Interim Decision #3182 

MATTER OF R-RIn Deportation Proceedings 

A-29318907 

Decided by Board June 2, 1992 

(I) An alien seeking reopening of proceedings based on his failure to request asylum 

before the completion of deportation proceedings must meet the general motion 

requirements, as well as reasonably explain the failure to timely file an asylum 

application. 

(2) The Board of Immigration Appeals withdraws from Matter ofI ean, 17 I&N Dec. 100 

(BIA 1979), to the extent that it suggests that an alien who has failed to timely file an 

application for asylum need only demonstrate excusable neglect for the failure to file 

in order to obtain the reopening of proceedings. Matter of Jean, supra, modified. 

(3) The respondent failed to demonstrate prima facie eligibility for asylum based on his 

refusal to serve in the Nicaraguan military. 

(4) The Board takes administrative notice that the Sandinista Party no longer controls 

the Nicaraguan Government. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)1—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Christopher J. Montgomery, Esquire Benjamin D. Somera 

5601 Irvington Boulevard General Attorney 

Houston, Texas 77009 

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

In a decision dated January 9, 1990, an immigration judge found 

the respondent deportable as charged under section 241(a)(2) of the 

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988),' as an 

alien who entered without inspection, found that he had failed to file 

an application for asylum by the date set, and granted him the relief of 

This ground of deportation has been revised and redesignated as section 241(a)(1)(B) 

of the Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. II 1990), by section 602(a) of the 

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5078, but that 

amendment does not apply to deportation proceedings for which notice has been 

provided to the alien before March 1, 1991. See section 602(d) of the Immigration Act of 

1990, 104 Stat. at 5082. 

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Interim Decision #3182 

voluntary departure. The respondent, through counsel, filed two 

motions to reopen with the immigration judge. The respondent has 

appealed from the denial of the second motion to reopen. The appeal 

will be dismissed. 

The respondent is a 25-year-old native and citizen of Nicaragua who 

entered the United States without inspection on February 19, 1989. 

Following the commencement of deportation proceedings, attorneys 

for the Immigration and Naturalization Service and the respondent 

entered into a prehearing agreement on November 2, 1989, in which 

the respondent conceded deportability and the Service indicated its 

nonopposition to a grant of the relief of voluntary departure. The 

deadline for filing an application for asylum was set for January 5, 

1990. On January 9, 1990, the immigration judge entered an order 

finding the asylum application abandoned and granting voluntary 

departure. On February 14, 1990, the respondent filed a motion to 

reopen. The immigration judge denied the motion on February 20, 

1990. The respondent filed a second motion to reopen on April 26, 

1990. Counsel for the Service opposed the second motion. The 

immigration judge denied the second motion on June 29, 1990, giving 

rise to the instant appeal. 

In the initial motion to reopen, counsel admitted that he erroneously filed the asylum application with the district director on November 

22, 1989. He alleged that he did not become aware of his error until 

after January 5, 1990. In support of the motion, the respondent 

submitted the asylum application, a Biographic Information form 

(Form G-325A), his birth certificate with translation, an application 

for employment authorization, and a fingerprint chart. The immigration judge denied the motion based on the respondent's failure to 

accompany the motion with a certificate of service to the opposing 

party. The immigration judge further noted that the respondent 

probably failed to demonstrate prima facie eligibility for the relief 

sought. 

In the second motion to reopen, the respondent alleged that he had 

in fact served the first motion on opposing counsel. In support of the 

motion, he submitted a cony of the signed return receipt acknowledging service dated February 22, 1990. The immigration judge denied 

the second motion based on the respondent's failure to resubmit a 

copy of the asylum application with the motion, and on the grounds 

that the Nicaraguan Government had abolished the military draft, 

which was the basis for the respondent's asylum application. 

On appeal, counsel contends that the procedural errors he committed were a result of his inexperience in inunigiation kw. He contends 

that the respondent should not be denied an opportunity to present his 

application for asylum because of counsel's inadvertent errors. He 

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Interim Decision #3182 

further notes that his errors could have easily been corrected had the 

immigration judge notified him before denying the motions. 

The Service has not filed a brief on appeal. 

Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988), requires that 

an alien receive a reasonable opportunity to be present at his or her 

deportation hearing. We have held that a hearing in absentia is 

appropriate where the alien had notice of his hearing, had an 

opportunity to attend, and showed no reasonable cause for his failure 

to appear. Matter of Patel, 19 I&N Dec. 260 (BIA 1985), affd, 803 

F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 I&N Dec. 775 (BIA 

1971); see also Matter of Haim, 19 I&N Dec. 641 (BIA 1988). 

