Interim Decision #2309
MATTER OF RESTUBOG
• In Deportation Proceedings
A-17£22299
Decided by 4ogrd December 21, 1978
Under the concepts of 'judicata, a motion to reopen for possible termination of
deportation proceedings must 'be denied where the motion was filed subsequent to a
Court of Appeals review sustaining a finding of deportability and ordering a remand of
the case for the sole purpose. of permitting respondent to designate the country to which
she Is to be deported, and the evidence underlying the motion accrued prior to the court
order. J ;
CHARGE:
Order: Act of 1962—Section 241(a)(8) [8 U.S.C. 1261(e)(2)}—Nonimmigrant troncit
• ' remained longer than permitted.
- '
ON BEHALF OF RESPONDENT: Dan P. Danilov,•Esquire
, • 3828 Seattle First National Bank
Spittle, Washington 08164 ,
(
This case is before us on remand frem the United States Court of
Appeals for the Ninth Circuit for entry of , an appropriate order, in
pursuance 'of the procedure we suggested in Matter of Abellana and
Donovan, 14 I. & N. Dec.' 262.(BIA 1973).
On Augnst p; •19'73, we entered an order upholding ;the immigration
judge's denial of respondent's aliplicatioh for adjust/lent of status under
section 245 of the Immigration and Nationality Act, but granting
respondent the privilege of voluntary departure. O•judicial review, our
order was affirmed, but the record was remanded "for the sole purpose
of permitting [respondent] to designate the Country to which she is to be'
deported," Restubog v. INS, 9 Cir. No. 72-2663, October 18, 1973.
Following remand but before we received the record, counsel for respondent filed a motion to reopen in order that respondent might seek
termination of the proceedings under section 241(f) and adjustment of
status under section 245, coupled with a waiver of inadmissibility under
section 212(a)(19), pursuant to section 212(i) of the Act. The motion is
supported by counsel's affidavit; by a birth certificate showing the birth
of a child to respondent on December 9, 1970 at Seattle, Washington; by
evidence showing that an immediate relative visa petition in respond-
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Interim Decision #2309
ent's behalf was approved by the district director on March 23, 1973; and
by an application for a section 212(i) waiver, based on respondent's
relationship to her child and to her mother, both United States citizens.
By the terms of the Court of Appeals order, which is binding on us,
remand must be for the sole purpose of permitting the respondent to
designate the country to which she is to be deported. Had the new
evidence underlying the motion accrued after the Court of Appeals
order, we might be justified in expanding the scope of our remand order,
Matter of Campos,
13 I. & N. Dec. 148
(BIA 1969). However, all the
events now relied on took place before the Court of Appeals order: the
child was born on December 9, 1970 and the visa petition was approved
on March 23, 1973. Under familiar concepts of res judicata, the Court of
Appeals judgment binds us not only as to the issues actually raised and
adjudicated by the court but also as to the issues which could have been
raised. The only issue open for consideration on remand, then, is the
designation of the country to which respondent is to be deported.
We note, in passing, that respondent has been found deportable solely
on the ground that after entry as a non-immigrant she remained longer
than permitted. Section 241(f) of the Act, therefore, would not benefit
her in any event. Cabaco Flares v. INS,
477 F.2d. 108
(C.A. 9, 1973).
-
ORDER: The hearing is reopened and the record is remanded to the
immigration judge for the sole purpose of permitting the respondent to
designate the country to which she is to be deported.
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