Interim Decision #2973 

MATTER OF CORREA 

In Deportation Proceedings 

A-21053630 

Decided by Board July 31, 1984 

(1) Although an immigration judge's decision. granting a motion to reopen deportation proceedings is an interlocutory order, the Board of Immigration Appeals will 

entertain an appeal from that decision where a pattern of improper handling of 

motions by the immigration judge has developed. 

(2) Where a motion to reopen deportation proceedings is opposed by either party, 

the immigration judge in ruling on the motion must state in writing the reasons 

for his decision; therefore, an immigration judge's use of Form 1-328 (Order on 

Motion to Reopen Proceedings) to grant an opposed motion and his failure to provide an analysis of his reasons for granting the motion were inappropriate. 

(3) In determining whether extreme hardship has been established for suspension of 

deportation purposes, equities which are acquired after a final order of deportation. has been issued against an alien are entitled to less weight than those acquired before an alien has been found deportable. 

CHARGE; 

Order: Act of 1952—Sec. 241(aX2) [18 ILS.C. § 1251(aX2)l—Noninamigrant—remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Joseph F. O'Neil, Esquire Cornelius T. Cashman 

120 Lincoln Street General Attorney 

Boston, Massachusetts 02111 

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

The Immigration and Naturalization Service has appealed from 

the immigration judge's November 8, 1983, decision granting the 

respondent's motion to reopen his deportation proceedings. The 

appeal will be sustained. 

An immigration judge's grant of a motion to reopen is an interlocutory order. Matter of Ku, 15 T&T/ Dec. 712 (BIA 1976). In order 

to avoid piecemeal review of cases, this Board does not ordinarily 

entertain interlocutory appeals. Matter of Ruiz-Campuzano, 17 I&N 

Dec. 108 (BIA 1979); Matter of Ku, supra; Matter of Sacco, 15 I&N 

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Dec. 109 (31A 1974). However, we have on occasion accepted jurisdiction over such appeals where important questions regarding the 

administration of the immigration laws and the authority of immigration judges have been raised. Matter of Victorino, 18 I&N Dec. 

259 (BIA 1982); Matter of Alphonse, 18 I&N Dec. 178 (BIA 1981); 

Matter of Wadas, 17 I&N Dec. 346 (BIA 1980); Matter of Seren, 15 

I&N Dec. 590 (BIA 1976); Matter of Fong, 14 I&N Dec. 670 (BIA 

1974). The present case is one of a number of cases where we have 

noted improper handling of motions by the immigration judge. We 

have concluded that this continuing problem. is significant enough 

to warrant our entertaining this interlocutory appeal in order to 

resolve the matter. 

The respondent is a 34-year-old native and citizen of Colombia. 

He was last admitted to the United States on January 18, 1975, authorized to remain in this country for not over 6 months. On 

August 19, 1975, an Order to Show Cause, Notice of Hearing, and 

Warrant for Arrest of Alien (Form I-221 S) was issued against him, 

charging him with deportability as an overstay. He was found deportable on August 25, 1975, based on his own admissions, and was 

granted voluntary departure to October 1, 1975. The respondent did 

not depart as required but instead absconded. In 1982, the respondent filed a motion to reopen in conjunction with an application for 

suspension of deportation. This motion was forwarded by the immigration judge to the Service's acting chief legal officer on February 

25, 1983. The Service opposed the motion by filing, on March 9, 

1983, a printed notice of opposition together with a memorandum 

in opposition to the motion. The Service opposed reopening on the 

ground that the respondent had failed to make out a prima facie 

case of extreme hardship for suspension purposes. The Service also 

argued that reopening to apply for suspension was not warranted 

where the requisite 7 years' continuous physical presence was accumulated by evading deportation. 

In response, counsel for the respondent filed a seven-page memorandum rebutting the Service's opposition. In this memorandum, 

counsel argued that the respondent's marriage and the births of his 

two United States citizen children constitute the new and previously unavailable evidence required for reopening. He also argued that 

a prima facie case of extreme hardship to the respondent and to his 

children had been made. He contended that the fact that the respondent's wife is the beneficiary of a fifth-preference visa petition 

filed by her United States citizen sister is an important equity that 

sets the respondent's case apart from those -where suspension appli- 
Interim Decision #2973 

cants have no "immediate relatives" in the United States. I While 

admitting that the respondent's immigration history is not "without blemish," counsel argues that that history should not be considered an adverse factor in view of the respondent's "pattern of respectful cooperation with the Immigration Service" over the last 3 

years. 

