Interim Decision #2136 

MATTER OF LAM 

In Deportation Proceedings 

A-15639821 

Decided by Board March 23, 1972 

Apart from an alien's failure to establish prima facie the extreme hardship 

required to qualify for suspension of deportation, where, as in the instant 

case, he managed to stave off deportation and accrue the minimum statutory 

period of physical presence only by resort to dilatory procedures (including a 

petition for review denied for 'eel( of prosecution), in the absence of compelling 

circumstances to counterbalance such an adverse factor denial of his motion 

to reopen to apply for suspension of deportation is warranted purely as a 

matter of discretion. 

CHARGES: 

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

inspection. 

Lodged: Act of 1952—Section 241(ax1) 18 U.S.C. 1251(a)(1)I—Excludably at time 

of entry—nonimmigrant, not in possession of valid 

nonimmigrant visa or border crossing identification 

card and not exempted from the possession thereof, as 

described in section 212(a)(26) [8 U.S.C. 1182(a)(26)]. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Samuel D. Myers, Esquire Olga M. Springer 

134 North La Salle Street, Suite 1616 Trial Attorney 

Chicago, Illinois 60602 (Brief filed) 

In a decision dated April 10, 1968, a special inquiry officer found 

the respondent deportable on the charge in the order to show 

cause and on the lodged charge, granted him voluntary departure 

and ordered deportation if he should fail to depart. The Board 

dismissed his appeal on June 5, 1968. Respondent's motion to 

reopen to apply for adjustment of status under section 245 of the 

Immigration and Nationality Act was denied by the Board on July 

23, 1968. A petition for review was filed in the United States Court 

of Appeals for the Seventh Circuit and was dismissed on January 

30, 1969 for want of prosecution. On August 26, 1970, the Board 

denied the respondent's motion to reopen the deportation proceed98 
Interim Decision #2136 

ing so that an application for suspension might be filed under 

section 244(aX1) of the Act. 

Another petition for review was filed in the United States Court 

of Appeals for the Seventh Circuit, largely challenging the merits 

of the April 10, 1968 determination of deportability. In dismissing 

the petition for review on October 7, 1971, the court held that 

review of the merits of the April 10, 1968 order is barred by the 

lapse of time; and that the Board's action on August 26, 1970 

denying the motion to reopen was discretionary. The court found 

no abuse of discretion. This matter is now before us again on 

motion to reopen to permit the respondent to apply for suspension 

of deportation. The present motion will be denied. 

To be eligible for suspension of deportation under section 

244(a)(1) of the Act, the respondent must establish; (1) physical 

presence in the United States for a continuous period of not less 

than seven years preceding the date of application; (2) good moral 

character during all such period; and (3) extreme hardship to the 

alien or other specified family members which would result from 

the alien's deportation. The regulations require that a motion to 

reopen shall state the new facts to be proved at the reopened 

hearing and shall be supported by affidavits or other evidentiary 

material. 

In support of the claim of hardship made in this motion, 

respondent submitted an affidavit which states a number of 

conclusions, none of which is supported by evidence or states the 

facts upon which it is based. The affidavit states that he would be 

unable to support himself in Hong Kong; that he would be unable 

to obtain a job; that he might starve to death; that he fears the 

communists in Hong Kong; and that he would become physically 

and emotionally ill if he had to leave the United States. All 

statements are conclusions, purely conjectural and not supported 

by any facts or evidence. In substance, what respondent alleges is 

tantamount to economic hardship if he is returned to Hong Kong. 

Economic detriment without more, however, is not enough to 

establish the hardship contemplated to qualify for the relief of 

suspension of deportation, :ittsravi, v. INS, 400 F.2d 675 (9 Cir., 

1968); .-Cwang Shick Myung v. INS, 368 F.2d 330 (7 Cir., 1966). 

Respondent contends that a denial of this motion would be a 

denial of due process, a prejudgment without a complete hearing 

depriving the respondent of a chance to be heard, and would make 

the respondent suffer from the possible omissions of prior counsel. 

These contentions ignore the sequence of events which have 

transpired since April 10, 1968, when he was found deportable and 

granted the privilege of voluntary departure. The evidence in the 

record establishes that the respondent has not been denied due 

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Interim Decision #2136 

process, that he has had ample opportunity to present his case 

before administrative and judicial tribunals, and that he has in 

fact taken advantage of these opportunities. The motion and 

affidavit presented do not state new facts which would establish, 

prima facie, the extreme hardship required to make respondent 

eligible for suspension of deportation under section 244(a)(1) of the 

Act. Respondent has not met the clear requirements for reopening 

set forth in the regulations. Reopening is not to be had for the 

mere asking. Due process does not require reopening for a plenary 

hearing when a prima facie case of eligibility for the relief sought 

has not been established. 

Moreover, quite apart from respondent's failure to make out a 

prima facie case, there is another compelling reason to deny the 

motion as a matter of discretion. Respondent entered without 

inspection on February 1, 1963. He has managed to eke out the 

minimum period of seven years' physical presence only by resorting to dilatory procedures. One flagrant example among many will 

suffice: On September 4, 1968, long before the seven-year period 

had accrued, he filed a petition for review under section 106(a) of 

the Act, challenging the deportation order then outstanding, 

Cheuk Jor Lam. v. INS, C.A. '7, No. 17142. Pursuant to section 106 

(a)(3) of the Act, deportation was automatically stayed. He failed to 

prosecute the action, and on January 30, 1969 the court dismissed 

it for lack of prosecution. 

Where, as here, an alien manages to stave off deportation and 

accrue the minimum statutory period of physical presence only by 

resort to such obviously dilatory tactics, in the absence of other 

compelling circumstances sufficient to counterbalance such an 

adverse factor we are warranted in denying a motion to reopen 

purely as a matter of discretion. 

ORDER: It is ordered that the motion be and the same is 

hereby denied. 

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