MLADINEO

                                                   Interim Decision #2264




                         MATTER OF MLADINEO

                       In Deportation Proceedings

                                A-19956160

                    Decided by Board March 1, 1974
Where, as in the instant case, the Board of Immigration Appeals digmig9.44d
 respondent's appeal from the decision of the immigration judge solely for lack
 of jurisdiction, without adjudication on the merits, the attempted appeal was
 nugatory and the decision of the immigration judge remained undisturbed. If
 thereafter a motion is made to reopen or reeuw, ider, there ie no reason why
 the immigration judge should not adjudicate it, as he does in other cases
 where there was no appeal from his prior order.
ON BEHALF OF RESPONDENT: Frederick A. Nervo, Esquire
                       995 Market Street, #1017
                       San Francisco, California 94103



CHARGE:

  Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)1—After admission as a
                       nonimmigrant under section 101(a)(15) of Act, remained
                       longer than permitted.


  On February 6, 1973, we dismissed for lack of jurisdiction as
untimely respondent's appeal from an order of an immigration
judge finding her to be deportable and granting her the privilege
of voluntary departure. She retained new counsel, who on August
14, 1973 wrote a letter to the District Director requesting that the
hearing be reopened to permit respondent to apply for withholding
of deportation to Chile under section 243(h) of the Immigration
and Nationality Act. Appended to the letter is an unsigned,
unsworn declaration by respondent to the effect that she had been
prejudiced economically in Chile because of her refusal to become
a Socialist or a Communist. Contained in the record is a notice of
appeal on Form I-290A dated August 15, 1973, purporting to
appeal from a decision dated August 2, 1973. The record contains
no decision of that date which is within our appellate jurisdiction.
In a memorandum in the file dated October 2, 1973, the Service's

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interim Decision #2264
trial attorney expressed the view that the purported appeal, even
if treated as a motion to reopen, will have to be adjudicated by the
Board. The record has been submitted to the Board by the Service,
presumably on the notion that our order dated February 6, 1973
brings this case within the purview of 8 CFR 32, which provides,
in pertinent part that, "Reopening or reconsideration of any case
in which a decision has been made by the Board ... shall be only
upon written motion to the Board."
   The quoted provision contemplates the situation where a decision on the merits has been made by us. Obviously, if a motion is
then made to reopen or reconsider our decision, the motion should
be considered and adjudicated by us. The same principles do not
apply where the Board's decision was not on the merits of the
case. Where, as here, dismissal by the Board was solely for lack of
jurisdiction, so that we made no adjudication on the merits, the
attempted appeal is nugatory and the decision of the immigration
judge remains undisturbed. If thereafter a motion is       made to
reopen or reconsider that decision, there appears to be no reason
why the immigration judge should not adjudicate it, as he does in
other cases where there was no appeal from his prior order.
   Rather than remand the record to the immigration judge for
adjudication, we shall take this case on certification under 8 CFR
3.1(c) and determine the motion ourselves. We do this because so
much time has already elapsed since the motion was filed and
because the request for reopening is so patently without merit.
Oral argument, which is requested, will be denied for the same
reasons.
  The motion to reopen is unsworn and unsupported by affidavit
or other evidence. The respondent's conclusory declaration that
she had suffered economic and employment privation in Chile
because of her refusal to become a Socialist or a Communist does
not make out a prima facie showing that her fear of persecution in
Chile is well-founded, especially since the prevailing regime there
is now anti-Socialist and anti-Communist. Treating the papers
before us as a motion to reopen, we conclude that the motion
should be denied.
  ORDER: The motion is denied.




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