Interim Decision #1661 

-3fArrza or Sulu 

In Deportation Proceedings 

• A-10767108 

Decided by Board October 263.1066 

Reopening of proceedings to permit application for withholding of deportation 

under section 213(h) of the Immigration and Nationality Act, as amended 

by the ..iket of October 3, 1965, ie not warranted in the case of respondent 

who fears criminal prosecution for misappropriation of state funds, if 

deported to Formosa, and who, on substantially the same facts, applied for 

and was denied such relief under the statute prior to amendment. 

DEVOISTAISIM ; .Act of 1962—Section 241(a) (2) (8 U.S.C. 325/3 —Nonimmigrant 

' (government employee)—remained longer. 

The 'record relates to a 37-year-old male alien, a native and citizen 

of China, whose wife and two Children are also natives and citizens 

of: that country and reside on Formosa. The respondent was admitted to the United States as a nonimmigrant government employee 

of China on August 18, 1356. Approximately one year after such 

admission he abandoned his lawful status. His deportability is established and uncontested.. He has been granted the privilege of 

voluntary departure. 

These deportation proceedings were instituted on or about April 

16, 1963. In the course thereof, the respondent applied for adjustment of his. status to that.of a permanent resident under section 245 

of the Immigration and Nationality Act (8 U.S.C. 1255). An application for temporary withholding of his deportation under section 

243(h) of the Immigration and Nationality Act (8 ;U.S.°. 1258) 

was specifically waived by respondent who was then represented by 

counsel. The relief of suspension of deportation under 'section 

244(a) of the Immigration and Nationality Act (8 U.S.C. 1254) 

was not applied for at that time, apparently because respondent had 

not completed seven years' physical presence within the United 

States .as required by the statute. 

On September 26, 1963, the special inquiry officer denied the respondent's application for adjustment of his status to that of a 

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permanent resident. On April 24, 1961, this Board affirmed that 

decision of the special inquiry officer:. On June 1964, we denied 

the respondent's motion for reopening of the proceedings to permit 

him to Ale and prosecute an application for temporary withholding 

of-his deportation to Formosa. The case is now again before us for 

consideration by way of a motion to reopen the proceedings to permit the respondent to file and prbsecute applications for temporary 

withholding of his deportation under section 243(h) of the Immigration and Nationality Act, and/or suspension of his deportation 

under section 244(a) (1) of that Act. 

The Service oppose., the granting of this motion insofak as it is 

directed to permitting the respondent- to file and prosecute an application for suspension of deportation. It does so on the ground that 

favorable exercise of discretion. to grant suspension of deportation 

is not merited by the respondent who, following admission as a nonimmigrant, has acquired minimum eligibility for such relief by 

taking advantage of every administrative and other remedy avail-

'able to him. The record before us supports the Service position in 

this respect. Accordingly, and on the basis of s prior precedent decision of this Board (Matter of L—, A-11196360, 5/27/66; Int. Dec. 

*1596), the respondent's motion is denied insofar as it is concerned 

with reopening the proceedings to permit him to file and prosecute 

an application for suspension of deportation. 

The Service is also _opposed to favorable action on the respondent's 

motion insofar as it relates to the question of temporary withholding 

of his deportation to Formosa. Basically, its position in this respect 

is predicated on the fact,that we denied. a similar motion on July 

13, 1964, after carefully considering substantially the same facts on 

which the present motion is predicated. It indicates awareness of 

the fact that section 243(h) of the Immigration -and Nationality Act 

has been amended since the entry of our last order, but claims that 

the test for, this relief provided for under the new law is not so 

different from that spelled out in the old law as to require reopening the proceedings now. It asserts that the evidence on this point 

which lire previously considered and is still relied on by respondent 

clearly does not meet the new statutory test and, therefore, does not 

require reexamination. Again, we agree with the Service and are 

of the opinion that favorable action on this portion of the respondent's motion is not warranted: 

8 CFlt 242.17(d) requires an application for relief under section.' 

243(h) of the Immigration and Nationality Act to be made in the 

course of the hearing before the special inquiry officer; and 8 CFR. 

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242.22 provides that a motion to reopen to consider an application 

for such relief will not be granted if the alien's right to apply was 

fully explained to him by the special inquiry officer, and he was 

afforded an opportunity to apply at the hearing. As indicated 

above, this record shows that the special inquiry officer complied 

strictly with the requirements of 8 CFR 242.22, and the respondent 

specifically waited his right to apply. The record. also reflects that 

the respondent was represented by competent and experienced counsel at the time he did so. 

We are aware that 8 CFR 242.22 does authorize reopening where 

the request therefor is based on circumstances arising after the hearing; that section 243(h) as originally enacted made the test for relief thereunder "physical persecution"; and that the October 3, 1965 

amendment to the statute (P.L. 89-236, 89th Cong., H.R. 2580) altered the test to "persecution on account of race, religion or political opinion." We, however, do not think these factors call for 

favorable action on the motion. 

On June 9, 1961, when this Board denied a similar motion in this 

case, our decision was based on a thorough review of evidence designed to establish that respondent's deportation-to Formosa would 

subject him to "physical persecution." Specifically, the evidence 

then considered was intended to show that respondent might be put 

to death by Formosan authorities. It revealed that his fear of such 

a fate was predicated on the fact that -he had received and/or requested from them funds.to further the purpose for which they had 

permitted him to come to the United. States, for their ultimate benefit as well as his, whereas he had, in fact, long since abandoned pursuit of that goal and was advancing his own interests which were 

inconsistent therewith. 

The present motion is based on the same evidence we previously 

found wanting as proof of possible "physical" persecution. Andcounsel's arguments in support of this motion are still directed to 

the respondent's fear of "physical" puitishment for conduct clearly 

criminal in nature rather than political. The contentions now voiced 

do not tend to show that respondent's case falls withiii the amended 

statute, to wit: that he fears "persecution on account of race, religion or political opinion." Therefore, we find that this motion 

does not satisfy the requirements of 8 OFR 3.8 that it be based on 

new facts to be proved at the reopened hearing. • 

In other words, counsel seeks to avail himself of the statute as 

amended to delete the word "physical" from its provisions. However, he argues solely that the respondent will be subject to "physi874 
Interim Decision 411381 

cal" persecution, an argument which has previously been considered 

and rejected by this Board. Accordingly, no useful purpose would 

be served to now reopen proceedings for consideration under the 

amended statute. The motion, therefore, will not be granted. 

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

denied. 

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