Interim Decision #2907
MATTER OF REYES
In Deportation Proceedings
A-20004461
Decided by Board June 30, 1982
(1) Where a final order of deportation has been outstanding for many years and could not
be executed because the respondent went into hiding, at a minimum, a clear and unambiguous showing of prima fade eligibility for suspension of deportation must be made
before the Board will favorably consider a motion to reopento apply for such relief.
(2) Even assuming that statutory eligibility for the underlying relief sought is clearly
demooatrated, a motion to reopen can bedenled for purely discretionary reasons where
a review of the record in its entirety reflects either little likelihood of success on
the merits or significant reasons for denying reopening based on the respondent's
actions.
CHARGE.
Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant--remained
longer than permitted ,
ON BEHALF Or RESPONDENT: ON BEHALF OF SERVICE:
Lloyd A. Tasoff, Esquire Howard Horn
Tasoff & Tasoff General Attorney
10880 Wilshire Blvd., Suite 1220
Los Angeles, California 90024
BY: Milhollan, Chairman; Maniatis, Dunne, Morris and Vacca, Board Members
On November 18, 1980, this Board dismissed the respondent's appeal
from a decision of an immigration judge denying her motion to reopen
deportation proceedings in order to apply for suspensionof deportation
under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
1254(a)(1). On April 'I, 1982, the United States Court of Appeals for the
Ninth Circuit reversed the Board's decision and remanded the case for
further consideration. Reyes v. INS, 673 F.2d 1087 (9 Cir. 1982). Upon
reconsideration, the appeal is again dismissed.
The respondent is a 34-year-old native and citizen of the Philippines.
She entered the United States as a nonimmigrant visitor for pleasure on
October 30, 1968, and was authorized to remain as a visitor until June
1969. 1 She did not depart.
The respondent's application for suspension of deportation (Form 1-256A) reflects that
249
Interim Decision #2907
In April 1970, the Immigration and Naturalization Service issued an
Order to Show Cause charging the respondent with being deportable
under section 241(a)(2) of the Act, B U.S.C. 1251(a)(2), as an "overstayed"
visitor. At deportation proceedings in May 1970, the respondent conceded deportahility and requested only that she be permitted to voluntarily depart from the United States. The immigration judge found the
respondent deportable as charged and granted her the privilege of 30
days voluntary departure. His order of deportation became final as no
appeal was taken to this Board.
The respondent did not depart from the United States. By her own
characterization, she "panicked" and went into hiding. Service efforts to
locate her were unsuccessful.
Years passed and the respondent remained in hiding. In September
1977, the respondent's parents entered the United States as lawful permanent residents. 2 In April 1979, her parents and her United States
citizen sister filed visa petitions on her behalf. Both second and fifth
preference petitions were approved. See sections 203(a)(2) and (5) of the
Act, 8 U.S.C. 1153(a)(2) and (5).
On July 23, 1979, the respondent surrendered to immigration authorities. Two days later, she filed a motion to reopen to apply for suspension
of deportation, having accumulated while in hiding over 7 years continuous physical presence in this country. Her "extreme hardship" claims
were based primarily on the hardshipit was alleged would be suffered
by her lawful permanent resident parents, who entered this country
some 7 years after she had become subject to a final order of deportation.
As noted, the immigration judge denied the motion to reopen 3 and an
appeal from that decisiOn was dismissed by this Board.
In support of her motion to reopen the respondent submitted her own
affidavit and one by each of her parents. The essence of the hardship
claim is that her parents are elderly; 4 that they are in precarious health;`)
that she is the only child now living with them; that they depend on
her for transportation to doctors, assistance in household chores, and
companionship; and that she istheir only source of income as the other
by January 1962 (less than 2 months after her entry as a visitor), she was employed by an
insurance company in Los Angeles. Such employment was inconsistent with her status as
a visitor for pleasure.
2 The remainder of the respondent's seven brothers and sisters who were not already in
the United States in 1977 have apparently now entered as lawful permanent residents.
One sister is a citizen of this country.
2 Respondent's counsel was subsequently to concede that the motion presented to the
immigration judge was inadequate. Supplemental matters in support of the motion were
offered while the immigration judge's decision was initially on appeal before this Board.
The respondents parents were then 62 years old. They are now in their mid-60's.
5 It is stated that her father suffers from hypertension, kidney malfunction, heart disease,
and glaucoma. No specific health problem is noted as to the respondent's mother.
250
Interim Decision #2907
children have "financial problems as well and cannot help out." No affidavits were subMitted from the respondent's brothers and sisters who
reside lawfully in this country.
Considering the background of this case (e.g., that proceedings had
been final for 9 years when the motion was filed) and the nature of the
supporting information submitted, the Board concluded both that an
insufficient evidentiary showing of extreme hardship had been presented
to warrant reopening and that the unlikelihood of relief being granted in
the exercise of discretion warranted dismissal of the appeal.
