Fuentes v. I.N.S.

• Citation: 746 F.2d 94
• Decision Date: 22 October 1984
• Docket Number: No. 84-1012,84-1012
• Parties: Victor Jose Rodriguez FUENTES, Blasina Tejada De Rodriguez, Juana Damaris Miquella Rodriguez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 94

746 F.2d 94

Victor Jose Rodriguez FUENTES, Blasina Tejada De Rodriguez Juana Damaris Miquella Rodriguez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-1012.

United States Court of Appeals First Circuit.

Submitted Sept. 11, 1984.

Decided Oct. 22, 1984.

William John Glasser, San Juan, P.R., on brief, for petitioners.

Richard K. Willard, Acting Asst. Atty. Gen., Civil Div., Dawn MacPhee, Asst. Director, and Millicent Y. Clarke, Atty., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., were on brief, for respondent.

Before COFFIN, Circuit Judge, ALDRICH and SKELTON, ^* Senior Circuit Judges.

SKELTON, Senior Circuit Judge.

The petitioners in this case seek review of an October 8, 1981, decision of the Board of Immigration Appeals (BIA) affirming an immigration judge's denial of their applications for suspension of deportation, and a November 21, 1983, decision of the BIA denying their motion to reopen to file for suspension of deportation. The petitioners are all natives and citizens of the Dominican Republic. Victor Jose Rodriguez Fuentes (Mr. Rodriguez) last entered the United States at San Juan, Puerto Rico, on October 30, 1972, as a non-immigrant temporary worker. He was authorized to stay in the United States until November 18, 1972. His wife, Blasina Tejada de Rodriguez, last entered this country on January 29, 1972, and like her husband, was authorized to stay until November 18, 1972. Their daughter, Juana Rodriguez, entered the country on March 29, 1972, as a visitor for pleasure.

On September 29, 1975, the Immigration and Naturalization Service (INS) issued an order to show cause against Mr. Rodriguez, alleging that he was deportable pursuant to Sec. 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2) (the Act) for overstaying the period of his authorized stay in the United States. The immigration judge found him deportable as charged and granted him the privilege of departing the United States voluntarily on or before November 15, 1975. ¹ He did not depart, and a final order of deportation was entered against him.

On August 17, 1979, Mr. Rodriguez was again apprehended by the INS. He moved to reopen his deportation proceeding to enable him to file for suspension of deportation in that he now had accrued the requisite seven years of continuous physical presence in the United States. The motion was granted and a hearing was held on December 2, 1980. Show cause orders had also been issued against Mrs. Rodriguez and Juana Rodriguez, and at the request of the petitioners the three cases were joined. The immigration judge denied the motion, holding that while petitioners had been present in the United States for the requisite period of time (seven years), they had not established that they would suffer extreme hardship if deported, as is required by 8 U.S.C. Sec. 1254(a)(1). The judge further noted that Mr. Rodriguez had acquired most of his requisite seven years physical presence in the country after an order of deportation had been issued against him.

This decision was appealed to the BIA, and on October 8, 1981, the BIA affirmed the decision of the immigration judge. The record of the proceedings was then erroneously sent to New York instead of to the INS office in San Juan, and was subsequently lost. The certified record before this Court was recreated from copies contained in INS's file on the petitioners. Certain exhibits in the original file are not present in the recreated file. Petitioners contend that they were never notified of the BIA decision. However, the BIA's standard procedure is to send notice of its decision to the attorneys for the parties. There is no evidence in the record that the attorney who then represented petitioners did not receive notice of the BIA decision. Petitioners have since obtained different counsel.

The INS office in Puerto Rico did not receive notice of the BIA decision until September 22, 1983. It notified petitioners that it was extending their voluntary departure date to October 4, 1983. This date was further extended to November 3, 1983, at petitioners' request. However, the petitioners did not depart.

On October 31, 1983, the petitioners filed a motion to reopen their deportation proceedings with the BIA, in order to apply for suspension of deportation. In support of this motion, it was contended that Mr. Rodriguez was the sole financial support of his grandchild, a United States citizen, born on December 24, 1981. This allegation was unsupported by affidavits or other documentary evidence showing economic dependence on Mr. Rodriguez by any grandchild in the United States. The BIA denied this motion on November 21, 1983, on the ground that petitioners had failed to establish a prima facie case of extreme hardship.

This court may reverse a decision of the BIA not to reopen only if it finds that the decision was arbitrary, capricious, or constitutes an abuse of discretion. Holley v. INS, 727 F.2d 189, 191 (1st Cir.1984). The petitioners contend that BIA abused its discretion in not reopening the case when they...