On November 8, 1983, the immigration judge granted the respondent's motion to reopen by executing a Form 1-328 (Order on 

Motion to Reopen Proceedings). The immigration judge crossed out 

the "no" in the phrase "[t]here being no opposition to the motion" 

printed on the Form 1-328. 

On appeal, the Service argues that the use of the Form I-328 was 

inappropriate in light of its written opposition to the motion. Without a written decision, the Service asserts, it is impossible to ascertain the rationale of the immigration judge in granting the motion. 

The Service argues that under our decision in Matter of Dczryoush, 

18 I&N Dec. 352 (BIA 1982), the immigration judge is required to 

state, in writing, the reasons for his decision. 

The use of Form 1-328 is provided for in 8 C.F.R. § 242.22 (1984), 

which states that "[a]n order by the immigration judge granting a 

motion to reopen may be made on Form 1-328." The regulation 

thus does not specifically limit use of the form to unopposed motions. However, the form itself is worded in such a way that, at 

least when unaccompanied by a written memorandum, its use must 

logically be limited to unopposed motions. The body of the Form I328 states, in its entirety: 

UPON READING AND CONSIDERING respondent's motion to reopen deportation proceedings; and 

There being no opposition to the motion 

IT IS ORDERED that deportation proceedings be REOPENED. 

We agree with the Service that the immigration judge's use of this 

form to grant an opposed motion by crossing out the word "no," 

and his failure to provide any analysis of his reasons for granting 

the motion, were entirely inappropriate. As the Service has pointed 

out, in Matter of Daryoush, supra, we held that a district director 

must state in writing the reasons for his decisions with regard to 

custody, even though the regulations do not specifically state such 

a requirement. Similarly, we now hold that where a motion 'to 

1We note that while counsel consistently referred to the respondent's wife's sister 

as an immediate relative, she does not satisfy the statutory definition of immediate 

relative even as to the respondent's wife. See section 201(b) of the Immigration and 

Nationality Act, 8 U.S.C. § 1151(b) (1982). The respondent's relationship to his sisterin-law would not give rise to any benefits under the immigration laws. 

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reopen deportation proceedings opposed by either party, the immigration judge, in ruling on the motion, must state in writing, however briefly, the reasons for his decision. Such a requirement will 

help insure that the immigration judge, in ruling on motions, fully 

considers whether a prima fade case has been made, and whether 

the regulatory requirements for motions have been satisfied. 

Counsel for the respondent has argued that the immigration 

judge should not "be subjected to scrutiny of his mental processes 

in arriving at a decision" and contends that if Congress wished to 

require "such a detailed explanation as the Immigration Service 

suggests," it would have so stated in the statute. We do not by 

today's holding suggest either that an immigration judge's "mental 

processes" must be carefully scrutinized, or that the immigration 

judge must give a "detailed explanation" for his decision on a 

motion. We are requiring only that where motions have been opposed, he provide some rationale for his ruling on the motion. Immigration judges have wide authority and discretion in disposing of 

cases before them, but that authority is not unfettered- they are required to comply with the applicable law and regulations. With 

regard to motions, this requires, among other things, that the immigration judge reasonably find that a prima facie showing of eligibility for the relief sought has been made. 

This case in fact presents a good example of the necessity of requiring the immigration judge to state the reasons for his decision, 

since our review of the record has convinced us that the respondent's motion was inappropriately granted by the immigration 

judge. In order to warrant reopening to apply for suspension of deportation, the respondent must make a prima facie showing that 

he satisfies all the requirements of section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(A)(1) (1982). INS v. Wang, 

450 U.S. 139 (1981). Thus, the respondent must make, inter alia, a 

prima facie showing that he or his United States citizen or lawful 

permanent resident spouse, parent, or child will suffer extreme 

hardship if he is deported. See Moore v. INS, 715 F.2d 13 (1st Cir. 

1983); Israel v. INS, 710 F.2d 601 (9th Cir. 1983); Diaz-Salazar v. 

