SIPUS

                                                 Interim Decision #2172




                            MATTER OF SIPUS

                      In Deportation Proceedings

                                 A-14293683
                  Decided by Board November 10, 1972

(1) A mere showing that an alien has achieved the minimum statutory period of
   continuous physical presence for suspension of deportation does not, without
   more, justify granting a motion to reopen the deportation proceedings to
   permit an application for suspension.
(2) A motion to reopen the proceedings should disclose all prior and pending
  judicial litigation in the case.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant
                       visitor—remained longer than permitted.
ON BEHALF OF RESPONDENT:                       ON BEHALF OF SERVICE:
 Hiram W. Kwan, Esquire                          William S. Howell
 840 North Broadway                              Trial Attorney
 Los Angeles, California 90012
  (Brief filed)


  This is an appeal from an order of a special inquiry officer
denying the respondent's motion to reopen the deportation proceedings to allow her to file an application for suspension of
deportation under section 24.41(aX1) of the Immigration and Nationality Act. Oral argument, which is requested, is no longer available
as a matter of right on such an appeal, 8 CFR 3.1(e). Oral
argument will be denied and the appeal will be dismissed.
  Respondent is a 51-year-old married female alien, a native and
citizen of the Philippines, who was admitted to the TiTnited States
on July 26, 1965 as a nonimmigrant visitor and remained longer
than permitted. At a hearing before a special inquiry officer on
January 28, 1969, she admitted the factual allegations of the order
to show cause, conceded deportability and applied for voluntary
departure. The special inquiry officer found her deportable and
granted voluntary departure to March 1, 1969. She failed to
depart.
  On April 29, 1972, counsel filed a motion to reopen the proceed-

                                      229
Interim Decision #21'72
ings so that respondent might file an application for suspension of
deportation. Attached to the motion was a filled-out suspension
application. The motion to reopen, which is unsupported by any
affidavit or other evidence, is extremely brief. Its essence is
contained in two short paragraphs:
  [III] Respondent is statutorily eligible for suspension of deportation having
first entered the United States in March 1962. It is believed her case falls
squarely within 

.
  [IV] Counsel is prepared to present the necessary evidence at the time of
hearing.
  The suspension application recites that respondent first entered
the United States as a visitor on March 27, 1962 and was absent
thereafter but once, from December 1964 to the date of her last
entry on July 26, 1965. The Service's trial attorney opposed the
motion on the ground that this absence of almost eight months
broke the continuity of the seven years' physical presence required
by section 244(a)(1) of the Act. The special inquiry officer agreed
and denied the motion in his order dated May 23, 1972, now before
us on appeal.
  The issue raised on appeal is now moot. More than seven years
have now elapsed since respondent's last entry on July 26, 1965.
We therefore need not consider whether her preceding absence
broke the continuity of her physical presence following the 1962
entry. Since she can now establish the minimum required period of
physical presence, we would ordinarily reopen and remand if her
motion papers made out a prima facie case for reopening in other
regards. In our view, they do not.
  The motion to reopen, as we have noted, is singularly lacking in
factual detail. The suspension application reflects that respondent's husband, whom she married on December 24, 1942, is a selfemployed farmer in the Philippines. Respondent's five children,
ranging in age from 9 to 27, are natives and citizens of the
Philippines and presumably now reside there since their present
residence is not indicated. Neither the husband nor any of the
children is listed as a permanenL resident alien. Respondent also
lists six brothers and sisters, all natives and citizens of the
Philippines, now also presumably residing there. Since December
1966 respondent has been employed as a domestic and now earns
$125 a week. She states she cannot return to her native land
because of "financial hardship."
  As we pointed out in Matter of Lam, Interim Decision No. 2136
(B IA, 1972), continuous physical presence for the minimum statutory period is only one of the eligibility requirements for suspension of deportation. There are others, including a showing that the
alien's deportation would result in extreme hardship to the alien

