SUN

Interim Decision #1661




                               -   3fArrza or Sulu
                         In Deportation Proceedings
                              • A-10767108
                     Decided by Board October 26 3 .1066

Reopening of proceedings to permit application for withholding of deportation
 under section 213(h) of the Immigration and Nationality Act, as amended
  by the ..iket of October 3, 1965, ie not warranted in the case of respondent
  who fears criminal prosecution for misappropriation of state funds, if
  deported to Formosa, and who, on substantially the same facts, applied for
  and was denied such relief under the statute prior to amendment.
DEVOISTAISIM ;   .Act of 1962 —Section 241(a) (2) (8 U.S.C. 325/3 —Nonimmigrant
                               ' (government employee)—remained longer.

  The 'record relates to a 37-year-old male alien, a native and citizen
of China, whose wife and two Children are also natives and citizens
of: that country and reside on Formosa. The respondent was admitted to the United States as a nonimmigrant government employee
of China on August 18, 1356. Approximately one year after such
admission he abandoned his lawful status. His deportability is established and uncontested.. He has been granted the privilege of
voluntary departure.
   These deportation proceedings were instituted on or about April
16, 1963. In the course thereof, the respondent applied for adjustment of his. status to that.of a permanent resident under section 245
of the Immigration and Nationality Act (8 U.S.C. 1255). An application for temporary withholding of his deportation under section
243(h) of the Immigration and Nationality Act (8 ;U.S.°. 1258)
was specifically waived by respondent who was then represented by
counsel. The relief of suspension of deportation under 'section
244(a) of the Immigration and Nationality Act (8 U.S.C. 1254)
was not applied for at that time, apparently because respondent had
not completed seven years' physical presence within the United
States .as required by the statute.
  On September 26, 1963, the special inquiry officer denied the respondent's application for adjustment of his status to that of a
                                        872
                                             Interim Decision #1661

permanent resident. On April 24, 1961, this Board affirmed that
decision of the special inquiry officer:. On June 1964, we denied
the respondent's motion for reopening of the proceedings to permit
him to Ale and prosecute an application for temporary withholding
of -his deportation to Formosa. The case is now again before us for
consideration by way of a motion to reopen the proceedings to permit the respondent to file and prbsecute applications for temporary
withholding of his deportation under section 243(h) of the Immigration and Nationality Act, and/or suspension of his deportation
under section 244(a) (1) of that Act.
  The Service oppose., the granting of this motion insofak as it is
directed to permitting the respondent- to file and prosecute an application for suspension of deportation. It does so on the ground that
favorable exercise of discretion. to grant suspension of deportation
is not merited by the respondent who, following admission as a nonimmigrant, has acquired minimum eligibility for such relief by
taking advantage of every administrative and other remedy avail-
'able to him. The record before us supports the Service position in
this respect. Accordingly, and on the basis of s prior precedent decision of this Board (Matter of L—, A-11196360, 5/27/66; Int. Dec.
*1596), the respondent's motion is denied insofar as it is concerned
with reopening the proceedings to permit him to file and prosecute
an application for suspension of deportation.
  The Service is also _opposed to favorable action on the respondent's
motion insofar as it relates to the question of temporary withholding
of his deportation to Formosa. Basically, its position in this respect
is predicated on the fact,that we denied. a similar motion on July
13, 1964, after carefully considering substantially the same facts on
which the present motion is predicated. It indicates awareness of
the fact that section 243(h) of the Immigration -and Nationality Act
has been amended since the entry of our last order, but claims that
the test for, this relief provided for under the new law is not so
different from that spelled out in the old law as to require reopening the proceedings now. It asserts that the evidence on this point
which lire previously considered and is still relied on by respondent
clearly does not meet the new statutory test and, therefore, does not
require reexamination. Again, we agree with the Service and are
of the opinion that favorable action on this portion of the respondent's motion is not warranted:
  8 CFlt 242.17(d) requires an application for relief under section.'
243(h) of the Immigration and Nationality Act to be made in the
course of the hearing before the special inquiry officer; and 8 CFR.

                                 873
Interim Decision #1661
242.22 provides that a motion to reopen to consider an application
for such relief will not be granted if the alien's right to apply was
fully explained to him by the special inquiry officer, and he was
afforded an opportunity to apply at the hearing. As indicated
above, this record shows that the special inquiry officer complied
strictly with the requirements of 8 CFR 242.22, and the respondent
specifically waited his right to apply. The record. also reflects that
the respondent was represented by competent and experienced counsel at the time he did so.
  We are aware that 8 CFR 242.22 does authorize reopening where
the request therefor is based on circumstances arising after the hearing; that section 243(h) as originally enacted made the test for relief thereunder "physical persecution"; and that the October 3, 1965
 amendment to the statute (P.L. 89-236, 89th Cong., H.R. 2580) altered the test to "persecution on account of race, religion or political opinion." We, however, do not think these factors call for
 favorable action on the motion.
    On June 9, 1961, when this Board denied a similar motion in this
 case, our decision was based on a thorough review of evidence designed to establish that respondent's deportation-to Formosa would
 subject him to "physical persecution." Specifically, the evidence
then considered was intended to show that respondent might be put
to death by Formosan authorities. It revealed that his fear of such
 a fate was predicated on the fact that -he had received and/or requested from them funds. to further the purpose for which they had
permitted him to come to the United. States, for their ultimate benefit as well as his, whereas he had, in fact, long since abandoned pursuit of that goal and was advancing his own interests which were
inconsistent therewith.
    The present motion is based on the same evidence we previously
found wanting as proof of possible "physical" persecution. Andcounsel's arguments in support of this motion are still directed to
the respondent's fear of "physical" puitishment for conduct clearly
criminal in nature rather than political. The contentions now voiced
do not tend to show that respondent's case falls withiii the amended
statute, to wit: that he fears "persecution on account of race, religion or political opinion." Therefore, we find that this motion
does not satisfy the requirements of 8 OFR 3.8 that it be based on
new facts to be proved at the reopened hearing. •
  In other words, counsel seeks to avail himself of the statute as
amended to delete the word "physical" from its provisions. However, he argues solely that the respondent will be subject to "physi-
                                874
                                          Interim Decision 411381
cal" persecution, an argument which has previously been considered
and rejected by this Board. Accordingly, no useful purpose would
be served to now reopen proceedings for consideration under the
amended statute. The motion, therefore, will not be granted.
  ORDER: It is ordered that the motion be and the same is hereby
denied.




                              875