On review by the Ninth Circuit, it was stated that our ruling on
• extreme hardship was based on our disbelief of the statements made in
the affidavits; that the Board's premature assessment and rejection of
the truth of those statements was manifestly unfair; and that disbelieving the statements because of the lack of corroboration "imposed a
heavy burden of evidentiary support which [was] inconsistent with the
limited screening function served by a motion to reopen." It was further
stated that this requirement of corroboration was inconsistent with the
requirements of 8 C.F.R. 3.8(a). As the process by which the motion
was considered was deemed defective, the case was remanded so that
this Board could reconsider whether a prima facie case of extreme hardship was established_ The Ninth Circuit further stated that it had grave
doubts whether this Board could consider factors other than those pertaining to the establishment - of a prima facie case in ruling on a motion to
reopen.
We initially note that we do not consider that the corroboration we
found lacking in this case imposed a heavy evidentiary burden on the
respondent or that such requirement was in violationof 8 C.F.R. 3.8(a),
which sets forth the minimum requirements upon which a motion can
be granted. However, we add that under the factual background of
cases such as this, we consider it warranted and reasonable to require a
clear, unambiguous showing of evidentiary support to justify reopening
with all its attendant delays,
We would clarify that our previous-conclusions as to the sufficiency of
the affidavits supporting this case had more to do with what was not
stated in the affidavits than what was stated in them. Our decision was
not principally based on a disbelief of the "facts" set forth in the affidavits.
Even accepting the truth of what was stated therein, the affidavits contained significant omissions.
The respondent's parents have seven other children living lawfully in
this country. The motion papers do not indicate where the children
reside. The affidavits state that the respondent is the only child still
residing at home, but they do not indicate that other children could not
reside with the parents if absolutely necessary, or that the parents
could not reside with any of the many other children. The affidavits state
251
Interim Decision #2907
that the respondent provides care, transportation, and comfort to her
parents, but they do not state that such assistance could not be provided
by the other children. In fact, the only specific circumstance regarding
the other children referenced in the affidavits is that the other family
members have "financial problems ... and cannot help out [with the financial support of their parents)." We did not find it unreasonable to require
affidavits to that effect from the other children, who are in a far better
position to know whether or not they could assist in the support of their
parents if necessary. 6
As this case had been closed for some 9 years when the respondent
. sought reopening, we did not consider the nature of the supporting
allegations we required to be unreasonable. In view of the time that had
elapsed since the final order of deportation, the reason that the order
could not be previously executed, and the delays that reopening would
necessarily entail, we did not and do not consider it unreasonable,
arbitrary, or manifestly unfair to require as a minimum a clear and
unambiguous showing of prima facie eligibility for relief before reopening will be favorably considered. Under facts such as those arising here,
we do require a significant showing of a likelihood of success on the
merits before reopening will be ordered.
Accepting the allegations specifically set forth in the affidavits to be
true, but not accepting as true matters not alleged therein, and considering the potential of this respondent to lawfully immigrate to the United
States as a result of her approved second-preference visa petition,' our
conclusion -would still be that a prima fade showing of extreme hardship
has not been adequately set forth on the record before us.
However, we do not fmd it essential to reach such a conclusion. Even
assuming for the purposes of review that a prima facie showing of
extreme hardship is set forth, we specifically decline in the exercise of
discretion to order the proceedings reopened.
We recognize that in Urbano de Malatuan v. INS, 577 F.2d 589, 593
(9 Cir. 1978), the Ninth Circuit stated that if a prima fade case of
eligibility for suspension of deportation was set out in a motion to reopen,
it would be an abuse of discretion for the Board not to order the proceedings reopened to allow for a hearing on the merits of the application_ In
Jong Ha Wang v. INS,
622 F.2d 1341 (9 Cir. 1980), and Villena v. INS,
1 ' As noted by the Service in its opposition to the motion to reopen, when the parents
entered the United States as lawful permanent residents only 2 years before this motion
was filed, it had to have been demonstrated that there was an ability forthem to be
financially supported. As the respondent was then in hiding under. a final order of
deportation, this showing could not have been made by reference to her resources.
7 Her priority date is April 12, 1979. The immigrant numbers for June 1982 reflect that
second-preference visas are available to persons charged to the Philippines with priority
dates as of April 1, 1979.
252
Interim Decision #2907
622 F.2d 1352 (9 Cir. 1980), this position was reaffirmed by that Court.
See also Glum v. INS,
597 F.2d 168, 170 (9 Cir. 1979). In INS v. Wang,
101 S. Gt. 1087, 1030 n. 5 (1981), the Supreme Court, however, noted
that the regulations regarding reopening are framed negatively and
authorize reopening only when certain minimum conditions are satisfied.
Sea 8 C.F.R. 3.2 and 3.8. The Supreme Court stated that these regulations do not affirmatively require reopening under any particular conditions and that they "may be construed to provide the Board with discretion in determining under what circumstances a proceeding should be
reopened." Circuit Judge Wallace's dissent in Villena v. INS, supra,
regarding this issue was cited with apparent approval. With all deference to the Ninth Circuit's doubts concerning the authority of this Board
to deny a motion to reopen a proceeding in the exercise of discretion, we
find that the Board has such authority.
