Matter of Lee, Interim Decision Number 1596

• Decision Date: 27 May 1966
• Docket Number: Interim Decision Number 1596,A-11196360
• Parties: MATTER OF LEE In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 649

MATTER OF LEE

In Deportation Proceedings

Interim Decision Number 1596

A-11196360

Board of Immigration Appeals

Decided by Board May 27, 1966

Motion to reopen deportation proceedings to permit the filing of an application for suspension of deportation is denied since, in the absence of particularly strong equities, the favorable exercise of discretion to grant suspension of deportation is not merited by respondent who, following admission as a non-immigrant student, has acquired a bare minimum eligibility for such relief by taking advantage of every administrative, and other, remedy available to him.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251]—Nonimmigrant (student)—Remained longer.

On November 12, 1964, the special inquiry officer granted the respondent's request for voluntary departure, but provided for his deportation to Japan, alternatively to the Republic of Korea, on the charge contained in the order to show cause, in the event of his failure to so depart.¹ That decision became final for want of an appeal.

Subsequently, however, the respondent moved to reopen his case so he could file and prosecute an application for suspension of deportation. On March 22, 1966, the special inquiry officer denied that motion. The appeal from that denial, which brings the case before this Board for consideration, will be dismissed.

The record relates to a 33-year-old male alien, a native of Japan and citizen of Korea, who last entered the United States on or about September 10, 1958. He was then admitted as a nonimmigrant student, and he was authorized to remain here in that status until October 7, 1963. On March 17, 1964, he was directed to depart on or before June 4, 1964, and the time for his departure was later extended to October 4, 1964. He has remained here since that date without authority. His deportability, therefore, is established. It is also uncontested.

The request to reopen these proceedings is based on the assertion that respondent has been a resident of the United States for more than seven years; that he now appears eligible to exercise the privilege of applying for suspension of deportation; and that it would be in the best interests of all concerned, including respondent's employer, if such application be considered on its merits. Essentially, however, claimed hardship to respondent's minor citizen child of tender years is the reason for this appeal.

An application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, as amended, presents the dual aspects of eligibility and the exercise of discretionary authority. To be eligible for relief under that section of the law, the respondent must establish that:

(1) he has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application;

(2) during all such period he has been a person of good moral character; and

(3) he is a person whose deportation would result in extreme hardship to himself or to his spouse, parent or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The respondent, however, is not entitled, as of right, to an order reopening his deportation proceedings.

Herein, we have an alien who was admitted to and permitted to remain in the United States as a student for five years. When his status as a student terminated, instead of departing as directed he married another...