[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: 8CFR3.44]

[Page 41-43]
 
                     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 C--Immigration Court--Rules of Procedure
 
Sec. 3.44  Motion to reopen to apply for section 212(c) relief for certain aliens in deportation proceedings before April 24, 1996.

    (a) Standard for adjudication. Except as provided in this section, a 
motion to

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reopen proceedings to apply for relief under section 212(c) of the Act 
will be adjudicated under applicable statutes and regulations governing 
motions to reopen.
    (b) Aliens eligible to reopen proceedings to apply for section 
212(c) relief. A motion to reopen proceedings to seek section 212(c) 
relief under this section must establish that the alien:
    (1) Had deportation proceedings before the Immigration Court 
commenced before April 24, 1996;
    (2) Is subject to a final order of deportation,
    (3) Would presently be eligible to apply for section 212(c) as in 
effect on or before April 23, 1996; and
    (4) Either--
    (i) Applied for and was denied section 212(c) relief by the Board on 
the basis of the 1997 decision of the Attorney General in Matter of 
Soriano (or its rationale), and not any other basis;
    (ii) Applied for and was denied section 212(c) relief by the 
Immigration Court, did not appeal the denial to the Board (or withdrew 
an appeal), and would have been eligible to apply for section 212(c) 
relief at the time the deportation became final but for the 1997 
decision of the Attorney General in Matter of Soriano (or its 
rationale); or
    (iii) Did not apply for section 212(c) relief but would have been 
eligible to apply for such relief at the time the deportation order 
became final but for the 1997 decision of the Attorney General in Matter 
of Soriano (or its rationale).
    (c) Scope of reopened proceedings. Proceedings shall be reopened 
under this section solely for the purpose of adjudicating the 
application for section 212(c) relief, but if the Immigration Court or 
the Board reopens on other applicable grounds, all issues encompassed 
within the reopening proceedings may be considered together, as 
appropriate.
    (d) Procedure for filing a motion to reopen to apply for section 
212(c) relief. An eligible alien must file either a copy of the original 
Form I-191 application, and supporting documents, or file a copy of a 
newly completed Form I-191, plus all supporting documents. An alien who 
has a pending motion to reopen or reconsider before the Immigration 
Court or the Board, other than a motion for section 212(c) relief, must 
file a new motion to reopen to apply for section 212(c) relief pursuant 
to this section. The new motion to reopen shall specify any other 
motions currently pending before the Immigration Court or the Board that 
should be consolidated. The Service shall have 45 days from the date of 
service of the motion to reopen to respond. In the event the Service 
does not respond to the motion to reopen, the Service retains the right 
in the reopened proceedings to contest any and all issues raised. Any 
motion for section 212(c) relief pending before the Board or the 
Immigration Courts on January 22, 2001 that would be barred by the time 
or number limitations on motions shall be deemed to be a motion to 
reopen filed pursuant to this section.
    (e) Fee and number restriction for motion to reopen waived. No 
filing fee is required for a motion to reopen to apply for section 
212(c) relief under this section. An eligible alien may file one motion 
to reopen to apply for section 212(c) relief under this section, even if 
a motion to reopen was filed previously in his or her case.
    (f) Deadline to file a motion to reopen to apply for section 212(c) 
relief under this section. An alien with a final administrative order of 
deportation must file a motion to reopen by July 23, 2001.
    (g) Jurisdiction over motion to reopen to apply for section 212(c) 
relief and remand of appeals.
    (1) Notwithstanding any other provisions, any motion to reopen filed 
pursuant to this section to apply for section 212(c) relief shall be 
filed with the Immigration Court or the Board, whichever last held 
jurisdiction over the case.
    (2) If the Immigration Court has jurisdiction, and grants only the 
motion to reopen to apply for section 212(c) relief pursuant to this 
section, it shall adjudicate only the section 212(c) application.
    (3) If the Board has jurisdiction and grants only the motion to 
reopen to apply for section 212(c) relief pursuant to this section, it 
shall remand the case to the Immigration Court solely for adjudication 
of the section 212(c) application (Form I-191), unless the

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Board chooses to exercise its discretionary authority to adjudicate the 
matter on the merits without a remand.
    (h) Applicability of other exceptions to motions to reopen. Nothing 
in this section shall be interpreted to preclude or restrict the 
applicability of any other exception to the motion to reopen provisions 
of this part as defined in 8 CFR 3.2(c)(3) and 3.23(b).
    (i) Limitations on eligibility for reopening under this section. 
This section does not apply to:
    (1) Aliens who have departed the United States;
    (2) Aliens with a final order of deportation who have illegally 
returned to the United States; or
    (3) Aliens who have not been admitted or paroled.

[66 FR 6445, Jan. 22, 2001; 66 FR 8149, Jan. 29, 2001]