Where an alien can demonstrate reasonable cause for his failure to 

appear, section 242(b) of the Act guarantees his right to a hearing. For 

that reason, this Board has found that a prima facie showing of 

eligibility for relief from deportation or exclusion is not a prerequisite 

to reopening proceedings following an in absentia hearing. See Matter 

of Ruiz, 20 I&N Dec. 91 (BIA 1989). 

Where an immigration judge has set a deadline for filing an 

application for relief, however, the respondent has already in fact 

appeared at a hearing. His statutory right to be present has been 

fulfilled. Furthermore, 8 C.F.R. § 3.29 (1992) provides that if an 

application is not filed within the time set by the immigration judge, 

the opportunity shall be deemed waived. The Board has long held that 

applications for benefits under the Act are properly denied as 

abandoned when the alien fails to timely file them. See Matter of Jean, 

17 I&N Dec. 100 (BIA 1979) (asylum); Matter of .Taliawala, 14 I&N 

Dec. 664 (BIA 1974) (adjustment of status); Matter of Pearson, 13 I&N 

Dec. 152 (BIA 1969) (visa petition); see also Matter of Nak 19 I&N 

Dec. 430 (BIA 1987) (exclusion proceedings). 

This Board previously addressed the issue of untimely filed asylum 

applications in Matter of Jean, supra. In that decision, we held that an 

alien seeking reopening of deportation proceedings in order to file an 

application for asylum must demonstrate excusable neglect for the 

failure to timely file. Id. at 103. Our holding was based on then existing 

regulations, which provided in pertinent part as follows: "Notwithstanding the provisions of §§ 103.5 and 242.22 of this chapter, a 

request for asylum may be considered as a motion to reopen under this 

paragraph and accepted for filing provided it reasonably explains the 

failure to assert the asylum claim prior to completion of the 

deportation hearing." 44 Fed. Reg. 21,253, 21,259 (1979) (codified at 

8 C.F.R. § 108.3(6) (1980)). 

Under the regulations then in effect, therefore, an alien could move 

to reopen his deportation proceedings to apply for asylum without 

meeting the motion requirements of 8 C.F.R. §§ 103.5 and 242.22 

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Interim Decision #3182 

(1979). Following passage of the Refugee Act of 1980, Pub. L. No. 96-

212, 94 Stat. 102, however, Part 208 of the regulations was implemented, and Part 108 was subsequently removed. See 8 C.F.R. §§ 208.1-

.16 (1981). The new regulations provided that an alien could request 

reopening for the purpose of filing an asylum application "pursuant to 

8 CFR 103.5 or 8 CFR 242.22." 8 C.F.R. § 208.11 (1981). In addition 

to those requirements, the alien had to reasonably explain his failure to 

timely request asylum. Id. That requirement is now codified as follows: 

"Any motion to reopen or remand accompanied by an initial 

application for asylum filed under paragraph (b) of this section must 

reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding." 8 C.F.R. 

§ 208.4(c)(4) (1992). 

Thus, the current regulations make clear that a person seeking 

reopening based on his failure to request asylum before the completion 

of deportation proceedings must meet the general motion requirements, as well as reasonably explain the failure to file previously for 

asylum. To the extent that Matter of Jean, supra, suggests that an alien 

who has missed a filing deadline need only demonstrate excusable 

neglect for the failure to timely file, we hereby withdraw from that 

decision. 

We will accordingly discuss the general motion requirements as 

applicable to the respondent's motion to reopen. A motion to reopen 

shall not be granted unless the respondent demonstrates that the 

evidence he offers is material and was not available or could not have 

been discovered or presented previously. 8 C.F.R. §§ 3.2, 242.22 

(1992); INS v. Jong Ha Wang, 450 U.S. 139 (1981) (per curiam). A 

motion must also state the new facts to be proved at reopening, 

supported by affidavits or other documentary evidence. 8 C.F.R. 

§§ 3.8(a), 103.5(a)(2) (1992). An alien must make a prima facie 

showing both that he is statutorily eligible for the relief sought and that 

he warrants relief in the exercise of discretion. See, e.g., INS v. Abudu, 

485 U.S. 94 (1988); Bahramnia v. United States INS, 782 F.2d 1243 

(5th Cir.), cert. denied, 479 U.S. 30 (1986); Matter of Leon-Orosco and 

Rodriguez -Colas, 19 I&N Dec. 136 (BIA 1983; A.G. 1984). Finally, an 

alien seeking reopening of deportation proceedings in order to apply 

for asylum must reasonably explain his failure to request that relief 

prior to the completion of proceedings. 8 C.F.R. § 208.4(c)(4) (1992); 

see also 8 C.F.R. §§ 3.2, 242.22 (1992). 

