Cite as 25 I&N Dec. 231 (BIA 2010)
Interim Decision #3679
1 After filing a Notice of Appeal on January 2, 2008, the respondent also submitted a motion
to remand on January 14, 2008. The Department of Homeland Security has opposed the
respondent’s motion. Inasmuch as the respondent’s motion is in the nature of an appeal brief
and offers substantially the same arguments, we have treated it as a brief. Under the
regulations, a motion filed during the pendency of an appeal may be deemed a motion
to remand, which generally does not count against the time and numeric limitations on the
filing of motions to reopen. See 8 C.F.R. § 1003.2(c)(4) (2010); see also Matter of Oparah,
23 I&N Dec. 1, 2 (BIA 2000) (stating that in the absence of a final administrative decision,
a motion to remand submitted during an appeal is not subject to the regulatory time and
number limits that apply to a motion to reopen, because the clock for filing a motion
to reopen does not start until the entry of a final administrative decision).
Matter of Serapio Felimon ALANIA-Martin, Respondent
File A099 799 967 - Boise, Idaho
Decided April 30, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized
employment restrictions of sections 245(c) and the exception for such employment in section
245(k) that apply to applications for adjustment of status under section 245(a).
FOR RESPONDENT: Nicole R. Derden, Esquire, Nampa, Idaho
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lillian L. Alves, Assistant
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated December 3, 2007, an Immigration Judge found the
respondent removable on his own admissions and denied his application for
adjustment of status under section 245(i) of the Immigration and Nationality
Act, 8 U.S.C.