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§ 103.5of this section, certify a decision to theAssociate Commissioner, Examinations(Administrative Appeals Unit) (the ap-pellate authority designated in§103.1(f)(2)) of this part, when the caseinvolves an unusually complex or novelquestion of law or fact.[52 FR 661, Jan. 8, 1987, as amended at 53 FR43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990]§103.5 Reopening or reconsideration.(a) Motions to reopen or reconsider inother than special agricultural workerand legalization cases—(1) When filed byaffected party—(i) General. Exceptwhere the Board has jurisdiction and asotherwise provided in 8 CFR parts 3,210, 242 and 245a, when the affectedparty files a motion, the official havingjurisdiction may, for proper causeshown, reopen the proceeding or recon-sider the prior decision. Motions to re-open or reconsider are not applicable toproceedings described in §274a.9 of thischapter. Any motion to reconsider anaction by the Service filed by an appli-cant or petitioner must be filed within30 days of the decision that the motionseeks to reconsider. Any motion to re-open a proceeding before the Servicefiled by an applicant or petitioner,must be filed within 30 days of the deci-sion that the motion seeks to reopen,except that failure to file before thisperiod expires, may be excused in thediscretion of the Service where it isdemonstrated that the delay was rea-sonable and was beyond the control ofthe applicant or petitioner.(ii) Jurisdiction. The official havingjurisdiction is the official who madethe latest decision in the proceedingunless the affected party moves to anew jurisdiction. In that instance, thenew official having jurisdiction is theofficial over such a proceeding in thenew geographical locations.(iii) Filing Requirements— A motionshall be submitted on Form I–290A, andmay be accompanied by a brief. It mustbe—(A) In writing and signed by the af-fected party or the attorney or rep-resentative of record, if any;(B) Accompanied by a nonrefundablefee as set forth in §103.7;(C) Accompanied by a statementabout whether or not the validity ofthe unfavorable decision has been or isthe subject of any judicial proceedingand, if so, the court, nature, date, andstatus or result of the proceeding;(D) Addressed to the official havingjurisdiction; and(E) Submitted to the office maintain-ing the record upon which the unfavor-able decision was made for forwardingto the official having jurisdiction.(iv) Effect of motion or subsequent ap-plication or petition. Unless the Servicedirects otherwise, the filing of a mo-tion to reopen or reconsider or of a sub-sequent application or petition doesnot stay the execution of any decisionin a case or extend a previously set de-parture date.(2) Requirements for motion to reopen.A motion to reopen must state the newfacts to be provided in the reopenedproceeding and be supported by affida-vits or other documentary evidence. Amotion to reopen an application or pe-tition denied due to abandonment mustbe filed with evidence that the decisionwas in error because:(i) The requested evidence was notmaterial to the issue of eligibility;(ii) The required initial evidence wassubmitted with the application or peti-tion, or the request for initial evidenceor additional information or appear-ance was complied with during the al-lotted period; or(iii) The request for additional infor-mation or appearance was sent to anaddress other than that on the applica-tion, petition, or notice of representa-tion, or that the applicant or peti-tioner advised the Service, in writing,of a change of address or change of rep-resentation subsequent to filing andbefore the Service’s request was sent,and the request did not go to the newaddress.(3) Requirements for motion to recon-sider. A motion to reconsider muststate the reasons for reconsiderationand be supported by any pertinentprecedent decisions to establish thatthe decision was based on an incorrectapplication of law or Service policy. Amotion to reconsider a decision on anapplication or petition must, whenfiled, also establish that the decisionwas incorrect based on the evidence ofrecord at the time of the initial deci-sion.VerDate 112000 08:40 Jan 23, 2001 Jkt 194025 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Y:\SGML\194025T.XXXpfrm01PsN: 194025T
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93Immigration and Naturalization Service, Justice§ 103.5a(4) Processing motions in proceeding*****efore the Service. A motion that doesnot meet applicable requirements shallbe dismissed. Where a motion to reopenis granted, the proceeding shall be re-opened. The notice and any favorabledecision may be combined.(5) Motion by Service officer—(i) Servicemotion with decision favorable to affectedparty. When a Service officer, on his orher own motion, reopens a Service pro-ceeding or reconsiders a Service deci-sion in order to make a new decisionfavorable to the affected party, theService officer shall combine the mo-tion and the favorable decision in oneaction.(ii) Service motion with decision thatmay be unfavorable to affected party.When a Service officer, on his or herown motion, reopens a Service pro-ceeding or reconsiders a Service deci-sion, and the new decision may be un-favorable to the affected party, the of-ficer shall give the affected party 30days after service of the motion to sub-mit a brief. The officer may extend thetime period for good cause shown. Ifthe affected party does not wish to sub-mit a brief, the affected party maywaive the 30-day period.(6) Appeal to AAU from Service decisionmade as a result of a motion. A field of-fice decision made as a result of a mo-tion may be applied to the AAU only ifthe original decision was appealable tothe AAU.(7) Other applicable provisions. Theprovisions of §103.3(a)(2)(x) of this partalso apply to decisions on motions. Theprovisions of §103.3(b) of this part alsoapply to requests for oral argument re-garding motions considered by theAAU.(8) Treating an appeal as a motion. Theofficial who denied an application orpetition may treat the appeal fromthat decision as a motion for the pur-pose of granting the motion.(b) Motions to reopen or reconsider de-nials of special agricultural worker andlegalization applications. Upon the filingof an appeal to the Associate Commis-sioner, Examinations (AdministrativeAppeals Unit), the Director of a Re-gional Processing Facility or the con-sular officer at an Overseas ProcessingOffice may sua sponte reopen any pro-ceeding under his or her jurisdictionopened under part 210 or 245a of thischapter and may reconsider any deci-sion rendered in such proceeding. Thenew decision must be served on the ap-pellant within 45 days of receipt of anybrief and/or new evidence, or upon expi-ration of the time allowed for the sub-mission of a brief. The Associate Com-missioner, Examinations, or the Chiefof the Administrative Appeals Unitmay sua sponte reopen any proceedingconducted by that Unit under part 210or 245a of this chapter and reconsiderany decision rendered in such pro-ceeding. Motions to reopen a pro-ceeding or reconsider a decision underpart 210 or 245a of this chapter shallnot be considered.(c) Motions to reopen or reconsider deci-sions on replenishment agricultural work-er petitions. (1) The director of a re-gional processing facility may suasponte reopen any proceeding underpart 210a of this title which is withinhis or her jurisdiction and may rendera new decision. This decision may re-verse a prior favorable decision when itis determined that there was fraud dur-ing the registration or petition proc-esses and the petitioner was not enti-tled to the status granted. The peti-tioner must be given an opportunity tooffer evidence in support of the peti-tion and in opposition to the groundsfor reopening the petition before a newdecision is rendered.(2) The Associate Commissioner, Ex-aminations or the Chief of the Admin-istrative Appeals Unit may sua spontereopen any proceeding conducted bythat unit under part 210a of this titleand reconsider any decision rendered insuch proceeding.(3) Motions to reopen a proceeding orreconsider a decision under part 210a ofthis title shall not be considered.[27 FR 7562, Aug. 1, 1962, as amended at 30 FR12772, Oct. 7, 1965; 32 FR 271, Jan. 11, 1967; 52FR 16193, May 1, 1987; 54 FR 29881, July 17,1989; 55 FR 20770, 20775, May 21, 1990; 55 FR25931, 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]§103.5a Service of notification, deci-sions, and other papers by the Serv-ice.This section states authorized meansof service by the Service on parties