Interim Decision #2944
MATTER OF ESCOBAR
In Deportation Proceedings
A-26365952
Decided by Board June 28, 1983
(1) The regulations provide that an alien shall have 10 days within which to perfect an
appeal from a decision of an immigration judge. 8 IC_F.R. 2422L The procedures for
computing the period of time for taking an appeal are silent as to the effect of the last
day of an appeal period falling on a Saturday. 8 C.F.R. 1.1(h).
(2) The Service's interpretation of this ambiguity would have the effect of shortening the
period under 8 C.F.R. 242.21 within which an alien could take an appeal. Absent a
showing that the Service's oMees are open on Saturdays, there is no legitimate distinction
between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect
his appeaL
(3) Consistent with the Congressional authorization and approval manifested in Rule 6(a),
Fed. R. Civ. P., and the pa Maple of fairness, the last, day of an appeal shall be included,
in computing the appeal period,, unless it is a Saturday, a Sunday, or a legal holiday,
in which event the period runs until the end of the next day which is not a Saturday,
a Sunday, or a legal holiday.
(4) Where the respondent conceded deportability at his hearing and does not contest that
finding on appeal, has not shover) eligibility for voluntary departure, and specifically
declined to apply for asylum, he has not shown that he was prejudiced by the absence of
counsel or that he was denied a full and fair hearing as required by due process.
(5) The respondent's motion to reopen for the purpose of applying for asylum will be denied
where he has not reasonably explained his failure to assert the claim prior to the completion of the deportation hearing and where prima facie eligibility for the requested
relief has not been established.
CHARGE:
ORDER: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(2)(2)1—Entered without inspection
ON BEHALF OF BESPONDLNT: • ON BEHALF OF SERVICE:
Marc Van Der Host, Esquire Ronald E. LeFevre
3689 18th Street Chief Legal Officer
San Francisco, California 94110
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The respondent appeals from the May 4, 1983, summary decision of
the immigration judge, finding him deportable under section 241(a)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and ordering
his deportation to El Salvation During the pendency of the appeal, the
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Interim Decision #2944
respondent filed a motion to reopen for the purpose of applying for
asylum. See 8 C.F.R. 208.11. The motion will be denied and the appeal
dismissed.
The respondent is a. 40-year-old native and citizen of El Salvador. He
entered the United States without inspection on March 2, 1983. At his
deportation hearing the respondent admitted the factual allegations,
conceded deportability, and informed the immigration judge that he did
not wish to apply for asylum.
Before reaching the merits of the respondent's appeal we must address
an initial question of our jurisdiction over this matter. The Service
contends that the respondent's appeal was not timely .filed, that the
immigration judge's decision is, therefore, administratively final, and
that as a result this Board lacks jurisdiction to hear the appeal. The
Service argues correctly that an appeal, in order to be timely, must be
taken within 10 days after an immigration judge renders a decision, and
that failure to do so results in the decision becoming administratively
final. See 8 C.F.R. 3.3, 242.21, and 243.1. The Service concludes that as
the respondent's appeal peribd ended on Saturday, May 14, 1 lP2, in
order to perfect his appeal he was required to file his Notice of Appeal
(Form I-290A) by the dose of business on Friday, May 13, 1983. This
conclusion is based on the Service's interpretation of 8 C.F.R. 1.1(h) 1
thawenlsdyofthaperilsonSatudyh
is included in computing the 10 day appeal period. We do not agree with
this interpretation.
We note that the language of 8 C.F.R. 1.1(h) tracks the language
contained in Rule 6(a) of the Federal Rules of Civil Procedure prior to
that rule's amendment in 1963. 2 Rule 6(a) was amended in 1963 to bring
it into conformity with the amendment of Rule 77(c), deleting Saturday
as a day in which the clerk's office was to be open during business hours.
Rule 6(a) now provides:
In computing any period of time prescribed or allowed by these rules, by the local rules
of any district court, by order of cocoa, or by any applicable statute, the day of the act,
event, or default from which the designated period of time begins to run shall not be
8 C.F.R. L1(h) provides:
The term "day" when computing the period of tune for taking any actiun provided in
this chapter including the taking of an appeal, shall include Sundays and legal holidays,
except that when the last day of the period so computed falls on a Sunday or a legal
holiday, the period shall run until the end of the next day which is neither a Sunday
nor a legal holiday.
