[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.2]

[Page 18-21]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
                 Subpart A--Board of Immigration Appeals
 
Sec. 3.2  Reopening or reconsideration before the Board of Immigration Appeals.

    (a) General. The Board may at any time reopen or reconsider on its 
own motion any case in which it has rendered a decision. A request to 
reopen or reconsider any case in which a decision has been made by the 
Board, which request is made by the Service, or by the party affected by 
the decision, must be in the form of a written motion to the Board. The 
decision to grant or deny a motion to reopen or reconsider is within the 
discretion of the Board, subject to the restrictions of this section. 
The Board has discretion to deny a motion to reopen even if the party 
moving has made out a prima facie case for relief.
    (b) Motion to reconsider. (1) A motion to reconsider shall state the 
reasons for the motion by specifying the errors of fact or law in the 
prior Board decision and shall be supported by pertinent authority. A 
motion to reconsider a decision rendered by an Immigration Judge or 
Service officer that is pending when an appeal is filed with the Board, 
or that is filed subsequent to the filing with the Board of an appeal 
from the decision sought to be reconsidered, may be deemed a motion to 
remand the decision for further proceedings before the Immigration Judge 
or the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with the appeal to the Board.
    (2) A motion to reconsider a decision must be filed with the Board 
within 30 days after the mailing of the Board decision or on or before 
July 31, 1996, whichever is later. A party may file only one motion to 
reconsider any given decision and may not seek reconsideration of a 
decision denying a previous motion to reconsider. In removal proceedings 
pursuant to section 240 of the Act, an alien may file only one motion to 
reconsider a decision that the alien is removable from the United 
States.
    (3) A motion to reconsider based solely on an argument that the case 
should not have been affirmed without opinion

[[Page 19]]

by a single Board Member, or by a three-Member panel, is barred.
    (c) Motion to reopen. (1) A motion to reopen proceedings shall state 
the new facts that will be proven at a hearing to be held if the motion 
is granted and shall be supported by affidavits or other evidentiary 
material. A motion to reopen proceedings for the purpose of submitting 
an application for relief must be accompanied by the appropriate 
application for relief and all supporting documentation. A motion to 
reopen proceedings shall not be granted unless it appears to the Board 
that evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing; nor 
shall any motion to reopen for the purpose of affording the alien an 
opportunity to apply for any form of discretionary relief be granted if 
it appears that the alien's right to apply for such relief was fully 
explained to him or her and an opportunity to apply therefore was 
afforded at the former hearing, unless the relief is sought on the basis 
of circumstances that have arisen subsequent to the hearing. Subject to 
the other requirements and restrictions of this section, and 
notwithstanding the provisions in Sec. 1.1(p) of this chapter, a motion 
to reopen proceedings for consideration or further consideration of an 
application for relief under section 212(c) of the Act (8 U.S.C. 
1182(c)) may be granted if the alien demonstrates that he or she was 
statutorily eligible for such relief prior to the entry of the 
administratively final order of deportation.
    (2) Except as provided in paragraph (c)(3) of this section, a party 
may file only one motion to reopen deportation or exclusion proceedings 
(whether before the Board or the Immigration Judge) and that motion must 
be filed 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. Except 
as provided in paragraph (c)(3) of this section, an alien may file only 
one motion to reopen removal proceedings (whether before the Board or 
the Immigration Judge) and that motion must be filed no later than 90 
days after the date on which the final administrative decision was 
rendered in the proceeding sought to be reopened.
    (3) In removal proceedings pursuant to section 240 of the Act, the 
time limitation set forth in paragraph (c)(2) of this section shall not 
apply to a motion to reopen filed pursuant to the provisions of 
Sec. 3.23(b)(4)(ii). The time and numerical limitations set forth in 
paragraph (c)(2) of this section shall not apply to a motion to reopen 
proceedings:
    (i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1) 
or Sec. 3.23(b)(4)(iii)(A)(2);
    (ii) To apply or reapply for asylum or withholding of deportation 
based on changed circumstances arising in the country of nationality or 
in the country to which deportation has been ordered, if such evidence 
is material and was not available and could not have been discovered or 
presented at the previous hearing;
    (iii) Agreed upon by all parties and jointly filed. Notwithstanding 
such agreement, the parties may contest the issues in a reopened 
proceeding; or
    (iv) Filed by the Service in exclusion or deportation proceedings 
when the basis of the motion is fraud in the original proceeding or a 
crime that would support termination of asylum in accordance with 
Sec. 208.22(f) of this chapter.
    (4) A motion to reopen a decision rendered by an Immigration Judge 
or Service officer that is pending when an appeal is filed, or 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 or 
the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with, the appeal to the Board.
    (d) Departure, deportation, or removal. A motion to reopen or a 
motion to reconsider shall not be made by or on behalf of a person who 
is the subject of exclusion, deportation, or removal proceedings 
subsequent to his or her departure from the United States. Any departure 
from the United States, including the deportation or removal of a person 
who is the subject of exclusion, deportation, or removal proceedings,

