Interim Decision #2592
MATTER OF CHMUNG
In Deportation Proceedings
A-15746715
Decided by Board Jurze 14, 1977
(1) Respondent submitted a request for asylum on October 2, 1974, which was patently
without substance, in that he sought to avoid deportation to China while his deportation
orders specified he should be deported to Hong ECong. He also submitted requests for
relief under section 243(h) of the Immigration and Nationality Act on December 1, 1975,
(withdrawn on January 6, 1976) and on January L6, 1976. However, these requests for
withholding of deportation under section 243(h) were not supported by evidence or
affidavits as required by 8 C.F.R. 103.5 and 8 C.F–R. 242.22. In the circumstances, both
the asylum request and the section 243(h) requester were frivolous and dilatory, and for
that reason the instant motion to reconsider will be denied.
(2) Repeated legal actions initiated on a claim whose substance has repeatedly been found
lacking can validly be termed dilatory. Dilatoriness is not determined by the number of
actions filed but by the nature of the claim and patent lack of merit.
CHARGE:
Order: Act of 1952---Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimmigrant crewman—
remained longer than permitted
ON BEHALF OF RESPONDENT: Emmanuel A. M-core, Esquire
168 Canal StreetNew York, New York 10012
BY: Milhollan, Chairman; Wilson, Maniatis, Appleraran, and Maguire, Board Members
The respondent, a native and citizen of China, has submitted a motion
to reconsider our decision of April 7, 197'7, dismissing his appeal from
the decision of the immigration judge denying the respondent's motion
to reopen proceedings. The respondent s ought reopening for the purpose of applying for a new grant of voluntary departure. In our previous
cledsion, we dismissed the appeal on the ground that the respondent,
found deportable in May, 1974 and granted a long-since-expired term of
voluntary departure, had prolonged his stay in the United States
through the use of dilatory tactics, and thus did not merit a reopening of
proceedings for the purpose of applying for a new grant of voluntary
departure. For the reasons that follow, the present motion to reconsider
be denied.
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The respondent, through counsel, requests that we reconsider our
conclusion that his stay in the United States has been prolonged unduly
through the use of dilatory tactics. He argues that this label should not
lightly be attached to his attempts to vindicate his rights under the law.
He therefore argues that we should not find that his various legal
actions should now disqualify him from a reopening of proceedings to
apply for a new grant of voluntary departure.'
We should be loath to quickly attach a label of frivolousness and
dilatoriness to a respondent's vigorous and persistent exercise of his
legal rights. Such a policy could only result in the imposition of a subtle
penalty for pursuing a claim to the full extent of the law. This is
especially so when the respondent's legal actions are based, as in this
case, on a claim to refugee status. Nonethele s s, when repeated legal
actions are initiated on a claim whose substance has repeatedly been
found nil, the respondent's motives in continued prosecution will of
necessity become suspect, and the label of dilatoriness will validly
attach.
The issue before us is whether the record supports the characterization of the respondent's legal actions as frivolous and dilatory. We must
therefore analyze the respondent's various legal maneuvers, and attempt, post hoc, to render an assessment of their merits. That these
actions were ultimately unsuccessful is not conclusive to our inquiry,
which is, after all, the respondent's motivations. However, repeated
lack of success in different forums in the prosecution of similar claims is
clearly relevant to the respondent's motives.
The respondent is a crewman who entered the United States on
January 28, 1973, and who overstayed the 29-day term allowed him as
shore leave. On May 17, 1974, he was found deportable under section
241(0(2) of the Immigration and Nationality- Act, and granted the
privilege of departing voluntarily in lieu of deportation before July 17,
1974, with an alternative order for deportation to Hong Kong and
Taiwan. A warrant of deportation was issued on September 16, 1974. On
October 2, 1974, the respondent filed an application for stay of deportation pending a final decision on his request for asylum. This claim was
based on the argument that the respondent's true domicile was the
People's Republic of China, although he had fled that country to Hong
Kong in 1953. The requests for asylum and stay of deportation were
denied by the District Director on October 7, 1974. However, the
respondent's deportation was stayed under the decision in Chim Ming
v. Marks, 505 F.2d 1170 (2 Cir. 1974), cert. denied
421 U.S. 911 (1975),
The respondent is apparently now eligible for fifth-preference benefits due to the
recent naturalization of his brother.
