Interim Decision #2944 

MATTER OF ESCOBAR 

In Deportation Proceedings 

A-26365952 

Decided by Board June 28, 1983 

(1) The regulations provide that an alien shall have 10 days within which to perfect an 

appeal from a decision of an immigration judge. 8 IC_F.R. 2422L The procedures for 

computing the period of time for taking an appeal are silent as to the effect of the last 

day of an appeal period falling on a Saturday. 8 C.F.R. 1.1(h). 

(2) The Service's interpretation of this ambiguity would have the effect of shortening the 

period under 8 C.F.R. 242.21 within which an alien could take an appeal. Absent a 

showing that the Service's oMees are open on Saturdays, there is no legitimate distinction 

between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect 

his appeaL 

(3) Consistent with the Congressional authorization and approval manifested in Rule 6(a), 

Fed. R. Civ. P., and the pa Maple of fairness, the last, day of an appeal shall be included, 

in computing the appeal period,, unless it is a Saturday, a Sunday, or a legal holiday, 

in which event the period runs until the end of the next day which is not a Saturday, 

a Sunday, or a legal holiday. 

(4) Where the respondent conceded deportability at his hearing and does not contest that 

finding on appeal, has not shover) eligibility for voluntary departure, and specifically 

declined to apply for asylum, he has not shown that he was prejudiced by the absence of 

counsel or that he was denied a full and fair hearing as required by due process. 

(5) The respondent's motion to reopen for the purpose of applying for asylum will be denied 

where he has not reasonably explained his failure to assert the claim prior to the completion of the deportation hearing and where prima facie eligibility for the requested 

relief has not been established. 

CHARGE: 

ORDER: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(2)(2)1—Entered without inspection 

ON BEHALF OF BESPONDLNT: • ON BEHALF OF SERVICE: 

Marc Van Der Host, Esquire Ronald E. LeFevre 

3689 18th Street Chief Legal Officer 

San Francisco, California 94110 

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

The respondent appeals from the May 4, 1983, summary decision of 

the immigration judge, finding him deportable under section 241(a)(2) of 

the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and ordering 

his deportation to El Salvation During the pendency of the appeal, the 

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Interim Decision #2944 

respondent filed a motion to reopen for the purpose of applying for 

asylum. See 8 C.F.R. 208.11. The motion will be denied and the appeal 

dismissed. 

The respondent is a. 40-year-old native and citizen of El Salvador. He 

entered the United States without inspection on March 2, 1983. At his 

deportation hearing the respondent admitted the factual allegations, 

conceded deportability, and informed the immigration judge that he did 

not wish to apply for asylum. 

Before reaching the merits of the respondent's appeal we must address 

an initial question of our jurisdiction over this matter. The Service 

contends that the respondent's appeal was not timely .filed, that the 

immigration judge's decision is, therefore, administratively final, and 

that as a result this Board lacks jurisdiction to hear the appeal. The 

Service argues correctly that an appeal, in order to be timely, must be 

taken within 10 days after an immigration judge renders a decision, and 

that failure to do so results in the decision becoming administratively 

final. See 8 C.F.R. 3.3, 242.21, and 243.1. The Service concludes that as 

the respondent's appeal peribd ended on Saturday, May 14, 1 lP2, in 

order to perfect his appeal he was required to file his Notice of Appeal 

(Form I-290A) by the dose of business on Friday, May 13, 1983. This 

conclusion is based on the Service's interpretation of 8 C.F.R. 1.1(h) 1 

 that when the last day of the appeal period falls on a Saturday that day 

is included in computing the 10 day appeal period. We do not agree with 

this interpretation. 

We note that the language of 8 C.F.R. 1.1(h) tracks the language 

contained in Rule 6(a) of the Federal Rules of Civil Procedure prior to 

that rule's amendment in 1963. 2Rule 6(a) was amended in 1963 to bring 

it into conformity with the amendment of Rule 77(c), deleting Saturday 

as a day in which the clerk's office was to be open during business hours. 

Rule 6(a) now provides: 

In computing any period of time prescribed or allowed by these rules, by the local rules 

of any district court, by order of cocoa, or by any applicable statute, the day of the act, 

event, or default from which the designated period of time begins to run shall not be 

8 C.F.R. L1(h) provides: 

The term "day" when computing the period of tune for taking any actiun provided in 

this chapter including the taking of an appeal, shall include Sundays and legal holidays, 

except that when the last day of the period so computed falls on a Sunday or a legal 

holiday, the period shall run until the end of the next day which is neither a Sunday 

nor a legal holiday. 