[[Page 20]]

occurring after the filing of a motion to reopen or a motion to 
reconsider, shall constitute a withdrawal of such motion.
    (e) Judicial proceedings. Motions to reopen or reconsider shall 
state whether the validity of the exclusion, deportation, or removal 
order has been or is the subject of any judicial proceeding and, if so, 
the nature and date thereof, the court in which such proceeding took 
place or is pending, and its result or status. In any case in which an 
exclusion, deportation, or removal order is in effect, any motion to 
reopen or reconsider such order shall include a statement by or on 
behalf of the moving party declaring whether the subject of the order is 
also the subject of any pending criminal proceeding under the Act, and, 
if so, the current status of that proceeding. If a motion to reopen or 
reconsider seeks discretionary relief, the motion shall include a 
statement by or on behalf of the moving party declaring whether the 
alien for whose relief the motion is being filed is subject to any 
pending criminal prosecution and, if so, the nature and current status 
of that prosecution.
    (f) Stay of deportation. Except where a motion is filed pursuant to 
the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the 
filing of a motion to reopen or a motion to reconsider shall not stay 
the execution of any decision made in the case. Execution of such 
decision shall proceed unless a stay of execution is specifically 
granted by the Board, the Immigration Judge, or an authorized officer of 
the Service.
    (g) Filing procedures--(1) English language, entry of appearance, 
and proof of service requirements. A motion and any submission made in 
conjunction with a motion must be in English or accompanied by a 
certified English translation. If the moving party, other than the 
Service, is represented, Form EOIR-27, Notice of Entry of Appearance as 
Attorney or Representative Before the Board, must be filed with the 
motion. In all cases, the motion shall include proof of service on the 
opposing party of the motion and all attachments. If the moving party is 
not the Service, service of the motion shall be made upon the Office of 
the District Counsel for the district in which the case was completed 
before the Immigration Judge.
    (2) Distribution of motion papers. (i) A motion to reopen or motion 
to reconsider a decision of the Board pertaining to proceedings before 
an Immigration Judge shall be filed directly with the Board. Such motion 
must be accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. The record of 
proceeding pertaining to such a motion shall be forwarded to the Board 
upon the request or order of the Board.
    (ii) A motion to reopen or a motion to reconsider a decision of the 
Board pertaining to a matter initially adjudicated by an officer of the 
Service shall be filed with the officer of the Service having 
administrative control over the record of proceeding.
    (iii) If the motion is made by the Service in proceedings in which 
the Service has administrative control over the record of proceedings, 
the record of proceedings in the case and the motion shall be filed 
directly with the Board. If such motion is filed directly with an office 
of the Service, the entire record of proceeding shall be forwarded to 
the Board by the Service officer promptly upon receipt of the briefs of 
the parties, or upon expiration of the time allowed for the submission 
of such briefs.
    (3) Briefs and response. The moving party may file a brief if it is 
included with the motion. If the motion is filed directly with the Board 
pursuant to paragraph (g)(2)(i) of this section, the opposing party 
shall have 13 days from the date of service of the motion to file a 
brief in opposition to the motion directly with the Board. If the motion 
is filed with an office of the Service pursuant to paragraph (g)(2)(ii) 
of this section, the opposing party shall have 13 days from the date of 
filing of the motion to file a brief in opposition to the motion 
directly with the office of the Service. In all cases, briefs and any 
other filings made in conjunction with a motion shall include proof of 
service on the opposing party. The Board, in its discretion, may extend 
the time within which such brief is to be submitted and may authorize 
the filing of

[[Page 21]]

a brief directly with the Board. A motion shall be deemed unopposed 
unless a timely response is made. The Board may, in its discretion, 
consider a brief filed out of time.
    (h) Oral argument. A request for oral argument, if desired, shall be 
incorporated in the motion to reopen or reconsider. The Board, in its 
discretion, may grant or deny requests for oral argument.
    (i) Ruling on motion. Rulings upon motions to reopen or motions to 
reconsider shall be by written order. Any motion for reconsideration or 
reopening of a decision issued by a single Board member will be referred 
to the screening panel for disposition by a single Board member, unless 
the screening panel member determines, in the exercise of judgment, that 
the motion for reconsideration or reopening should be assigned to a 
three-member panel under the standards of Sec. 3.1(e)(6). If the order 
directs a reopening and further proceedings are necessary, the record 
shall be returned to the Immigration Court or the officer of the Service 
having administrative control over the place where the reopened 
proceedings are to be conducted. If the motion to reconsider is granted, 
the decision upon such reconsideration shall affirm, modify, or reverse 
the original decision made in the case.

[61 FR 18904, Apr. 29, 1996; 61 FR 32924, June 26, 1996, as amended at 
62 FR 10330, Mar. 6, 1997; 64 FR 56142, Oct. 18, 1999; 67 FR 54904, Aug. 
26, 2002]