* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 16, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60385

Summary Calendar

 

MANUELA GONZALEZ-DE VIEZCA; FELIX VIEZCA-SALAZAR; FELIX 

VIEZCA-GONZALEZ; MELISSA VIEZCA-GONZALEZ,

Petitioners,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A74 375 385

A74 374 998

A74 375 387

A74 375 389

--------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

Petitioners Manuela Gonzalez-De Viezca (“Manuela”), Felix

Viezca-Salazar (“Felix”), and their two minor children petition

this court for review of the Board of Immigration Appeal’s (“BIA”)

summary affirmance of the immigration judge’s (“IJ”) denial of

their requests for suspension of deportation. The BIA made the

IJ’s decision the final agency determination, so we review the IJ’s
2

findings and conclusions. See Efe v. Ashcroft, 293 F.3d 899, 903

(5th Cir. 2002). 

Manuela and the children argue that the IJ erred in concluding

that they had not established eligibility for deportation because

they had failed to establish the required seven years of continuous

physical presence in the United States. Manuela first argues that

her admission of the facts alleged in the order to show cause,

particularly the alleged date of entry, conclusively establishes

those facts. We are unpersuaded by her arguments, and we also note

that the order to show cause alleged only that she and the children

had entered the United States “on or about” a specified date. We

conclude that this admission did not establish the actual date she

and the children entered the United States.

Manuela next argues that her own testimony was sufficient to

establish the date of entry and that the IJ erred by discounting

her testimony because it was “self-serving.” The BIA has held that

an alien’s testimony should not be disregarded simply because it is

“self-serving.” See, e.g., Matter of S-A-, 22 I. & N. Dec. 1328,

1332 (2000) (citing cases). The BIA also has held, however: “We

not only encourage, but require the introduction of corroborative

testimonial and documentary evidence, where available.” Id. The

alien bears the burden of demonstrating eligibility for suspension

of deportation. See Hernandez-Cordero v. INS, 819 F.2d 558, 560

(5th Cir. 1987) (en banc). Our review of the record suggests that,

contrary to Manuela’s assertion, the IJ was more concerned with the
3

lack of corroborating evidence than with the “self-serving” nature

of her testimony. Manuela has not shown that the evidence in the

record compels the contrary conclusion that she established the

required seven years of continuous presence. See Carbajal-Gonzalez

v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (under “substantial

evidence” standard, findings will be affirmed unless the “evidence

compels a contrary conclusion”).

As the rest of the family was ineligible for suspension of

deportation, the IJ concluded that Felix could not establish that

he would suffer “extreme hardship” if he too were denied suspension

of deportation. We lack jurisdiction to review this conclusion.

See Moosa v. INS, 171 F.3d 994, 1012-13 (5th Cir. 1999) (denials of

suspension based on the “extreme hardship” element are

discretionary decisions not subject to review).

All members of the family challenge the BIA’s summary

affirmance of the IJ’s decision, using the “streamlining”

provisions now found at 8 C.F.R. § 1003.1(e)(4)(i). We have held

that the use of the summary affirmance procedures does not raise

the inference that the BIA did not conduct the required review.

See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003). In

addition, summary affirmance without opinion is not permitted to

include a discussion of the IJ’s reasoning or a discussion of the

arguments raised on appeal. See 8 C.F.R. § 1003.1(e)(4)(ii)

(stating that an affirmance without opinion “does not necessarily

imply approval of all of the reasoning of” the decision below and
4

that Board members are prohibited from including their own

explanation or reasoning in the order). 

The petition for review includes requests for costs and

attorney’s fees pursuant to the Equal Access to Justice Act (EAJA).

See 28 U.S.C. § 2412 (EAJA). An application for attorney’s fees

under the EAJA must be accompanied by proof that the applicant has

prevailed. See 5TH CIR. R. 47.8.2(a). As we deny the petition for

review, the petitioners do not qualify for an award of attorney’s

fees.

PETITION FOR REVIEW DENIED; REQUEST FOR COSTS AND FEES DENIED.