REYES
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 facie eligibility for suspension of deportation must be made before the Board will favorably consider a motion to reopen to apply for such relief. - Even assuming that statutory eligibility for the underlying relief sought is clearly demonstrated, a motion to reopen can bedenied 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.
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 suspension of deportation under
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 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
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 hardship it 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 reopen3 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;5 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 is their only source of income as the other
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
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 violation of
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
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,7 our conclusion would still be that a prima facie showing of extreme hardship has not been adequately set forth on the record before us.
However, we do not find 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 Malaluan v. INS, 577 F.2d 589, 593 (9 Cir. 1978), the Ninth Circuit stated that if a prima facie 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, 622 F.2d 1352 (9 Cir. 1980), this position was reaffirmed by that Court. See also Choe v. INS, 597 F.2d 168, 170 (9 Cir. 1979). In INS v. Wang, 101 S. Ct. 1027, 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. See
A predecessor regulation to
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
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 reopening based 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 be served by ordering these
ORDER: On reconsideration, the appeal is dismissed.