Interim Decision #2309 

MATTER OF RESTUBOG 

• In Deportation Proceedings 

A-17£22299 

Decided by 4ogrd December 21, 1978 

Under the concepts of 'judicata, a motion to reopen for possible termination of 

deportation proceedings must 'be denied where the motion was filed subsequent to a 

Court of Appeals review sustaining a finding of deportability and ordering a remand of 

the case for the sole purpose. of permitting respondent to designate the country to which 

she Is to be deported, and the evidence underlying the motion accrued prior to the court 

order. 

CHARGE: 

Order: Act of 

ON BEHALF OF 

1962—Section 241(a)(8) [8 U.S.C. 1261(e)(2)}—Nonimmigrant troncit 

• - ' remained longer than permitted. ' 

RESPONDENT: Dan P. Danilov,•Esquire 

, • 3828 Seattle First National Bank 

(Spittle, Washington 08164 , 

This case is before us on remand frem the United States Court of 

Appeals for the Ninth Circuit for entry of ,an appropriate order, in 

pursuance 'of the procedure we suggested in Matter of Abellana and 

Donovan, 14 I. & N. Dec.' 262.(BIA 1973). 

On Augnst p; •19'73, we entered an order upholding ;the immigration 

judge's denial of respondent's aliplicatioh for adjust/lent of status under 

section 245 of the Immigration and Nationality Act, but granting 

respondent the privilege of voluntary departure. O•judicial review, our 

order was affirmed, but the record was remanded "for the sole purpose 

of permitting [respondent] to designate the Country to which she is to be' 

deported," Restubog v. INS, 9 Cir. No. 72-2663, October 18, 1973. 

Following remand but before we received the record, counsel for respondent filed a motion to reopen in order that respondent might seek 

termination of the proceedings under section 241(f) and adjustment of 

status under section 245, coupled with a waiver of inadmissibility under 

section 212(a)(19), pursuant to section 212(i) of the Act. The motion is 

supported by counsel's affidavit; by a birth certificate showing the birth 

of a child to respondent on December 9, 1970 at Seattle, Washington; by 

evidence showing that an immediate relative visa petition in respondJ ; 

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Interim Decision #2309 

ent's behalf was approved by the district director on March 23, 1973; and 

by an application for a section 212(i) waiver, based on respondent's 

relationship to her child and to her mother, both United States citizens. 

By the terms of the Court of Appeals order, which is binding on us, 

remand must be for the sole purpose of permitting the respondent to 

designate the country to which she is to be deported. Had the new 

evidence underlying the motion accrued after the Court of Appeals 

order, we might be justified in expanding the scope of our remand order, 

Matter of Campos, 13 I. & N. Dec. 148 (BIA 1969). However, all the 

events now relied on took place before the Court of Appeals order: the 

child was born on December 9, 1970 and the visa petition was approved 

on March 23, 1973. Under familiar concepts of res judicata, the Court of 

Appeals judgment binds us not only as to the issues actually raised and 

adjudicated by the court but also as to the issues which could have been 

raised. The only issue open for consideration on remand, then, is the 

designation of the country to which respondent is to be deported. 

We note, in passing, that respondent has been found deportable solely 

on the ground that after entry as a non-immigrant she remained longer 

than permitted. Section 241(f) of the Act, therefore, would not benefit 

her in any event. Cabaco-Flares v. INS, 477 F.2d. 108 (C.A. 9, 1973). 

ORDER: The hearing is reopened and the record is remanded to the 

immigration judge for the sole purpose of permitting the respondent to 

designate the country to which she is to be deported. 

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