[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR103.5]



[Page 49-51]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 103_POWERS AND DUTIES; AVAILABILITY OF RECORDS--Table of Contents

 

Sec. 103.5  Reopening or reconsideration.



    (a) Motions to reopen or reconsider in other than special 

agricultural worker and legalization cases--(1) When filed by affected 

party--(i) General. Except where the Board has jurisdiction and as 

otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the 

affected party files a motion, the official having jurisdiction may, for 

proper cause shown, reopen the proceeding or reconsider the prior 

decision. Motions to reopen or reconsider are not applicable to 

proceedings described in Sec. 274a.9 of this chapter. Any motion to 

reconsider an action by the Service filed by an applicant or petitioner 

must be filed within 30 days of the decision that the motion seeks to 

reconsider. Any motion to reopen a proceeding before the Service filed 

by an applicant or petitioner, must be filed within 30 days of the 

decision that the motion seeks to reopen, except that failure to file 

before this period expires, may be excused in the discretion of the 

Service where it is demonstrated that the delay was reasonable and was 

beyond the control of the applicant or petitioner.

    (ii) Jurisdiction. The official having jurisdiction is the official 

who made the latest decision in the proceeding unless the affected party 

moves to a new jurisdiction. In that instance, the new official having 

jurisdiction is the official over such a proceeding in the new 

geographical locations.

    (iii) Filing Requirements--A motion shall be submitted on Form I-

290B and may be accompanied by a brief. It must be:

    (A) In writing and signed by the affected party or the attorney or 

representative of record, if any;

    (B) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;

    (C) Accompanied by a statement about whether or not the validity of 

the unfavorable decision has been or is the subject of any judicial 

proceeding and, if so, the court, nature, date, and status or result of 

the proceeding;

    (D) Addressed to the official having jurisdiction; and

    (E) Submitted to the office maintaining the record upon which the 

unfavorable decision was made for forwarding to the official having 

jurisdiction.

    (iv) Effect of motion or subsequent application or petition. Unless 

the Service directs otherwise, the filing of a motion to reopen or 

reconsider or of a subsequent application or petition does not stay the 

execution of any decision



[[Page 50]]



in a case or extend a previously set departure date.

    (2) Requirements for motion to reopen. A motion to reopen must state 

the new facts to be provided in the reopened proceeding and be supported 

by affidavits or other documentary evidence. A motion to reopen an 

application or petition denied due to abandonment must be filed with 

evidence that the decision was in error because:

    (i) The requested evidence was not material to the issue of 

eligibility;

    (ii) The required initial evidence was submitted with the 

application or petition, or the request for initial evidence or 

additional information or appearance was complied with during the 

allotted period; or

    (iii) The request for additional information or appearance was sent 

to an address other than that on the application, petition, or notice of 

representation, or that the applicant or petitioner advised the Service, 

in writing, of a change of address or change of representation 

subsequent to filing and before the Service's request was sent, and the 

request did not go to the new address.

    (3) Requirements for motion to reconsider. A motion to reconsider 

must state the reasons for reconsideration and be supported by any 

pertinent precedent decisions to establish that the decision was based 

on an incorrect application of law or Service policy. A motion to 

reconsider a decision on an application or petition must, when filed, 

also establish that the decision was incorrect based on the evidence of 

record at the time of the initial decision.

    (4) Processing motions in proceedings before the Service. A motion 

that does not meet applicable requirements shall be dismissed. Where a 

motion to reopen is granted, the proceeding shall be reopened. The 

notice and any favorable decision may be combined.

    (5) Motion by Service officer--(i) Service motion with decision 

favorable to affected party. When a Service officer, on his or her own 

motion, reopens a Service proceeding or reconsiders a Service decision 

in order to make a new decision favorable to the affected party, the 

Service officer shall combine the motion and the favorable decision in 

one action.

    (ii) Service motion with decision that may be unfavorable to 

affected party. When a Service officer, on his or her own motion, 

reopens a Service proceeding or reconsiders a Service decision, and the 

new decision may be unfavorable to the affected party, the officer shall 

give the affected party 30 days after service of the motion to submit a 

brief. The officer may extend the time period for good cause shown. If 

the affected party does not wish to submit a brief, the affected party 

may waive the 30-day period.

    (6) Appeal to AAU from Service decision made as a result of a 

motion. A field office decision made as a result of a motion may be 

applied to the AAU only if the original decision was appealable to the 

AAU.

    (7) Other applicable provisions. The provisions of Sec. 

103.3(a)(2)(x) of this part also apply to decisions on motions. The 

provisions of Sec. 103.3(b) of this part also apply to requests for 

oral argument regarding motions considered by the AAU.

    (8) Treating an appeal as a motion. The official who denied an 

application or petition may treat the appeal from that decision as a 

motion for the purpose of granting the motion.

    (b) Motions to reopen or reconsider denials of special agricultural 

worker and legalization applications. Upon the filing of an appeal to 

the Associate Commissioner, Examinations (Administrative Appeals Unit), 

the Director of a Regional Processing Facility or the consular officer 

at an Overseas Processing Office may sua sponte reopen any proceeding 

under his or her jurisdiction opened under part 210 or 245a of this 

chapter and may reconsider any decision rendered in such proceeding. The 

new decision must be served on the appellant within 45 days of receipt 

of any brief and/or new evidence, or upon expiration of the time allowed 

for the submission of a brief. The Associate Commissioner, Examinations, 

or the Chief of the Administrative Appeals Unit may sua sponte reopen 

any proceeding conducted by that Unit under part 210 or 245a of this 

chapter and reconsider



[[Page 51]]



any decision rendered in such proceeding. Motions to reopen a proceeding 

or reconsider a decision under part 210 or 245a of this chapter shall 

not be considered.

    (c) Motions to reopen or reconsider decisions on replenishment 

agricultural worker petitions. (1) The director of a regional processing 

facility may sua sponte reopen any proceeding under part 210a of this 

title which is within his or her jurisdiction and may render a new 

decision. This decision may reverse a prior favorable decision when it 

is determined that there was fraud during the registration or petition 

processes and the petitioner was not entitled to the status granted. The 

petitioner must be given an opportunity to offer evidence in support of 

the petition and in opposition to the grounds for reopening the petition 

before a new decision is rendered.

    (2) The Associate Commissioner, Examinations or the Chief of the 

Administrative Appeals Unit may sua sponte reopen any proceeding 

conducted by that unit under part 210a of this title and reconsider any 

decision rendered in such proceeding.

    (3) Motions to reopen a proceeding or reconsider a decision under 

part 210a of this title shall not be considered.



[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32 

FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17, 

1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56 

FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 

29, 1996; 62 FR 10336, Mar. 6, 1997; 70 FR 50957, Aug. 29, 2005]