RUIZ

                                                             Interim Decision #3116




                             MATTER OF RUIZ

                            In Exclusion Proceedings
                                     A 27719773
                                       -




                       Decided by Board July 13, 1989

(1) Following an in absentia hearing, the underlying relief being sought by way of a
  motion to reopen is the opportunity to present the applications for relief at a full
  evidentiary hearing.
(2)Where an alien establishes reasonable cause for his failure to appear at his exclusion
  hearing, a motion to reopen the proceedings following an in absentia hearing will be
  granted without requiring that the alien establish prima facie eligibility for asylum or
  withholding of exclusion and deportation.
EXCLUDABLE: Act of 1952—Sec. 212(a)(20) [

(a)(20)1—No valid
                                   immigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
  Salomon Lucid, Esquire                                 Kenneth S. Hurewitz
  1996 S.W. First Street                                 General Attorney
  Miami, Florida 33135

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


  In a decision dated September 15, 1987, an immigration judge
found the applicant excludable under section 212(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. § I182(a)(20) (1982), as an
alien with no valid immigrant visa, denied his applications for asylum
and withholding of exclusion and deportation for lack of prosecution,
and ordered the applicant excluded and deported from the United
States. The decision was rendered following a hearing held in absentia
due to the applicant's failure to appear. The applicant subsequently
filed a motion to reopen the exclusion proceedings. The immigration
judge denied the motion to reopen in a decision dated December 9,
 1987. The applicant has appealed from the denial of the motion to
reopen. As it is unclear whether the appeal was timely filed, the Board
will review this case on certification pursuant to 

(c)
(1988). The decision of the immigration judge will be reversed and the
record will be remanded. The request for oral argument is denied.
   The applicant initially appeared at an exclusion hearing on Septem-
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ber 10, 1986. At that time, the proceedings were continued in order to
allow the applicant to submit an asylum application, with a hearing on
the merits of the application ultimately scheduled for September 14,
1987. The applicant failed to appear for the scheduled hearing. In
denying the motion to reopen, the immigration judge found, on the
basis of a physician's letter submitted with the motion, that the
respondent had been unable to attend the scheduled hearing due to
illness and had established a "valid excuse" for his failure to appear
for the hearing. However, the immigration judge denied the motion to
reopen the exclusion proceedings on the basis that the applicant had
not established prima facie eligibility for asylum or withholding of
exclusion and deportation under sections 208(a) and 243(h) of the Act,
respectively, 

(a) and I253(h) (1982).
    The immigration judge erred in requiring the applicant to establish
prima facie eligibility for asylum or withholding of exclusion and
deportation in order for the motion to be granted, where the motion
was filed in response to a decision by the immigration judge following
a hearing held in absentia. A mution to reopen may be denied on the
basis that the applicant has not established a prima facie case for the
underlying substantive relief sought. See INS v. Abudu, 

(1988). But in the context of a prior in absentia hearing, the underlying
relief being sought by way of the motion to reopen is the opportunity
to present the applications for relief at a full evidentiary hearing. The
right to such a hearing for purposes of determining excludability and
presenting any applications for relief from exclusion is provided by
statute and regulation. See section 236(a) of the Act, 

(a) (1982); 

 (1988).
  When an applicant for admission has notice of his exclusion hearing
and fails to appear, the immigration judge may, in his discretion, find
that the applicant has failed to establish his admissibility and has
abandoned any application for asylum and may further order the
applicant excluded and deported. Matter of Nafi, 

(BIA 1987). Where an immigration judge conducts an exclusion
hearing in absentia, the alien can move to have the immigration judge
reopen the proceedings when the cause of the alien's failure to appear
relates to facts not before the immigration judge at the time of his
decision. Matter of Haim, 

 (BIA 1988).
   A party seeking to reopen exclusion or deportation proceedings
must state the new facts he intends to establish, supported by affidavits
or other evidentiary material. 

 (1988); INS v. Wang,

 (1981); Matter of Leon-Orosco and Rodriguez-Colas, 

 (BIA 1983; A.G. 1984); Matter of Reyes, 

 (BIA 1982). When the basis for a motion to reopen is that the
immigration judge held an in absentia hearing, the alien must establish
                                                Interim Decision #3116

that he has reasonable cause for his absence from the proceedings.
Section 242(b) of the Act, 

(b) (1982) (deportation
proceedings); Matter of Haim, supra; Matter of NO, supra; Matter of
Patel, 

 (BIA 1985), aff'd, 

 (5th Cir.
1986); Matter of Marallag, 

 (BIA 1971). If the alien
has reasonable cause for his failure to appear, the motion will be
granted; if he does not, the motion will be denied. Matter of Haim,
supra. Once reasonable cause has been established, the applicant
retains his statutory right to an opportunity to present his asylum
claim at a hearing. To require him to establish prima fade eligibility
for asylum in conjunction with his motion to reopen, before he is given
the opportunity to a hearing on his asylum claim, would violate his
statutory right to such a hearing.
   Here, the immigration judge, in finding that the applicant had a
"valid excuse" for not appearing at his exclusion hearing, determined
that the applicant had reasonable cause for his failure to appear.
Therefore, he erred in denying the motion to reopen. Accordingly, the
decision of the immigration judge will be reversed, and the record will
be remanded to afford the applicant a full evidentiary hearing on the
merits of his applications for asylum and withholding of exclusion and
deportation.
   ORDER:         The decision of the immigration judge is reversed.
  FURTHER ORDER:                 The motion to reopen proceedings is
granted, and the record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and for the
entry of a new decision.




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