Matter of Teklay (Board decision, May 22, 1987)

Plain-English summary

The Board reconsidered an earlier order that had continued a deportation appeal while the respondent pursued legalization under the Immigration Reform and Control Act of 1986. It clarified that the respondent and similarly situated applicants were required to meet a 30-day filing period only when that period was specifically required by the Service's final legalization regulations. Because the regulations did not impose that 30-day period on applicants apprehended or placed in proceedings before November 6, 1986, the regulatory filing period controlled. The Board reinstated its earlier order as clarified.

Decision snapshot

• Cited authorities: 8 C.F.R. §§ 245a and 245a.2
• Outcome: The Board's earlier order was reinstated with the legalization filing-deadline clarification.
• Key point: A 30-day legalization filing deadline applied only where the governing regulations specifically required it.

Full text (BIA official public release)

Interim Decision *3027

MATTER OF TEKLAY

In Deportation Proceedings

A-15175020

Decided by Board May 22, 1987

Orders of the Board of Immigration Appeals which provided that applications for legalization would have to be "filed within 30 days of the date designated by the Attorney General for the initial acceptance of applications" are clarified to provide that the 30-day filing period is only required as specifically mandated by the Immi- gration and Naturalization Service's final rules. CHARGE: Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(aX2)]—Nonimmigrant—re- xnained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
James J. Orlow, Esquire
Richard J. Sharkey
Orlow, Fuller, Rubin & Steel
District Counsel
936 Public Ledger Building
6th and Chestnut Street
Philadelphia, Pennsylvania 19106

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

On March 27, 1957, pursuant to a stipulation of the parties, the proceedings on appeal in this case were ordered continued. indefi- nitely without further action by the Board of Immigration Appeals pending the respondent's opportunity to apply and be considered for legalisation under the provisions of section 201 of the Immigra- tion Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat 3359, 3394. The March 27, 1987, order will be further considered and clarified on our own motion. The March 27, 1987, order preceded the issuance by the Immigra- tion and Naturalization Service of the final rules governing appli- cations for legalization. The order provided that any application would have to be "submitted pursuant to the regulations to be pub- lished regarding applications for legalization." It was also stated that the application would have to be "filed within 30 days of the

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Interim Decision #3027

date designated by the Attorney General for the initial acceptance of applications." This latter provision was intended to be caution- ary le., to guard against the possibility that a 30-day filing require- ment would be imposed and the alien not become aware of this sig- nificant time restriction. The Service has now promulgated the final rules regarding appli- cations for legalization. See 52 Fed.. Reg. 16, 205-216 (1987) (to be codified at 8 C.F.R. § 245a). The regulations do not require aliens, such as the respondent, who were either apprehended by the Serv- ice before November 6, 1986, or were the subject of Orders to Show Cause issued before November 6, 1986, to file applications for legal- ization within 30 days of May 5, 19E7, the date designated for the initial acceptance of such applications. Accordingly, our March 27, 1987, order in this case, and all other Board orders in which this 30-day filing period was referenced, are clarified to provide that the Service regulations govern applications for legalization. The appli- cation period set forth in the regulations is controlling and the filing of an application within 30 days is only required as specifical- ly mandated by the regulations. See 13 C.F.R. § 245a.2 (1988). ORDER: On reconsideration, the Board's March 27, 1987, order is reinstated as clarified herein.

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