M-P

Interim Decision #32I7




                             MATTER OF M-P-

                          In Deportation Proceedings

                                    A-29966235

                      Decided by Board April 28, 1994

  When a motion to reopen deportation proceedings is denied, the immigration judge
must identify and fully explain the reasons for such decision; otherwise, the parties are
deprived of a fair opportunity to contest the immigration judge's determination on
appeal, and the Board of Immigration Appeals is unable to meaningfully exercise its
responsibility of reviewing the decision in light of the arguments advanced on appeal.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [

(a)(2)j—Entered without inspection
ON BEHALF OF RESPONDENT: Ernesto Varas, Esquire
                                       I 840 Coral Way, Suite 303
                                       Miami, Florida 33145

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members


   This case is before us on appeal from a decision of the immigration
judge dated September 12, 1991, denying the respondent's motion to
reopen his deportation proceedings in order to apply for asylum and
withholding of deportation. The record will be remanded.
   In tracing the procedural history of this case we note that on May 5,
1989, an immigration judge granted the respondent's motion to change
venue in his case from Harlingen, Texas, to Miami, Florida. The
record reflects that a hearing was conducted on September 26, 1989, in
Miami, but the respondent did not appear.
Accordingly, the immigration judge conducted the hearing in absentia
and issued a decision finding the respondent deportable as charged
and ordering his deportation to Nicaragua, his country of citizenship.
No appeal was taken. On August 29, 1991, the respondent filed a
motion to reopen requesting an opportunity to apply for asylum and
withholding of deportation. Appended to the motion were a Request
for Asylum in the United States (Form 1-589) and a number of
supporting documents.
  In a decision dated September 12, 1991,the immigration judge

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denied the motion, merely stating that the motion had been "duly
considered" and that "no substantial grounds [hadi been advanced to
warrant its grant." The immigration judge did not provide any further
explanation or otherwise state the basis for denying the motion. The
respondent appealed.
   In Matter of Felix, 

 (BIA 1972), this Board stated:
  A respondent in a deportation proceeding who files a motion and submits the
  required fee is entitled to an adjudication by the tribunal having jurisdiction. The
  decision need not be long or elaborate. However summary, it should state the basis
  for decision sufficiently, so that an appellate tribunal can appraise it. Decisions of
  [immigration judges] on motions in deportation proceedings are appealable to this
  Board .... An alien's right to have this Board on appeal review the adverse decision
  of [an immigration judge] would be rendered nugatory if the [immigration judge]
  were permitted thus summarily to reject his motion without adjudicating it.

 (footnote omitted); see also Matter of Correa, 

 (BIA 1984) (finding decision of immigration judge granting
motion to reopen by use of a conclusory order to be inadequate where
reasons for granting such motion were not articulated); Matter of
Daryoush, 

 (BIA 1982) (finding decision of district
director insufficient where it failed to explain reasons for denying a
request for a reduction in bond even though federal regulations do not
specifically set forth such a requirement in such circumstances); 

(a) (1993) (requiring immigration judge to discuss
evidence pertinent to any application for relief made pursuant to 

 and to state reasons for granting or denying such
relief).
   Although the immigration judge in the case before us adjudicated
the respondent's motion, he did not provide any explanation, however
brief, of his reasons for doing so. Hence, the respondent is left to
speculate as to the reasoning employed by the immigration judge in
reaching his decision. This Board is placed in the same position. Since
the immigration judge did not articulate the reasons for his decision, it
is not known whether he denied the motion because it failed to (1)
reasonably explain the respondent's absence at the hearing conducted
September 26, 1989; (2) meet the regulatory requirements for reopening; (3) be supported by new evidence not previously available; (4)
reasonably explain why the respondent did not apply for asylum and
withholding of deportation in the prior proceedings; (5) establish a
prima facie case for reopening; or (6) establish that reopening was
merited as a matter of discretion. See generally 

, 3.8(a),
103.5(a). 242.22 (1993); Matter of Coelho, 

 (BIA
1992), and cases cited therein.
   When a motion is denied and the reasons for such denial are either
unidentified or not fully explained, an alien is deprived of a fair
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opportunity to contest that determination on appeal. Similarly, this
Board is unable to meaningfully fulfill its responsibility of reviewing
the immigration judge's denial of the motion in light of the arguments
advanced on appeal. Therefore, we find it appropriate to remand the
record in the instant case for consideration of the motion and
preparation by the immigration judge of a decision explaining his
reasoning.
   Accordingly, the record will be remanded to the immigration judge
to further consider the motion and enter a new decision which explains
the reasons for such decision.
   ORDER:         The record is remanded to the immigration judge for
further proceedings in accordance with the foregoing opinion and the
entry of a new decision.




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