Inasmuch as the respondent is required to establish prima facie 

eligibility for asylum in order to reopen the proceedings, we will 

examine his persecution claim. The respondent asserts that he has a 

well-founded fear of persecution based on his refusal to serve in the 

Nicaraguan military. He states that Sandinista soldiers came to his 

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Interim Decision #3I82 

mother's home in 1988 looking for him and that a soldier struck him 

on the head with a rifle butt. 

A government does not engage in persecution when it requires that 

its citizens perform military service. Umanzor-Alvarado v. INS, 896 

F.2d 14 (1st Cir. 1990); Rodriguez-Rivera v. INS, 848 F.2d 998 (9th 

Cir. 1988); Kaveh-Haghigy v. INS, 783 F.2d 1321 (9th Cir. 1986); see 

also Matter of Vigil, 19 I&N Dec. 572 (BIA 1988). Persecution for 

failure to serve in the military may occur in rare cases where a 

disproportionately severe punishment would result on account of one 

of the five grounds enumerated in section 101(a)(42)(A) of the Act, 8 

U.S.C. § 1101(a)(42)(A) (1988), or where the alien would necessarily 

be required to engage in inhuman conduct (that is, conduct condemned by the international community as contrary to the basic rules 

of human conduct) as a result of military service required by the 

government. See Matter of A-G-, 19 I&N Dec. 502 (BIA 1987), affd 

sub nom. M.A. v. INS, 899 F.2d 304 (4th Cir. 1990) (en bane). 

The respondent has made no allegations that disproportionately 

severe punishment would result on account of his political opinion or 

any other prohibited ground, nor has he demonstrated that he would 

be required to engage in inhuman conduct as a result of military 

service. 

Moreover, we take administrative notice that the Sandinista Party 

no longer controls the Nicaraguan Government. Effective April 25, 

1990, a coalition government, formed by parties in opposition to the 

Sandinistas ("UNO"), succeeded the former government of the 

Sandinista Party, following national elections and the inauguration of 

Violeta Claamorro as president. Further, President Chamorro announced a general amnesty covering the hostilities between the former 

Contra resistance and the Nicaraguan Government and an end to 

military conscription. 2 

Given that the Nicaraguan Government has halted military conscription, on the record before us we do not find any basis for the 

respondent's claim that he has a well-founded fear of persecution in 

Nicaragua) 

2See, e.g., Chantorro takes Nicaraguan Helm; Hails New Era, New York Times, Apr. 

26, 1990, at Al (Violeta Chamorro's inaugural address). 

3It is well established that administrative agencies and the courts may take judicial (or 

administrative) notice of commonly known facts. See Ohio Bell Telephone Co. v. Public 

Utilities Commission, 301 U.S. 292 (1937). Therefore, this Board may properly take 

administrative notice of changes in foreign governments. Wojcik v. INS, 951 F.2d 172 

(8th Or. 1991); Janustak v. INS, 947 F.2d 46 (3d Cir. 1991); Kapcia v. INS, 944 F.2d 

702 (10th Cir. 1991); Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.), cert. denied, 502 U.S. 

981 (1991); Kuban v. INS, 913 F.2d 386 (7th Cir. 1990); see also, e.g., Matter of Chen, 20 

I&N Dec. 16 (BIA 1989); Matter of Stojkovic, 10 I&N Dec. 281 (BIA 1963). 

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Interim Decision #3182 

We conclude, therefore, that the respondent has failed to make a 

prima facie showing that he has a well-founded fear of persecution on 

account of one of the five grounds enumerated in section 208(a) of the 

Act. See section 101(a)(42)(A) of the Act; 8 C.F.R. § 208.13(b)(2) 

(1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Guevara Flores 

v. INS, 786 F.2d 1242 (5th Cir. 1986); Matter of Chen, 20 I&N Dec. 16 

(BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). 

Inasmuch as the respondent has failed to satisfy the lower burden of 

proof required for asylum, it follows that he has also failed to make a 

prima facie showing that he faces a clear probability of persecution in 

Nicaragua. See INS v. Stevie, 467 U.S. 407 (1984). We therefore 

conclude that the immigration judge properly denied the respondent's 

motions based on his failure to demonstrate prima facie eligibility for 

the relief sought. 

On appeal, the respondent has objected to the denial of the motions 

to reopen on procedural grounds. We need not address those 

contentions, inasmuch as we have found that the motions were 

properly denied based on the respondent's failure to demonstrate 

prima facie eligibility for relief. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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