                                     230
                                            Interim Decision #2172
or other specified family members who are citizens or legally
resident aliens. The pertinent regulations' require that a motion
to reopen shall state the new facts to be proved at the reopened
hearing and shall be supported by affidavits or other evidentiary
material.
  No hard and fast rule can be laid down as to what constitutes a
sufficient showing of a prima facie case for reopening. Much
depends on the nature of the case and the force of the evidence
already appearing in the record sought to be reopened. Where that
record is negative or contains adverse factors, a mere statement of
conclusory allegations with respect to the statutory' prerequisites
is seldom enough. Where reopening for suspension purposes is
sought, a mere showing that the alien has at last achieved the
minimum statutory period of continuous physical presence does
not ordinarily, without more, establish the other statutory prerequisites sufficiently to warrant reopening for a plenary hearing. On
the other hand, we have on occasion overlooked the technical
inadequacy of a motion to reopen where the new facts alleged,
when coupled with the facts already of record, satisfy us that it
would be worthwhile to develop the issues further at a plenary
hearing on reopening.
  On the record now before us, we cannot infer from the mere fact
that respondent can now establish seven years' continuous physical presence that she may also be able to prove the prerequisite
extreme hardship if given a chance at a reopened hearing. From
what already appears, it is clear that all her close relatives are in
the Philippines. Respondent's deportation there, far from causing
extreme hardship by separating her from her family, would serve
to reunite her with them. Insofar as concerns the "financial
hardship" which she asserts in her application, it has been consistently held that mere economic detriment, without more, is not
enough to make out the extreme hardship required by the statute,
Kasravi v. INS, 

 (CA. 9, 1968); Kwan Shick Myung v.
INS, 

 (C.A. 7, 1966).
  If there are other facts in counsel's possession which would tend
to make out a case of extreme hardship, he has not made them
known. The special inquiry officer cannot be expected to act on
conjecture. Counsel's unsupported and conclusory assertion in the
motion that he "is prepared to present the necessary evidence at
the time of hearing" does not tell us or the special inquiry officer
what evidence he is prepared to present and does not satisfy us
that the additional delay entailed in a reopening would likely be

 1 Reopening before the Service is governed by 8 CFR 242.22 and 103.5.
Reopening before the Board is governed by 8 CFR 3.2 and 3.8.

                                 231
Interim Decision #2172
worthwhile. We conclude that the special inquiry officer properly
denied the motion to reopen.
   One further aspect of this case should be mentioned. From the
record now before us, it appears that on May 11, 1972, after he had
filed the motion to reopen but before the special inquiry officer had
ruled on it, counsel for respondent filed a petition under section
106(a) of the Immigration and Nationality Act to review the
original deportation order, Sip-us v. INS, 9 Cir., No. 72-1838. On
June 16, 1972, the court entered an order dismissing the petition
for review and dissolving the statutory stay of deportation automatically available under section 106(aX3) of the Act. On June 21,
1972, counsel petitioned the court for rehearing. In his supporting
memorandum, counsel challenged the special inquiry officer's
order now before us on appeal and argued, on the "extreme
hardship" issue, that "[Respondent], at the age of 51 and with no
recent employment history in her native country, would experience extreme difficulty in finding work of any kind if she were
deported to the Philippines." On June 28, 1972 the court denied the
petition for rehearing.
  We mention the court proceedings for two reasons: First, in
court, counsel went into considerably more detail in defining the
extreme hardship claim than he did either before the special
inquiry officer or before this Board on appeal. Even with these
additional details, we are satisfied that a prima facie case for
reopening is not made out.
  Second, we note that neither in his notice of appeal dated June
3, 1972, nor in his brief on appeal to this Board bearing the same
date, did counsel mention the proceedings for judicial review then
pending. We have previously pointed out how important it is that
we be informed of court litigation brought by a party to a
proceeding before us which might affect our decision in that
proceeding. See Matter of Wong, 

; 8 CFR 3.8(a).
Prior litigation is important because, among other things, the
judgment entered therein may have res judicator effect. It is
equally necessary that we be informed of pending litigation, so
that we may either withhold or shape our decision in such a way
as not to impinge upon the jurisdiction of the court. If counsel
deliberately withheld this information from us, we could only
regard it as a lack of the good faith which we are entitled to expect
from attorneys who appear before us.
  We have no reason to believe that either of the Ninth Circuit's
judgments has conclusive effect on the issue now before us. The
petition for review dismissed by the court's order of June 16, 1972
dealt with the original deportation order and not the special
inquiry officer's order now before us. While counsel sought to draw