INS, 700 F.2d 1156 (7th Cir. 1983), cert. denied, 462 U.S. 1132 (1988); 

Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of Lam, 14 

I&N Dec. 98 (BIA 1972). Such a showing has not been made in this 

case. 

The respondent supplemented his Application for Suspension of 

Deportation (Form I-256A) with affidavits attesting to his good 

character, with police reports reflecting no derogatory information 

about the respondent, with copies of income tax returns and pay 

receipts, and with the birth certificates of his two children, born 

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January 6, 1978, and May 28, 1981. The respondent also submitted 

his own affidavit, in which he stated that he has adjusted completely to life in the United States and has severed ties with his friends 

in Colombia. He asserted that his older child would suffer hardship 

if he leaves him, because the child is dependent upon him financially and psychologically. He also stated that both children will 

suffer hardship if they accompany him to Colombia. He stated in 

this regard that "diseases run rampant in Colombia" and that 

many children there die from simple childhood diseases because 

they do not get innoculated. The affidavit further states that he 

would fear for his life in Colombia because the government there 

engages in violent, unexplained activities against the people. The 

respondent asserted that he would have no job in Colombia and 

would be forced to seek refuge with his family, which would be degrading. 

The evidence presented by the respondent in support of his suspension application does not constitute a prima facie case of extreme hardship. It is well settled that the birth of children in the 

United States by itself does not constitute a prima facie case of extreme hardship. See Israel v. INS, supra; Diaz-Salazar v. INS, 

supra; see also Bueno-Carillo v. Landon, 682 F.2d 143 (7th Cir. 

1982); Bakuti v. INS, 669 F.2d 1157 (6th Cir. 1982); Ayula-Flores v. 

INS, 662 F2d 444 (6th Cir. 1981); Banks v. INS, 594 F.2d 760 (9th 

Cir. 1979); Davidson v. INS, 558 F.2d 1361 (9th Cir. 1977); Matter of 

Kim, 15 I&N Dec. 88 (131A 1974). The fact that the medical facilities 

in Colombia may not be as good as they are in this country does 

not mean that his children, should they go with him to Colombia, 

will suffer extreme hardship there. We note that much of the respondent's concern with regard to his children related to the lack 

of immunizations in Colombia and the resultant rampant childhood 

diseases. Most of these immunizations are given in the United 

States very early in life (the respondent's children's birth certificates suggest a schedule of immunizations which reflects that most 

should be given by the age of 18 months). The respondent's children may have had these immiTniqations and presumably could 

still get them if they have not. The respondent's children are still 

very young and should have little difficulty in adjusting to life in 

Colombia, should they accompany their father there. 

We also note that while the births of the respondent's children in 

this country constitute equities, equities which are acquired after a 

final order of deportation has been issued against an alien are entitled to less weight than those acquired before an alien has been 

found deportable. See Carnally Munoz v. INS, 627 F.2d 1004, 1007 

(9th Cir. 1980); Faddah v. INS, 553 F.2d 491, 496 (5th Cir. 1977). 

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The respondent's children were born well after he was found deportable. 

We also think it appropriate to consider the fact that the respondent absconded from the immigration authorities and acquired 

the physical presence required for suspension by evading the immigration laws. See, e.g, Men Keng Chang v. thugni, 669 F.2d 275 (5th 

Cir. 1982). That the respondent has more recently cooperated with 

the Service does not negate the fact that he has previously flouted 

our immigration laws. 

The respondent is still young and able to work. He has not 

shown that he would totally unable to find any employment in Colombia. Nor has he substantiated in any way his claims that violence in Colombia is so endemic that his life would be in danger 

there. The respondent's assertions that he adjusted completely to 

life in the United States are likely to be made by any alien who 

has spent a number of years in this country. The respondent still 

has family in Colombia, and while he may not want to be dependent upon them, they are likely to be able to help ease his transition 

to life in his homeland, if not financially, then at least emotionally. 

In sum, the respondent has not made a prima facie case that he or 

his children will suffer extreme hanichip if he is deported. Reopening of the proceedings was therefore not warranted. The appeal 

from the immigration judge's grant of the motion to reopen will accordingly be sustained, the immigration judge's order granting the 

motion will be vacated, and the motion to reopen will be denied. 

ORDER: The appeal is sustained, the immigration judge's 

order granting the motion to reopen is vacated, and the motion is 

denied. 

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