiration of the time to appeal that order, whichever is earlier);
Antiterrorism and Effective Death Penalty Act of 1996, 

(b), 

, 1277 (adding section 101(a)(47) of the Act under the
heading “Final Order of Deportation Defined”). The respondents, who were
granted voluntary departure with an alternate order of deportation, did not
appeal that order. Thus, the Immigration Judge’s order of April 30, 1997, fits
squarely into the regulatory and statutory definition of a final order of
deportation.
   There are a number of events in the course of immigration proceedings that
have been argued to be “final” for the purpose of calculating motion
deadlines, especially where voluntary departure is involved: the issuance of
the Immigration Judge’s order, the execution of the order, the expiration of the
time for appeal, the expiration of the time for voluntary departure, the grant
of an extension or reinstatement of voluntary departure, and the expiration of


3
  Subpart E of part 240 applies to aliens in deportation proceedings that commenced prior
to April 1, 1997.

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 (BIA 2001)                                Interim Decision #3442



that extension or reinstatement. However, only one of these events—the
issuance of the Immigration Judge’s order—matters for purposes of the
motion deadlines set forth at 

 Accordingly, both the
expiration of voluntary departure and the grant of additional time for
voluntary departure are inconsequential to the timely filing of a motion to
reopen before the Immigration Judge.

                               III. CONCLUSION
   Because the Immigration Judge entered a final administrative order of
deportation on April 30, 1997, we look to that date to calculate the
respondents’ 90-day deadline for filing a motion to reopen. The respondents’
motion was therefore due on or before July 29, 1997. The respondents did not
file their motion until April 7, 1998. Their motion was untimely and therefore
properly denied by the Immigration Judge. Accordingly, the respondents’
appeal will be dismissed.
    ORDER: The appeal is dismissed.




4
  Because the respondents’ motion was before the Immigration Judge, we do not address
whether a similar conclusion would be drawn in the context of motions before the Board.
See 

 (2000). We are constrained to note, however, that although the
regulations for motions before the Board and motions before Immigration Judges are not
identical, the language is markedly parallel and presumably operates in the same fashion.

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