Interim Decision #2264 

MATTER OF MLADINEO 

In Deportation Proceedings 

A-19956160 

Decided by Board March 1, 1974 

Where, as in the instant case, the Board of Immigration Appeals digmig9.44d 

respondent's appeal from the decision of the immigration judge solely for lack 

of jurisdiction, without adjudication on the merits, the attempted appeal was 

nugatory and the decision of the immigration judge remained undisturbed. If 

thereafter a motion is made to reopen or reeuw, ider, there ie no reason why 

the immigration judge should not adjudicate it, as he does in other cases 

where there was no appeal from his prior order. 

ON BEHALF OF RESPONDENT: Frederick A. Nervo, Esquire 

995 Market Street, #1017 

San Francisco, California 94103 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)1—After admission as a 

nonimmigrant under section 101(a)(15) of Act, remained 

longer than permitted. 

On February 6, 1973, we dismissed for lack of jurisdiction as 

untimely respondent's appeal from an order of an immigration 

judge finding her to be deportable and granting her the privilege 

of voluntary departure. She retained new counsel, who on August 

14, 1973 wrote a letter to the District Director requesting that the 

hearing be reopened to permit respondent to apply for withholding 

of deportation to Chile under section 243(h) of the Immigration 

and Nationality Act. Appended to the letter is an unsigned, 

unsworn declaration by respondent to the effect that she had been 

prejudiced economically in Chile because of her refusal to become 

a Socialist or a Communist. Contained in the record is a notice of 

appeal on Form I-290A dated August 15, 1973, purporting to 

appeal from a decision dated August 2, 1973. The record contains 

no decision of that date which is within our appellate jurisdiction. 

In a memorandum in the file dated October 2, 1973, the Service's 

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interim Decision #2264 

trial attorney expressed the view that the purported appeal, even 

if treated as a motion to reopen, will have to be adjudicated by the 

Board. The record has been submitted to the Board by the Service, 

presumably on the notion that our order dated February 6, 1973 

brings this case within the purview of 8 CFR 32, which provides, 

in pertinent part that, "Reopening or reconsideration of any case 

in which a decision has been made by the Board ... shall be only 

upon written motion to the Board." 

The quoted provision contemplates the situation where a decision on the merits has been made by us. Obviously, if a motion is 

then made to reopen or reconsider our decision, the motion should 

be considered and adjudicated by us. The same principles do not 

apply where the Board's decision was not on the merits of the 

case. Where, as here, dismissal by the Board was solely for lack of 

jurisdiction, so that we made no adjudication on the merits, the 

attempted appeal is nugatory and the decision of the immigration 

judge remains undisturbed. If thereafter a motion is made to 

reopen or reconsider that decision, there appears to be no reason 

why the immigration judge should not adjudicate it, as he does in 

other cases where there was no appeal from his prior order. 

Rather than remand the record to the immigration judge for 

adjudication, we shall take this case on certification under 8 CFR 

3.1(c) and determine the motion ourselves. We do this because so 

much time has already elapsed since the motion was filed and 

because the request for reopening is so patently without merit. 

Oral argument, which is requested, will be denied for the same 

reasons. 

The motion to reopen is unsworn and unsupported by affidavit 

or other evidence. The respondent's conclusory declaration that 

she had suffered economic and employment privation in Chile 

because of her refusal to become a Socialist or a Communist does 

not make out a prima facie showing that her fear of persecution in 

Chile is well-founded, especially since the prevailing regime there 

is now anti-Socialist and anti-Communist. Treating the papers 

before us as a motion to reopen, we conclude that the motion 

should be denied. 

ORDER: The motion is denied. 

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