2 Rule 6(a) provided in relevant pa...
In computing any period oftime prescribed or allowed by these rules; by order of court,
or by any applicable statute, the day Of the act, event, or default after which the
designated period of time begins to run is not to he included. The last day of the period
so computed is to be included, unless itis a Sunday or a legal holiday, in which event the
period runs until the end of the next day which is neither a Sunday nor a holiday.
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Interim Deeiskin #2944
included. The last day of the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, a Sunday, or a legal holiday. The amended language clearly
reflects Congress' intent not to include as the last day of an appeal period a day in which
the clerk's office is not open for business.
The regulations provide that an alien shall have 10.days within which
to perfect an appeal from a decision of an immigration judge. 8 C.F.R.
242.21. The procedUres outlined in 8 C.F. R. 1.1ChMor computing the
period of time for taking an appeal are silent, as to the effect of the last
day of an appeal period falling on a Saturday. The Service's interpretation of this ambiguity would have the effect of shortening the period
under 8 C.F.R. 242.21 within which an* alien could take an appeal.
Absent a showing that the Service's offices are open on Saturdays,
there is no legitimate distinction between Saturdays, Sundays and legal
holidays with regard to an alien's ability to perfect his appeal. We decline,
therefore, to adopt the Service's interpretation of 8 C.F.R. 1.1(h). We
defer, instead, to the Congressional authorization and approval manifested in Rule 6(a), Fed. R.. Civ. P., and the interest of fairness in
holding that in computing the period of time under 8 C.F.R. 1.1(h) for
taking an appeal, the last day of the period so computed shall be included
unless it is a Saturday, a Sunday, or a legal holiday, in which event the
period runs until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday.
In the present case, the respondent's appeal period ended on Saturday,
May 14, 1983. He filed his Notice of Appeal with the Service's San
Francisco office on Monday, May 16, 1983, that office apparently not
being open on Saturday. We conclude, pursuant to our interpretation of
8 C.F.R. 1.1(h), that the respondent's appeal was timely filed and.that
we may properly exercise our jurisdiction over this matter. See 8 C.F.R.
3.1(b)(2).
On appeal, the respondent contends that the immigration judge should
have granted him voluntary departure and that he was denied his right
to effective assistance to counsel. The appeal is without merit.
The respondent freely conceded his deportability for entry without
inspection under section 241(a)(2) of the Act and does not now contest
that finding. His deportability has been established by evidence which is
clear, convincing, and unequivocal as required by Woodby v. INS, 385
U.S. 276 (1966). Furthermore, we find no indication in the record or in
the respondent's brief and supporting documents on appeal that he
requested or was eligible for voluntary departure. There has been no
,
showing that the respondent had theavaable funds and the immediate
means with which to depart promptly from the United States as required
by the regulations. 8 C.F.R. 244.1. Accordingly, there is no basis to
conclude that the respondent was improperly denied voluntary departure.
Nor is there any basis to conclude that the respondent was denied his
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Interim Decision #2944
right to counsel or that he was prejudiced by the absence of counsel at
his deportation hearing. Respondent's counsel states on appeal that he
is informed that the respondent waived his right to counsel. There is no
evidence in the record and none submitted by the respondent on appeal
that his waiver was not competently, understandingly, and voluntarily
made. The requirements of due process under the Fifth Amendment are
satisfied by a full and fair hearing. Ramirez v. INS, 550 F.2d 560 (9 Cif..
1977). An alien has been denied a full and fair hearing as required by due
process only if the matter complained of causes the alien to suffer some
prejudnce. Nicholas v. INS,
590 F.2d 802 (9 Cir. 1979). The respondent
has not shown that he was prejudiced by the absence of counsel at his
deportation hearing. The respondent conceded his deportability for entry
without inspection and does not contest his deportability on appeaL He
has not shown that he was statutorily eligible for voluntary departure
and specifically informed the immigration judge that he did not wish to
apply for asylum.
