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, 19 I&N Dec. 875 (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) [8 U.S.C. § 1251(a)(13)]—Smuggling for gain 

Lodged: Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(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, 19 I&N Dec. 875 (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. 

8 C.F.R. § 3.8(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, 20 I&N Dec. 

216 (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 inferencedrawing 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, 8 U.S.C. § 1251(a)(13) (1988). Id. at 876-79. 

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 coconspirator 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 aliensmuggling ground of deportability. See the Immigration Act of 1990, Pub. L. No. 101-

649, § 602(a) , 104 Stat. 4978, 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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