Interim Decision #2907 

MATTER OF REYES 

In Deportation Proceedings 

A-20004461 

Decided by Board June 30, 1982 

(1) 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 fade eligibility for suspension of deportation must be made 

before the Board will favorably consider a motion to reopento apply for such relief. 

(2) Even assuming that statutory eligibility for the underlying relief sought is clearly 

demooatrated, a motion to reopen can bedenled 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. 

CHARGE. 

Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant--remained 

longer than permitted , 

ON BEHALF Or RESPONDENT: ON BEHALF OF SERVICE: 

Lloyd A. Tasoff, Esquire Howard Horn 

Tasoff & Tasoff General Attorney 

10880 Wilshire Blvd., Suite 1220 

Los Angeles, California 90024 

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

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 suspensionof deportation 

under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 

1254(a)(1). On April 'I, 1982, the United States Court of Appeals for the 

Ninth Circuit reversed the Board's decision and remanded the case for 

further consideration. Reyes v. INS, 673 F.2d 1087 (9 Cir. 1982). Upon 

reconsideration, the appeal is again dismissed. 

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. 1She did not depart. 

The respondent's application for suspension of deportation (Form 1-256A) reflects that 

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In April 1970, the Immigration and Naturalization Service issued an 

Order to Show Cause charging the respondent with being deportable 

under section 241(a)(2) of the Act, B U.S.C. 1251(a)(2), as an "overstayed" 

visitor. At deportation proceedings in May 1970, the respondent conceded deportahility and requested only that she be permitted to voluntarily depart from the United States. The immigration judge found the 

respondent deportable as charged and granted her the privilege of 30 

days voluntary departure. His order of deportation became final as no 

appeal was taken to this Board. 

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. 2In 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 sections 203(a)(2) and (5) of the 

Act, 8 U.S.C. 1153(a)(2) and (5). 

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 hardshipit 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 reopen 3and 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; 4that they are in precarious health;`) 

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 istheir only source of income as the other 

by January 1962 (less than 2 months after her entry as a visitor), she was employed by an 

insurance company in Los Angeles. Such employment was inconsistent with her status as 

a visitor for pleasure. 

2The remainder of the respondent's seven brothers and sisters who were not already in 

the United States in 1977 have apparently now entered as lawful permanent residents. 

One sister is a citizen of this country. 

2Respondent's counsel was subsequently to concede that the motion presented to the 

immigration judge was inadequate. Supplemental matters in support of the motion were 

offered while the immigration judge's decision was initially on appeal before this Board. 

The respondents parents were then 62 years old. They are now in their mid-60's. 

5It is stated that her father suffers from hypertension, kidney malfunction, heart disease, 

and glaucoma. No specific health problem is noted as to the respondent's mother. 

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children have "financial problems as well and cannot help out." No affidavits were subMitted from the respondent's brothers and sisters who 

reside lawfully in this country. 

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 8 C.F.R. 3.8(a). As the process by which the motion 

was considered was deemed defective, the case was remanded so that 

this Board could reconsider whether a prima facie case of extreme hardship was established_ The Ninth Circuit further stated that it had grave 

doubts whether this Board could consider factors other than those pertaining to the establishment -of a prima facie case in ruling on a motion to 

reopen. 

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 violationof 8 C.F.R. 3.8(a), 

which sets forth the minimum requirements upon which a motion can 

be granted. However, we add that under the factual background of 

cases such as this, we consider it warranted and reasonable to require a 

clear, unambiguous showing of evidentiary support to justify reopening 

with all its attendant delays, 

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 

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that the respondent provides care, transportation, and comfort to her 

parents, but they do not state that such assistance could not be provided 

by the other children. In fact, the only specific circumstance regarding 

the other children referenced in the affidavits is that the other family 

members have "financial problems ... and cannot help out [with the financial support of their parents)." We did not find it unreasonable to require 

affidavits to that effect from the other children, who are in a far better 

position to know whether or not they could assist in the support of their 

parents if necessary. 6 

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,' our 

conclusion -would still be that a prima fade showing of extreme hardship 

has not been adequately set forth on the record before us. 