2Rule 6(a) provided in relevant pa... 

In computing any period oftime prescribed or allowed by these rules; by order of court, 

or by any applicable statute, the day Of the act, event, or default after which the 

designated period of time begins to run is not to he included. The last day of the period 

so computed is to be included, unless itis a Sunday or a legal holiday, in which event the 

period runs until the end of the next day which is neither a Sunday nor a holiday. 

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Interim Deeiskin #2944 

included. The last day of the period so computed shall be included, unless it is a Saturday, 

a Sunday, or a legal holiday, in which event the period runs until the end of the next day 

which is not a Saturday, a Sunday, or a legal holiday. The amended language clearly 

reflects Congress' intent not to include as the last day of an appeal period a day in which 

the clerk's office is not open for business. 

The regulations provide that an alien shall have 10.days within which 

to perfect an appeal from a decision of an immigration judge. 8 C.F.R. 

242.21. The procedUres outlined in 8 C.F. R. 1.1ChMor computing the 

period of time for taking an appeal are silent, as to the effect of the last 

day of an appeal period falling on a Saturday. The Service's interpretation of this ambiguity would have the effect of shortening the period 

under 8 C.F.R. 242.21 within which an* alien could take an appeal. 

Absent a showing that the Service's offices are open on Saturdays, 

there is no legitimate distinction between Saturdays, Sundays and legal 

holidays with regard to an alien's ability to perfect his appeal. We decline, 

therefore, to adopt the Service's interpretation of 8 C.F.R. 1.1(h). We 

defer, instead, to the Congressional authorization and approval manifested in Rule 6(a), Fed. R.. Civ. P., and the interest of fairness in 

holding that in computing the period of time under 8 C.F.R. 1.1(h) for 

taking an appeal, the last day of the period so computed shall be included 

unless it is a Saturday, a Sunday, or a legal holiday, in which event the 

period runs until the end of the next day which is not a Saturday, a 

Sunday, or a legal holiday. 

In the present case, the respondent's appeal period ended on Saturday, 

May 14, 1983. He filed his Notice of Appeal with the Service's San 

Francisco office on Monday, May 16, 1983, that office apparently not 

being open on Saturday. We conclude, pursuant to our interpretation of 

8 C.F.R. 1.1(h), that the respondent's appeal was timely filed and.that 

we may properly exercise our jurisdiction over this matter. See 8 C.F.R. 

3.1(b)(2). 

On appeal, the respondent contends that the immigration judge should 

have granted him voluntary departure and that he was denied his right 

to effective assistance to counsel. The appeal is without merit. 

The respondent freely conceded his deportability for entry without 

inspection under section 241(a)(2) of the Act and does not now contest 

that finding. His deportability has been established by evidence which is 

clear, convincing, and unequivocal as required by Woodby v. INS, 385 

U.S. 276 (1966). Furthermore, we find no indication in the record or in 

the respondent's brief and supporting documents on appeal that he 

requested or was eligible , for voluntary departure. There has been no 

showing that the respondent had theavaable funds and the immediate 

means with which to depart promptly from the United States as required 

by the regulations. 8 C.F.R. 244.1. Accordingly, there is no basis to 

conclude that the respondent was improperly denied voluntary departure. 

Nor is there any basis to conclude that the respondent was denied his 

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Interim Decision #2944 

right to counsel or that he was prejudiced by the absence of counsel at 

his deportation hearing. Respondent's counsel states on appeal that he 

is informed that the respondent waived his right to counsel. There is no 

evidence in the record and none submitted by the respondent on appeal 

that his waiver was not competently, understandingly, and voluntarily 

made. The requirements of due process under the Fifth Amendment are 

satisfied by a full and fair hearing. Ramirez v. INS, 550 F.2d 560 (9 Cif.. 

1977). An alien has been denied a full and fair hearing as required by due 

process only if the matter complained of causes the alien to suffer some 

prejudnce. Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979). The respondent 

has not shown that he was prejudiced by the absence of counsel at his 

deportation hearing. The respondent conceded his deportability for entry 

without inspection and does not contest his deportability on appeaL He 

has not shown that he was statutorily eligible for voluntary departure 

and specifically informed the immigration judge that he did not wish to 

apply for asylum. 