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which applied to potential refugees. The stay in Chim Ming v. Marks,
supra, expired on September 9, 1975.
On December 1, 1975, the respondent moved for reopening of his
deportation proceedings in order to submit a request for withholding of
deportation to Hong Kong under section 243(h) of the Act. On January
6, 1976, the respondent withdrew this motion to reopen, and requested
that his deportation to Hong Kong be effected immediately. However,
on January 16, 1976, a new motion for reopening was submitted, again
requesting an opportunity to apply for relief under section 243(h) of the
Act. This motion was treated as another request for asylum by the
District Director, and denied by him. However, the motion was also
forwarded to the immigration judge for consideration of the respondent's motion to reopen. A stay of deportation was granted during the
pendency of the proceedings. On December 1, 1976, the immigration
judge denied the respondent's motion to reopen. The respondent retained present counsel on January 31, 1977. A motion to reopen for the
purpose of permitting the respondent to apply for an additional grant of
voluntary departure was submitted on January 31, 1977. A stay of
deportation was apparently obtained when a Federal District Court
issued a temporary restraining order. On February 3, 1977, the immigration judge denied the respondent's motion to reopen, on the ground
that the respondent had engaged in dilatory legal actions. We dismissed
the respondent's appeal from that decision on April 7, 1977.
Summarizing this rather complex history of the respondent's legal
maneuvers, we find that the -respondent has submitted one request for
asylum, and, if the two motions of December 1, 1975, and January 16,
1976, are considered as one 2 one motion for reopening for the purpose of
,
presenting a claim under section 243(h) of the Act.
A request for asylum, if denied, may be renewed as a claim for relief
under section 243(h) in a subsequent deportation hearing. See 8 C.F.R.
108.2. Thus, the fact that the respondent has made a claim to asylum
followed by a motion to reopen would not alone compel a conclusion that
the respondent has been dilatory.
However, it is not the number of actions which compels us to find that
the respondent's actions have been dilatory. Rather, it is the nature of
these actions, and their patent lack of merit, which compels that conclusion. The original request for asylum, filed on October 2, 1974, was
patently without substance: tle respondent sought to avoid deportation
to the People's Republic of China while his order of deportation specified
that he should be deported to Hong Kong. This frivolous claim brought
the respondent within the terms of the stay of deportation granted by
2 The delay caused by the January 6, 1976, withdrawal only amounts to 10 days.
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Interim Decision #2592
the court in Chim Ming v. Marks, supra, engendering a delay of some 11
months.
Similarly, the respondent's motion to reopen proceedings for consideration of his claim to relief under section 243(h) of the Act, submitted
on December 1, 1975, withdrawn January 6, 1976, and resubmitted on
January 16, 1976, was patently frivolous. This motion, submitted by
experienced counsel, was entirely unsupported by evidence or affidavits
as required by 8 C.F. R. 103.5 and 242.22, and did not state the nature of
the persecution to which the respondent would allegedly be subject upon
his return to Hong Kong. This motion engendered a delay of another 11
months.
We do not question the motives or actions of present counsel in
submitting the present motion to reopen for the purpose of allowing the
respondent to apply for a new grant of voluntary departure. The present action, in view of the respondent's apparent eligibility for fifth-preference benefits under the Act, is entirely proper. However, the
actions of the respondent through his previous counsel appear, to have
been calculated solely, through the submission of spurious motions, to
unduly delay his legally -mandated departure from the United States.
We shall therefore deny the present motion to reconsider.
ORDER: The motion is denied.
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