However, we do not fmd 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 Malatuan v. INS, 577 F.2d 589, 593 

(9 Cir. 1978), the Ninth Circuit stated that if a prima fade 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, 

1' As noted by the Service in its opposition to the motion to reopen, when the parents 

entered the United States as lawful permanent residents only 2 years before this motion 

was filed, it had to have been demonstrated that there was an ability forthem to be 

financially supported. As the respondent was then in hiding under. a final order of 

deportation, this showing could not have been made by reference to her resources. 

7 Her priority date is April 12, 1979. The immigrant numbers for June 1982 reflect that 

second-preference visas are available to persons charged to the Philippines with priority 

dates as of April 1, 1979. 

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622 F.2d 1352 (9 Cir. 1980), this position was reaffirmed by that Court. 

See also Glum v. INS, 597 F.2d 168, 170 (9 Cir. 1979). In INS v. Wang, 

101 S. Gt. 1087, 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. 

Sea 8 C.F.R. 3.2 and 3.8. The Supreme Court stated that these regulations do not affirmatively require reopening under any particular conditions and that they "may be construed to provide the Board with discretion in determining under what circumstances a proceeding should be 

reopened." Circuit Judge Wallace's dissent in Villena v. INS, supra, 

regarding this issue was cited with apparent approval. With all deference to the Ninth Circuit's doubts concerning the authority of this Board 

to deny a motion to reopen a proceeding in the exercise of discretion, we 

find that the Board has such authority. 

A predecessor regulation to 8 C.F.R. 3.2 and 3.8, specifically provided that the grant or denial of a motion to reopen .was solely within the 

discretion of the Board. See Arakas v. Zimmerman, 200 F. 2d 322, 323 

n. 2 (3 Cix. 1952); Kavddias v. Cross, 82 F. Supp. 716, 719-20 (N. D. hid. 

1948). We do not find the absence of such specific. authorization in the 

present regulation controlling as decisions regarding the reopening of 

proceedings have traditionally been considered actions within the sound 

discretion of administrative authorities. United States v. Pierce Auto 

Freight Lines, 327 U.S. 515, 535 (1946); Interstate Commerce Commission. v. Jersey City, 322 U.S. 503, 514-15 (1944). See also Wolf v. Boyd, 

238 F.2d 249, 254 (9 Cir. 1957), cert. denied, 353 U.S. 936 (1957). 

Moreover, the controlling regulations (8 C.F.R. 3.2 and 3.8) merely set 

forth minimum requirements which if not satisfied preclude the Board 

from granting reopening. It is provided that the Board "may" grant 

'reopening in specified circumstances. 

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). 8Most recently, the United 

a This moarek discretionary authority to deny motions to reopen to apply for adjustment of status under section 245 of the Act, 8 U.S.C. 1255, has been affirmed by the Ninth 

Circuit in Obits v. INS, 623 F.2d 1331 (9 Cir. 1980). Although disagreeing with Circuit 

Judge Tang's ultimate conclusion in his dissent in ,Obitc. we must admit to sharing his 

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States Court of Appeals for the Sixth Circuit has recognized the Board's 

authority in this regard. See Balani v. INS, 669 F.2d 1157, 1161-626 

Cir. 1982). The Ninth Circuit has in fact affirmed a recent discretionary 

denial by this Board of a suspension motion after finding the Supreme 

Court's decision in, Wang controlling on the issue of whether such action 

was authorized. 

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 reopeningbased 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 he served by ordering these 

questions concerning the distinction set forth in the majority opinion between motions to 

reopen to apply for suspension and those regarding adjustment applications. 

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long delayed proceedings reopened. Accordingly, the appeal will again 

be dismissed. 

ORDER On reconsideration, the appeal is dismissed. 

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