The only remaining issue to be decided is the respondent's motion to 

reopen for the purpose of applying, for asylum and withholding of deportation under sections 208(a) and 243(h) of the Act, 8 U.S.C. 1158(a) and 

1253(h).3For the reasons stated.helow, the motion will be denied. 

A motion to reopen deportationproceedings for the purpose of applying for asylum or withholding of deportation will not be gralited where 

prima fade eligibility for such relief has not been established or the alien 

has not reasonably explained his failure to assert the claim prior to 

completion of the deportation hearing. 8 C.F.R. 208.11. See MartinezRomero v. INS, 692 F.2d 595 (9 Cir. 1982), affg Matter of MartinezRomero, 18 I&N Dec. 75 (BIA 1981). Nor will it be granted unless 

the evidence sought to be offered is material, was not available, and 

could not have been discovered or presented at the time of the original 

hearing. 8 C.F.R. 3.2, 103.5, and 242.22. 

The respondent's motion does not satisfy the requirements set forth 

in the regulations. The evidence submitted with the motion in support of 

the persecution claim was available at the time of the deportation hearing. 

The respondent has not reasonably explained his failure to timely file his 

asylum application. The vague and unsubstantiated assertion that he 

was operating under misinformation when he infornied the immigration 

judge that he did not wish to apply for asylum is not sufficient. 8 C.F.R. 

208.11. See Matter of Jean, 17 I&N Dec. 100. (PIA 1979). We find the 

respondent's explanation incredible in view of his abandonment of family and country and his journey from El Salvador to the United States 

for the claimed purpose of seeking asylum. Moreover, the respondent 

8Asylum requests made after the institution of deportation proceedings shall also be 

considered requests for withholding of deportation. 8 C.P.R. 208.3(b). 

41:5 
Interim Decision #2944 

has not shown prima fade eligibility for the requested relief. 

The law is well settled that an applicant for asylum or withholding of 

deportation hears, the burden of proving that he has a well-founded fear 

of persecution if returned to his native land. See Haitian Refuyee Center 

v. Smith., 676 F.2d 1023 (5 Cir. 1982); Fleurinorv. INS, 585 F.2d 129 (5 

Cir. 1978). This language refers to more than the alien's subjective state 

of mind. He must demonstrate a realistic likelihood that he will be 

persecuted on account of his race, religion, nationality, membership in a 

particular social group, or political opinion. See McMullen v. INS; 658 

F.2d 1312 (9 Cir. 1981); Khalil v. District Director of Immigration and 

Naturalization Service, 457 F.2d 1276 (9 Cir. 1$72); Kovac v. INS, 407 

F.2d 102 Cir. 1969). The respondent has not shown that he will be 

persecuted or that helms a well-founded fear of persecution within the 

meaning of section 208(a) or 243(h) of the Act. Our conclusion as to the 

respondent's claim is the same whether we apply a standard of "dear 

probability," "good reason," or "realistic likellood." See Rejaie v. INS, 

691 F.2d 139 (3 Cir. 1982). 

The respondent has presented no objective evidence which indicates 

that he as an individual would be persecuted or supports his generalized 

assertions of persecution. Such assertions, standing alone, are not 

sufficient. See Rejaiev_ 7NS , surav,- Mogheinion, v. United States Depart-

' ment of Justice, 577 F.2d 141 (9 Cir. 1978). Although the respondent 

stated that he was arrested and detained for 30 days, there is no evidence that he was fiirther threatened or harmed following his release. 

We note that the respondent stated that, in fear of being persecuted he 

abandoned his family and country and fled to Mexico where he lived for 

several months. There is no indication that the respondent sought asylum in Mexico. Moreover, in spite of his claimed fear of being persecuted, 

he returned to El Salvador and resumed living with his family where he 

remained for several months before departing for the United States. 

Notwithstanding the reported general conditions of anarchy and political and economic strife in El Salvador demonstrated by the documents 

submitted in support of the respondent's motion, there is no evidence 

that the respondent was ever persecuted or the likelihood that he will 

be. See Martinez-Romero v. INS, supra. 

Accordingly, the motion to reopen will be denied and the appeal 

dismissed. 

ORDER: The motion is denied and the appeal dismisied. 

416 ,