Interim Decision #2136
MATTER OF LAM
In Deportation Proceedings
A-15639821
Decided by Board March 23, 1972
Apart from an alien's failure to establish prima facie the extreme hardship
required to qualify for suspension of deportation, where, as in the instant
case, he managed to stave off deportation and accrue the minimum statutory
period of physical presence only by resort to dilatory procedures (including a
petition for review denied for 'eel( of prosecution), in the absence of compelling
circumstances to counterbalance such an adverse factor denial of his motion
to reopen to apply for suspension of deportation is warranted purely as a
matter of discretion.
CHARGES:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Entered without
inspection.
Lodged: Act of 1952—Section 241(ax1) 18 U.S.C. 1251(a)(1)I—Excludably at time
of entry—nonimmigrant, not in possession of valid
nonimmigrant visa or border crossing identification
card and not exempted from the possession thereof, as
described in section 212(a)(26) [8 U.S.C. 1182(a)(26)].
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Samuel D. Myers, Esquire Olga M. Springer
134 North La Salle Street, Suite 1616 Trial Attorney
Chicago, Illinois 60602 (Brief filed)
In a decision dated April 10, 1968, a special inquiry officer found
the respondent deportable on the charge in the order to show
cause and on the lodged charge, granted him voluntary departure
and ordered deportation if he should fail to depart. The Board
dismissed his appeal on June 5, 1968. Respondent's motion to
reopen to apply for adjustment of status under section 245 of the
Immigration and Nationality Act was denied by the Board on July
23, 1968. A petition for review was filed in the United States Court
of Appeals for the Seventh Circuit and was dismissed on January
30, 1969 for want of prosecution. On August 26, 1970, the Board
denied the respondent's motion to reopen the deportation proceed-
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Interim Decision #2136
ing so that an application for suspension might be filed under
section 244(aX1) of the Act.
Another petition for review was filed in the United States Court
of Appeals for the Seventh Circuit, largely challenging the merits
of the April 10, 1968 determination of deportability. In dismissing
the petition for review on October 7, 1971, the court held that
review of the merits of the April 10, 1968 order is barred by the
lapse of time; and that the Board's action on August 26, 1970
denying the motion to reopen was discretionary. The court found
no abuse of discretion. This matter is now before us again on
motion to reopen to permit the respondent to apply for suspension
of deportation. The present motion will be denied.
To be eligible for suspension of deportation under section
244(a)(1) of the Act, the respondent must establish; (1) physical
presence in the United States for a continuous period of not less
than seven years preceding the date of application; (2) good moral
character during all such period; and (3) extreme hardship to the
alien or other specified family members which would result from
the alien's deportation. The 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.
In support of the claim of hardship made in this motion,
respondent submitted an affidavit which states a number of
conclusions, none of which is supported by evidence or states the
facts upon which it is based. The affidavit states that he would be
unable to support himself in Hong Kong; that he would be unable
to obtain a job; that he might starve to death; that he fears the
communists in Hong Kong; and that he would become physically
and emotionally ill if he had to leave the United States. All
statements are conclusions, purely conjectural and not supported
by any facts or evidence. In substance, what respondent alleges is
tantamount to economic hardship if he is returned to Hong Kong.
Economic detriment without more, however, is not enough to
establish the hardship contemplated to qualify for the relief of
suspension of deportation, :ittsravi, v. INS, 400 F.2d 675 (9 Cir.,
1968); .-Cwang Shick Myung v. INS,
368 F.2d 330 (7 Cir., 1966).
Respondent contends that a denial of this motion would be a
denial of due process, a prejudgment without a complete hearing
depriving the respondent of a chance to be heard, and would make
the respondent suffer from the possible omissions of prior counsel.
These contentions ignore the sequence of events which have
transpired since April 10, 1968, when he was found deportable and
granted the privilege of voluntary departure. The evidence in the
record establishes that the respondent has not been denied due
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Interim Decision #2136
process, that he has had ample opportunity to present his case
before administrative and judicial tribunals, and that he has in
fact taken advantage of these opportunities. The motion and
affidavit presented do not state new facts which would establish,
prima facie, the extreme hardship required to make respondent
eligible for suspension of deportation under section 244(a)(1) of the
Act. Respondent has not met the clear requirements for reopening
set forth in the regulations. Reopening is not to be had for the
mere asking. Due process does not require reopening for a plenary
hearing when a prima facie case of eligibility for the relief sought
has not been established.
Moreover, quite apart from respondent's failure to make out a
prima facie case, there is another compelling reason to deny the
motion as a matter of discretion. Respondent entered without
inspection on February 1, 1963. He has managed to eke out the
minimum period of seven years' physical presence only by resorting to dilatory procedures. One flagrant example among many will
suffice: On September 4, 1968, long before the seven-year period
had accrued, he filed a petition for review under section 106(a) of
the Act, challenging the deportation order then outstanding,
Cheuk Jor Lam. v. INS, C.A. '7, No. 17142. Pursuant to section 106
(a)(3) of the Act, deportation was automatically stayed. He failed to
prosecute the action, and on January 30, 1969 the court dismissed
it for lack of prosecution.
Where, as here, an alien manages to stave off deportation and
accrue the minimum statutory period of physical presence only by
resort to such obviously dilatory tactics, in the absence of other
compelling circumstances sufficient to counterbalance such an
adverse factor we are warranted in denying a motion to reopen
purely as a matter of discretion.
ORDER: It is ordered that the motion be and the same is
hereby denied.
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