* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 Judg es.
Mansur Habil, his wife Naeima El Emam, and their so n Ahmed Mansur appeal the decision of the Board of Immigration Appeals (“ the Board”) denying their motion to reopen their deportation proceedings. Our juris diction arises under 8 U.S.C. § 1105a(a), and we affirm. Habil, his wife, and their son were all born in Der na, Libya. Habil and his- 2 -

wife entered the United States in 1981 as nonimmigr ant exchange students. Their son entered the United States with them as a nonimm igrant dependent of an exchange student. While residing in the United States, Habi l and his wife had four more children. The Immigration and Naturalization Service (INS) is sued orders to show cause, alleging that each petitioner was a native a nd 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 petiti oners appealed. After filing a notice of appeal with the Board, the petitioners’ then-counsel moved to withdraw her entry of appearance on the gr ounds that the petitioners’ whereabouts were unknown and that she had been unab le to contact them. The Board dismissed the appeal as “moot as abandoned” b ecause petitioners had “provided no address at which any decision on the m erits [could] be effectively served.” The petitioners appealed the Board’s deci sion to this court, and we affirmed. Habil v. INS , 941 F.2d 1213 (10th Cir. 1991) (unpublished opini on). The petitioners then filed a motion to reopen with the Board. They argued that their appeal should not have been dismissed as aban doned and that they had established a prima facie case for asylum and for s uspension of deportation. The- 3 -

Board denied the motion to reopen on the grounds th at 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 reaso ns, among them: (1) failure to establish a prima facie case for the rel ief sought, (2) failure to introduce previously- unavailable material evidence, or (3) adetermination that even if these requirements were satisfied, the movant would not b e 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. Firs t, 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 produc e 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 r eopened. Second, the petitioners claim that the Board erred by denying their motion to reopen their asylum case. To be eligible for asylu m, the petitioners must- 4 -

demonstrate either past persecution or a well-found ed 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 produce d (1) a telegram, written in 1993, urging Habil not to return to Libya because h is family had been “questioned and searched by the police” due to Habil’s criticis m of the Libyan government and (2) a list of people detained by the Libyan governm ent between January 1989 and April 1990 whose circumstances were similar to Habi l’s. After reviewing the record, we conclude that the Board did not abuse its discre tion 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 o f executed Libyans that the petitioners submitted when they initially applied f or asylum. The list of detainees is no more related to the petitioners’ specific cir cumstances 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 evidenc e 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 suspe nsion of deportation. 8 U.S.C.- 5 -

§ 1254(f)(3). An exchange alien may apply for suspensionof deportation only if he has lived in his country of origin for two years fo llowing his departure from the United States. Id. ; 8 U.S.C. § 1182(e). This two-year foreign reside ncy requirement applies to exchange aliens whose program is finance d in whole or in part, directly or indirectly, by the government of the alien’s hom e 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 res idency requirement. In its opinion, the Board noted that if the petitio ners could show that they had fulfilled the foreign residency requirement, or tha t the INS had waived the requirement, they would not be barred from applying forsuspension of deportation.
See 8 U.S.C. 1254(f)(3)(C). However, the record conta ins no evidence that the residency requirement was fulfilled or waived. The petitio ners filed for a waiver of the requirement in 1988, but the record does not co ntain 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 estop ped from asserting that they are ineligible for suspension of deportation. Our revi ew is limited to the administrative record, 8 U.S.C. § 1105a(a)(4). The record does no t indicate whether the waiver request was granted or denied; thus, we have no wayof knowing whether the INS acted at all, much less the result of any action. In the absence of some evidence in- 6 -

the record that the residency requirement was fulfi lled or waived, the petitioners are not eligible for suspension of deportation. We the refore 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 it s discretion by refusing to reopen the petitioners deportation proceedings. Th e decision of the Board is
AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge