*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 8/5/96

TENTH CIRCUIT

MANSUR ABDUL HABIL, NAEIMA

MOHAMMED EL EMAM, AHMED

MANSUR HABIL,

Petitioner,

v.

IMMIGRATION &

NATURALIZATION SERVICE,

Respondent.

No. 95-9515

(BIA Nos. A26-544-305, A26-803-286

& A26-907-988)

(Petition for Review)

ORDER AND JUDGMENT*

Before TACHA, MCWILLIAMS, and BALDOCK, Circuit Judges.

Mansur Habil, his wife Naeima El Emam, and their son Ahmed Mansur appeal

the decision of the Board of Immigration Appeals (“the Board”) denying their motion

to reopen their deportation proceedings. Our jurisdiction arises under 8 U.S.C. §

1105a(a), and we affirm.

Habil, his wife, and their son were all born in Derna, Libya. Habil and his
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wife entered the United States in 1981 as nonimmigrant exchange students. Their

son entered the United States with them as a nonimmigrant dependent of an exchange

student. While residing in the United States, Habil and his wife had four more

children.

The Immigration and Naturalization Service (INS) issued orders to show

cause, alleging that each petitioner was a native and citizen of Libya, had stayed in

the United States beyond the time permitted by law, and had failed to depart within

the time specified. The petitioners conceded deportability and applied for asylum,

withholding of deportation, and suspension of deportation. The immigration judge

denied the petitioners’ application, and the petitioners appealed. 

After filing a notice of appeal with the Board, the petitioners’ then-counsel

moved to withdraw her entry of appearance on the grounds that the petitioners’

whereabouts were unknown and that she had been unable to contact them. The

Board dismissed the appeal as “moot as abandoned” because petitioners had

“provided no address at which any decision on the merits [could] be effectively

served.” The petitioners appealed the Board’s decision to this court, and we

affirmed. Habil v. INS, 941 F.2d 1213 (10th Cir. 1991) (unpublished opinion).

The petitioners then filed a motion to reopen with the Board. They argued that

their appeal should not have been dismissed as abandoned and that they had

established a prima facie case for asylum and for suspension of deportation. The
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Board denied the motion to reopen on the grounds that the petitioners’ new evidence

was inadequate to warrant reopening the appeal, that their evidence on the asylum

issue did not establish a prima facie case, and that they were statutorily ineligible for

suspension of deportation. This appeal followed. 

The Board may deny a motion to reopen for various reasons, among them: (1)

failure to establish a prima facie case for the relief sought, (2) failure to introduce

previously- unavailable material evidence, or (3) a determination that even if these

requirements were satisfied, the movant would not be entitled to the discretionary

relief sought. INS v. Doherty, 502 U.S. 314, 323 (1992). We review decisions to

deny motions to reopen for abuse of discretion. Id. at 323-24. 

The petitioners raise three issues on appeal. First, they contend that the Board

abused its discretion by refusing to reconsider its decision to dismiss the petitioners’

previous appeal as abandoned. This court affirmed the Board’s decision, creating

law of the case on this issue. Habil, 941 F.2d at 1213. It was not an abuse of

discretion for the Board to refuse to reconsider a decision that was affirmed by this

court. In addition, the petitioners did not produce any previously-unavailable

evidence that they had not abandoned their appeal. In the absence of such evidence,

petitioners are not entitled to have their appeal reopened.

Second, the petitioners claim that the Board erred by denying their motion to

reopen their asylum case. To be eligible for asylum, the petitioners must
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demonstrate either past persecution or a well-founded fear of future persecution

based on race, religion, nationality, membership in a particular social group, or

political opinion. Baka v. INS, 963 F.2d 1376, 1378-79 (10th Cir. 1992). The

petitioners bear the burden of demonstrating that they are eligible for asylum. Id. at

1378.

In support of their motion, the petitioners produced (1) a telegram, written in

1993, urging Habil not to return to Libya because his family had been “questioned

and searched by the police” due to Habil’s criticism of the Libyan government and

(2) a list of people detained by the Libyan government between January 1989 and

April 1990 whose circumstances were similar to Habil’s. After reviewing the record,

we conclude that the Board did not abuse its discretion when it determined that this

evidence was cumulative and not previously unavailable. The list of detainees, for

example, is the same type of evidence as the list of executed Libyans that the

petitioners submitted when they initially applied for asylum. The list of detainees

is no more related to the petitioners’ specific circumstances than was the list of

executed Libyans. Similarly, the telegram’s vague assertion that members of Habil’s

family had been questioned does not add new evidence establishing a prima facie

case.

Third, the petitioners argue that they are eligible for suspension of deportation.

In general, exchange aliens may not apply for suspension of deportation. 8 U.S.C.
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§ 1254(f)(3). An exchange alien may apply for suspension of deportation only if he

has lived in his country of origin for two years following his departure from the

United States. Id.; 8 U.S.C. § 1182(e). This two-year foreign residency requirement

applies to exchange aliens whose program is financed in whole or in part, directly

or indirectly, by the government of the alien’s home country. 8 U.S.C. 1182(e). The

record indicates that Habil’s program was financed in part by Libya. Thus, the

petitioners are subject to the two-year foreign residency requirement.

In its opinion, the Board noted that if the petitioners could show that they had

fulfilled the foreign residency requirement, or that the INS had waived the

requirement, they would not be barred from applying for suspension of deportation.

See 8 U.S.C. 1254(f)(3)(C). However, the record contains no evidence that the

residency requirement was fulfilled or waived. The petitioners filed for a waiver of

the requirement in 1988, but the record does not contain either a waiver or a denial

of the request for a waiver. 

The petitioners contend that the INS has not acted on their application for a

waiver and, therefore, that the INS should be estopped from asserting that they are

ineligible for suspension of deportation. Our review is limited to the administrative

record, 8 U.S.C. § 1105a(a)(4). The record does not indicate whether the waiver

request was granted or denied; thus, we have no way of knowing whether the INS

acted at all, much less the result of any action. In the absence of some evidence in
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the record that the residency requirement was fulfilled or waived, the petitioners are

not eligible for suspension of deportation. We therefore conclude that the Board did

not abuse its discretion by denying the petitioners’ request to reopen their motion for

suspension of deportation.

In summary, we hold that the Board did not abuse its discretion by refusing to

reopen the petitioners deportation proceedings. The decision of the Board is

AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge