TIWARI

Interim Decision #3145




                          MATTER OF TIWARI
                         In Deportation Proceedings
                                     A-36477665

                    Decided by Board March 27, 1991

  In denying the Immigration and Naturalization Service's motion to reconsider Matter
of Tiwari, 

 (BIA 1989), the Board of Immigration Appeals clarified its
previous decision and explained that the trier of fact is not prohibited from making
inferences from evidence introduced in deportation proceedings, but that under the
circumstances of this case, the inference suggested by the Service was inadequate to
establish the respondent's deportability by clear, unequivocal, and convincing evidence.
CHARGE.

Order: Act of 1952—Sec. 241(a)(13) [

(a)(13)]—Smuggling for gain
Lodged: Act of 1952—Sec. 241(a)(4) [

(a)(4)]—Crime involving moral
                         turpitude

ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Mary A. McCarthy, Esquire                             Weldon S. Caldbeck
  Jerome N. Frank Legal Services                        General Attorney
    Organization
  Yale Law School
  New Haven, Connecticut 06520

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   This case was last before the Board of Immigration Appeals on
March 10, 1989, when we dismissed the Immigration and Naturalization Service's appeal from the decision of the immigration judge which
had terminated the respondent's deportation proceedings. See Matter
of Tiwari, 

 (BIA 1989). The Service has filed a motion
to reconsider our decision. The motion to reconsider will be denied.
   A motion to reconsider must state the reasons upon which the
motion is based and include such precedent decisions as are pertinent.

(a) (1990). A motion to reconsider which is based on a
legal argument which could have been raised earlier in the proceedings
will not ordinarily be granted. See Matter of Medrano, 

 (BIA 1990, 1991).
   The Service's motion to reconsider in this case is based on one

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sentence in mu decision in Matter of Tiwari, supra. The Service objects
to the sentence, which provides as follows: "An inference cannot be
drawn to establish an alien's deportability, however, since inference-drawing falLs short of the 'clear, unequivocal, and convincing' evidence
standard that governs deportation cases." Id. at 879. The Service
submits that this sentence is "legally unjustified" and argues that
inferences drawn from circumstantial evidence have been allowed to
support verdicts in both civil and criminal cases.
   In the pales preceding the sentence in question, the Board reviewed
the issue of whether the Service had met its burden of proving the
respondent's deportability under section 241(a)(13) of the Immigration and Nationality Act, 

(a)(13) (1988). 

.
The Service relied on a transcript from the respondent's criminal
proceedings as its evidence of the respondent's deportability pursuant
to section 2-41(a)(13). The transcript revealed that the respondent's co-conspirator in an alien-smuggling scheme acknowledged that he had
agreed to pay the respondent "for his time." The Service contended
that the co conspirator's testimony demonstrated that the respondent
            -


and his co-conspirator had contemplated "an hourly wage" for the
respondent's participation in the alien-smuggling scheme, and that,
accordingly, the "for gain" requirement in section 241(a)(13) had been
satisfied) We found the co-conspirator's reference to "time," however,
to be ambiguous. We determined that because there were several,
equally valid meanings which could be attributed to the co-conspirator's testimony, and the Service had not submitted any additional
evidence to support its interpretation of the testimony, an inference
could not be drawn in the Service's favor to establish the respondent's
deportability.
   The sentence which the Service has scrutinized in its motion was
not intended to serve as a rule of law prohibiting the trier of fact from
making inferences from evidence introduced at deportation hearings.
In the con-text of this case, however, we found that the Service's
suggested inference was inadequate to establish by "clear, unequivocal,
and convincing" evidence that the respondent had participated in an
alien smuggling conspiracy "for gain." When the sentence which the
     -


Service has isolated in its motion is kept in its proper context, it should
be understood not as a ban on inference-drawing, but rather as an
observation that, under the particular circumstances of this case, the

  1 We note tint Congress has eliminated the "for gain" requirement from the alien-smuggling ground of deportability. See the Immigration Act of 1990, Pub. L. No. 101-
649, § 602(a) 

, 5077-78 (effective March 1, 1991) (to be codified at
             ,


section 241(a)(1)(E)(i) of the Act).

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suggested inference was inadequate to meet the Service's burden of
proof.
  Accordingly, we find no reason to disturb our prior decision in this
case. The Service's motion will be denied.
   ORDER:       The motion to reconsider is denied.




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