§103.5. Reopening or reconsideration. — Inbound Citations

(15) The USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under § 103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new benefit request with a new fee. However, the priority or processing date of a withdrawn or abandoned benefit request may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior benefit request shall otherwise be material to the new benefit request.

(B) For purposes of this section and §§ 103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected party may be represented by an attorney or representative in accordance with part 292 of this chapter.

(i) If the alien requests such review, or refuses or fails to either request or decline such review, the asylum officer shall serve the alien with a Form I-863, Notice of Referral to Immigration Judge, for review of the credible fear determination in accordance with paragraph (g)(2) of this section. USCIS may, in its discretion, reconsider a negative credible fear finding that has been concurred upon by an immigration judge provided such reconsideration is requested by the alien or initiated by USCIS no more than 7 calendar days after the concurrence by the immigration judge, or prior to the alien's removal, whichever date comes first, and further provided that no previous request for reconsideration of that negative finding has already been made. The provisions of 8 CFR 103.5 shall not apply to credible fear determinations.

(d) The Secretary of Homeland Security may, at any time, revoke a waiver previously granted through the procedures described in 8 CFR 103.5.

(11) There is no administrative appeal from a denial of a request for a provisional unlawful presence waiver under this section. The alien may not file, pursuant to 8 CFR 103.5, a motion to reopen or reconsider a denial of a provisional unlawful presence waiver application under this section.

(3) There is no administrative appeal from a denial of a request for Deferred Action for Childhood Arrivals. The alien may not file, pursuant to 8 CFR 103.5 or otherwise, a motion to reopen or reconsider a denial of a request for Deferred Action for Childhood Arrivals.

(1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with § 103.5 of this chapter. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening.

An applicant who alleged entry and residence since prior to July 1, 1924, but in whose case a record was created as of the date of approval of the application because evidence of continuous residence prior to July 1, 1924, was not submitted, may have his case reopened and reconsidered pursuant to § 103.5 of this chapter. Upon the submission of satisfactory evidence, a record of admission as of the date of alleged entry may be created.

(c) After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5. The motion must be accompanied by the rejected application and the fee specified in 8 CFR 106.2.

(c) After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5. The motion must be accompanied by the rejected application and the fee specified in 8 CFR 106.2.

(e) After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion to reopen or reconsider in accordance with 8 CFR 103.5. The motion must be accompanied by the rejected application and the fee specified in 8 CFR 106.2.

(C) Public Law 101-649 (the Immigration Act of 1990), which became law on November 29, 1990, retroactively amended Public Law 101-238 (the Immigration Nursing Relief Act of 1989). An alien whose application for adjustment of status under the provisions of Public Law 101-238 was denied by the district director before November 29, 1990, because of unauthorized employment, failure to continuously maintain a lawful nonimmigrant status, or not being in lawful immigration status at the time of filing, may file a motion to reopen the adjustment application. The motion to reopen must be made in accordance with the provisions of 8 CFR 103.5. The district director will reopen the application for adjustment of status and enter a new decision based upon the provisions of Public Law 101-238, as amended by Public Law 101-649. Any other alien whose application for adjustment of status was denied may file a motion to reopen or reconsider in accordance with normal statutory and regulatory provisions.

(1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with § 103.5 of 8 CFR chapter I. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening.

An applicant who alleged entry and residence since prior to July 1, 1924, but in whose case a record was created as of the date of approval of the application because evidence of continuous residence prior to July 1, 1924, was not submitted, may have his case reopened and reconsidered pursuant to § 103.5 of 8 CFR chapter I. Upon the submission of satisfactory evidence, a record of admission as of the date of alleged entry may be created.

(1) Withdrawal of an alien's status under paragraph (a) of this section shall be in writing and served by personal service pursuant to § 103.5(a) of this chapter. If the ground for withdrawal is § 240.14(a)(3), the notice shall provide that the alien has thirty (30) days within which to provide evidence of good cause for failure to register. If the alien fails to respond within thirty (30) days, Temporary Protected Status shall be withdrawn without further notice.

(B) (1) Rejection without refund of filing fee. An appeal which is not filed within the time allowed must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.

(2) Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to reopen as described in § 103.5(a)(2) of this part or a motion to reconsider as described in § 103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made on the merits of the case.

(ii) If an untimely request for hearing meets the requirements of a motion to reopen as described in 8 CFR 103.5(a)(2) or a motion to reconsider as described in 8 CFR 103.5(a)(3), the request for hearing must be treated as a motion and a decision must be made on the merits of the case.

(B) (1) Rejection without refund of filing fee. An appeal which is not filed within the time allowed must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.

(2) Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to reopen as described in § 103.5(a)(2) of this part or a motion to reconsider as described in § 103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made on the merits of the case.

(ii) If an untimely request for hearing meets the requirements of a motion to reopen as described in 8 CFR 103.5(a)(2) or a motion to reconsider as described in 8 CFR 103.5(a)(3), the request for hearing must be treated as a motion and a decision must be made on the merits of the case.

(4) There is no appeal from a denial of parole under this section. USCIS will not consider a motion to reopen or reconsider a denial of parole under this section. On its own motion, USCIS may reopen or reconsider a decision to deny the Application for Entrepreneur Parole (Form I-941), in accordance with 8 CFR 103.5(a)(5).

(iii) The reviewing official shall decide whether or not favorable action is warranted. Within 45 days of receipt of the appeal, the reviewing official may treat the appeal as a motion to reopen or reconsider and take favorable action. However, that official is not precluded from reopening a proceeding or reconsidering a decision on his or her own motion under § 103.5(a)(5)(i) of this part in order to make a new decision favorable to the affected party after 45 days of receipt of the appeal.

(ii) If a request for hearing is filed by an attorney or representative who has not properly filed a notice of entry of appearance as attorney or representative entitling that person to file the request for hearing, the appeal will be considered as improperly filed. In such a case, any filing fee will not be refunded regardless of the action taken. The reviewing official will ask the attorney or representative to submit a proper notice of entry within 15 days of the request. If such notice is not submitted within the time allowed, the official may, on his or her own motion, under 8 CFR 103.5(a)(5)(i), make a new decision favorable to the affected party without notifying the attorney or representative. The request for hearing may be considered properly filed as of its original filing date if the attorney or representative submits a properly executed notice entitling that person to file the request for hearing.

(g) In accordance with the provisions of § 103.5(b) of this chapter, the director of a regional processing facility or a consular officer at an overseas processing office may sua sponte reopen any proceeding under this part under his or her jurisdiction and reverse any adverse decision in such proceeding when appeal is taken under § 103.3(a)(2) of this part from such adverse decision; the Associate Commissioner, Examinations, and the Chief of the Administrative Appeals Unit may sua sponte reopen any proceeding conducted by that unit under this part and reconsider any decision rendered in such proceeding. The decision must be served on the appealing party within forty-five (45) days of receipt of any briefs and/or new evidence, or upon expiration of the time allowed for the submission of any briefs. Motions to reopen a proceeding or reconsider a decision shall not be considered under this part.