A predecessor regulation to 8 C.F.R. 3.2 and 3.8, specifically provided that the grant or denial of a motion to reopen .was solely within the
discretion of the Board. See Arakas v. Zimmerman,
200 F. 2d 322, 323
n. 2 (3 Cix. 1952); Kavddias v. Cross,
82 F. Supp. 716, 719-20 (N. D. hid.
1948). We do not find the absence of such specific. authorization in the
present regulation controlling as decisions regarding the reopening of
proceedings have traditionally been considered actions within the sound
discretion of administrative authorities. United States v. Pierce Auto
Freight Lines,
327 U.S. 515, 535 (1946); Interstate Commerce Commission. v. Jersey City,
322 U.S. 503, 514-15 (1944). See also Wolf v. Boyd,
238 F.2d 249, 254 (9 Cir. 1957), cert. denied,
353 U.S. 936 (1957).
Moreover, the controlling regulations (8 C.F.R. 3.2 and 3.8) merely set
forth minimum requirements which if not satisfied preclude the Board
from granting reopening. It is provided that the Board "may" grant
'reopening in specified circumstances.
The Board has long held that motions to reopen can be denied for
purely discretionary reasons. See Matter of Lam.,
14 I&N Dec. 98 (BIA
1972). The bases for such denials often involved actions by-aliens in
extending their stays' in this country through dilatory tactics or by
otherwise flouting the immigration laws, as is the case here. We are
unaware of the reversal of any such order on the basis of 'a lack of
authority to deny reopening in the exercise of discretion. Conversely,
the authority to deny reopening in the exercise of discretion has been
upheld. See Pang Kiu Fung v. INS,
663 F.2d 417, 419 (2 Cir. 1981);
Lam Chuen Ching v. INS,
467 F.2d 644, 645 (3 Cir. 1972); Chul Hi Kim
v. INS,
357 F.2d 904, 907 (7 Cir. 1966). 8 Most recently, the United
a This moarek discretionary authority to deny motions to reopen to apply for adjustment of status under section 245 of the Act, 8 U.S.C. 1255, has been affirmed by the Ninth
Circuit in Obits v. INS,
623 F.2d 1331 (9 Cir. 1980). Although disagreeing with Circuit
Judge Tang's ultimate conclusion in his dissent in ,Obitc. we must admit to sharing his
253
Interim Decision #2907
States Court of Appeals for the Sixth Circuit has recognized the Board's
authority in this regard. See Balani v. INS, 669 F.2d 1157, 1161-626
Cir. 1982). The Ninth Circuit has in fact affirmed a recent discretionary
denial by this Board of a suspension motion after finding the Supreme
Court's decision in, Wang controlling on the issue of whether such action
was authorized.
Finally, we note that it is clear that this Board can pretermit threshold issues of eligibility for relief if we are satisfied that an application
would be denied in the exercise of discretion whether or not eligibility is
established_ INS v. Bagamasbad,
429 U.S. 24 (1976). This principle has
been held applicable in adjudicating motions to reopen. See Hibbert v.
INS,
554 F.2d 17, 21-22 (2 Cir. 1977).
Accordingly, we reaffirm our long-held position that, even assuming
statutory eligibility for the underlying relief sought, motions to reopen
can be denied for purely discretionary reasons where a review of the
record reflects either little likelihood of success on the merits or significant reasons for denying reopeningbased on the respondent's actions.
In this case, considering the record in its entirety, we find that the
application for suspension of deportation would be denied in the exercise
of discretion. Accordingly, we do not find reopening warranted. In this
regard, we consider the following: This respondent has continuously
flouted the immigration laws of the United States except when they
served her purposes. She entered the United States in October 1968 as
a visitor for pleasure and has been out of status since at least June '30,
1969. Her employment before that date suggests she was out of status
as early as January 1969, some 60 to .90 days after entry. She requested
voluntary departure in May 1970. Although granted such relief from
deportation, she did not depart. The respondent has been under a final
order of deportation since May 1970. All of her presence in the United
States after that date resulted from the fact that she went into hiding
and could not be located by the Service. The hardship alleged in this case
relates principally to her parents, who did not enter this country until
1977 when their daughter had been under a final order of deportation
and in hiding for some 7 years. Further, the respondent's parents have
seven other children lawfully residing in this country and the respondent has the potential of lawfully returning to the United States based
on her approved second preference visa petition.
Considering these facts in their totality and accepting the matters
alleged in the respondent's supporting affidavits to be true, we find that
the underlying application for relief should be denied for purely discretionary reasons. No useful purpose would he served by ordering these
questions concerning the distinction set forth in the majority opinion between motions to
reopen to apply for suspension and those regarding adjustment applications.
254
Interim Decision #2907
long delayed proceedings reopened. Accordingly, the appeal will again
be dismissed.
ORDER On reconsideration, the appeal is dismissed.
255