The only remaining issue to be decided is the respondent's motion to
reopen for the purpose of applying for asylum and withholding of depor-
,
tation under sections 208(a) and 243(h) of the Act, 8 U.S.C. 1158(a) and
1253(h).3 For the reasons stated.helow, the motion will be denied.
A motion to reopen deportationproceedings for the purpose of applying for asylum or withholding of deportation will not be gralited where
prima fade eligibility for such relief has not been established or the alien
has not reasonably explained his failure to assert the claim prior to
completion of the deportation hearing. 8 C.F.R. 208.11. See Martinez-Romero v. INS, 692 F.2d 595 (9 Cir. 1982), affg Matter of Martinez-Romero,
18 I&N Dec. 75 (BIA 1981). Nor will it be granted unless
the evidence sought to be offered is material, was not available, and
could not have been discovered or presented at the time of the original
hearing. 8 C.F.R. 3.2, 103.5, and 242.22.
The respondent's motion does not satisfy the requirements set forth
in the regulations. The evidence submitted with the motion in support of
the persecution claim was available at the time of the deportation hearing.
The respondent has not reasonably explained his failure to timely file his
asylum application. The vague and unsubstantiated assertion that he
was operating under misinformation when he infornied the immigration
judge that he did not wish to apply for asylum is not sufficient. 8 C.F.R.
208.11. See Matter of Jean,
17 I&N Dec. 100. (PIA 1979). We find the
respondent's explanation incredible in view of his abandonment of family and country and his journey from El Salvador to the United States
for the claimed purpose of seeking asylum. Moreover, the respondent
8 Asylum requests made after the institution of deportation proceedings shall also be
considered requests for withholding of deportation. 8 C.P.R. 208.3(b).
41:5
Interim Decision #2944
has not shown prima fade eligibility for the requested relief.
The law is well settled that an applicant for asylum or withholding of
deportation hears, the burden of proving that he has a well founded fear
-
of persecution if returned to his native land. See Haitian Refuyee Center
v. Smith., 676 F.2d 1023 (5 Cir. 1982); Fleurinorv. INS,
585 F.2d 129 (5
Cir. 1978). This language refers to more than the alien's subjective state
of mind. He must demonstrate a realistic likelihood that he will be
persecuted on account of his race, religion, nationality, membership in a
particular social group, or political opinion. See McMullen v. INS;
658
F.2d 1312 (9 Cir. 1981); Khalil v. District Director of Immigration and
Naturalization Service,
457 F.2d 1276 (9 Cir. 1$72); Kovac v. INS,
407
F.2d 102 Cir. 1969). The respondent has not shown that he will be
persecuted or that helms a well-founded fear of persecution within the
meaning of section 208(a) or 243(h) of the Act. Our conclusion as to the
respondent's claim is the same whether we apply a standard of "dear
probability," "good reason," or "realistic likellood." See Rejaie v. INS,
691 F.2d 139 (3 Cir. 1982).
The respondent has presented no objective evidence which indicates
that he as an individual would be persecuted or supports his generalized
assertions of persecution. Such assertions, standing alone, are not
sufficient. See Rejaiev_ 7NS surav, - Mogheinion, v. United States Depart-
,
' ment of Justice, 577 F.2d 141 (9 Cir. 1978). Although the respondent
stated that he was arrested and detained for 30 days, there is no evidence that he was fiirther threatened or harmed following his release.
We note that the respondent stated that, in fear of being persecuted he
abandoned his family and country and fled to Mexico where he lived for
several months. There is no indication that the respondent sought asylum in Mexico. Moreover, in spite of his claimed fear of being persecuted,
he returned to El Salvador and resumed living with his family where he
remained for several months before departing for the United States.
Notwithstanding the reported general conditions of anarchy and political and economic strife in El Salvador demonstrated by the documents
submitted in support of the respondent's motion, there is no evidence
that the respondent was ever persecuted or the likelihood that he will
be. See Martinez-Romero v. INS, supra.
Accordingly, the motion to reopen will be denied and the appeal
dismissed.
ORDER: The motion is denied and the appeal dismisied.
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