Matter of Monges-Garcia

**Motion to reopen in absentia deportation orders, AOS, 5-year limitation on discretionary relief for failure to appear**

The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purposeof adjusting status, whether filed before or after the 1996 promulgation of the regulations. The respondent is subject to the current version of the regulation at 8 C.F.R. § 1003.23(b)(1), which required her to file her motion to reopen before the IJ by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994.  Because her motion was not submitted until April 7, 2003, it was untimely filed. Further,  there is no conflict between former section 242B(e)(1) of the Act and 8 C.F.R. § 1003.23(b)(1).  Specifically, the 5-year limitation on discretionary relief for failure to appear at deportation proceedings under former INA section 242B(e)(1) is not in conflict with, and does not provide an exception to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1). The 5-year bar is applicable only to respondents who failed to appear for a hearing, including those who left the United States and subsequently returned. The general time limitation on filing a motion in 8 C.F.R. § 1003.23(b)(1) is an independent provision that applies to any respondent who has been ordered excluded, deported, or removed. These provisions have separate restrictions for different purposes and are not at odds with one another.