                                 232
                                                  Interim Decision #2172
the latter order into the court proceedings in his petition for
rehearing, it is clear that he did not succeed. In denying the
petition for rehearing, the court wrote no opinion. It is fairly
inferable, however, that the court's refusal to entertain respondent's challenge to the special inquiry officer's order was due to
respondent's failure to exhaust her administrative remedy of
appeal to this Board, as required by section 106(c) of the Act. We
see no reason to regard the court's order of June 28, 1972 as an
adjudication on the merits of the issue now before us. Accordingly,
we shall enter an order disposing of the appeal before us on its
merits.
  ORDER: The appeal is dismissed.
Warren R. Torrington, Member, Concurring:

  I concur in the result, but not in the unnecessary, inaccurate,
and misleading statements which appear in the following paragraph quoted from the Board opinion.
  No hard and fast rule can be laid down as to what constitutes a sufficient
showing of a prima facie case for reopening. Much depends on the nature of the
case and the force of the evidence already appearing in the record sought to
reopened. Where that record is negative or contains adverse factors, a mere
statement of conclusory allegations with respect to the statutory prerequisites is
seldom enough. Where reopening for suspension purposes is sought, a mere
showing that the alien has at last achieved the , minimum statutory Period of
continuous physical presence does not ordinarily, without more, establish the
other statutory prerequisites sufficiently to warrant reopening for a plenary
hearing. On the other hand, we have on occasion overlooked the technical
inadequacy of a motion to reopen where the new facts alleged, when coupled
with the facts already of record, satisfy us that it would be worthwhile to
develop the issues further at a plenary hearing on reopening.
  They might create the—wrong—impression that we have the
right to ignore the regulations which govern motions to reopen,
and which are cited in footnote 1 of the Board opinion. We have no
such right. The regulations have the force of law; and it is our
duty to enforce them_ Thus, "a mere statement of conclusory
allegations with respect to the statutory prerequisites" for the
relief sought is not "seldom enough;" it is never enough. The
quoted dictum is in sharp conflict with the letter and spirit of the
clear provisions of the pertinent regulations. Section 3.8 of Title 8
of the Code of Federal Regulations expressly provides in subsection (a) as follows: ".... Motions to reopen shall state the new facts
to be proved at the reopened hearing and shall be supported by
affidavits or other evidentiary material...." [Emphasis supplied.]
Almost identical provisions govern motions to reopen directed to
an officer of the Service and, in particular, in deportation proceedings to a special inquiry officer. 8 CFR 103.5 and 8 CFR 242.22.

                                      233
Interim Decision #2172
  Similarly, where "reopening for suspension purposes is sought, a
mere showing that the alien has at last achieved the minimum
statutory period of continuous physical presence does not" ever,
"without more, establish the other statutory prerequisites sufficiently to warrant reopening for a plenary hearing." The use of
the word "ordinarily" in the Board opinion appears to me to be
quite misleading.
   Finally, the following statement quoted from the Board opinion
is far too broad and general, and is therefore not a correct
exposition of what we can lawfully do: "On the other hand, we
have on occasion overlooked the technical inadequacy of a motion
to reopen where the new facts alleged, when coupled with the facts
already of record, satisfy us that it would be worthwhile to develop
the issues further at a plenary hearing on reopening."
  Obviously, a motion to reopen will always be granted where a
failure to reopen the proceedings might result in a gross miscarriage of justice. For example, in a matter involving an alien's
application for withholding of deportation to a country in which he
allegedly would be subject to persecution on account of race,
religion, or political opinion, neither a special inquiry officer nor
this Board would dream of denying a motion to reopen because of
some. "technical inadequacy" (as the Board opinion puts it). That,
however, does not mean that we have the general authority to
"overlook" clear violations of, or non -compliance with, the applicable laws and regulations of the United States.




                                234