Matter of Pena-Diaz
| Decision Date | 04 August 1994 |
| Docket Number | A-30568827.,Interim Decision Number 3225 |
| Parties | MATTER OF PENA-DIAZ. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
BY: Dunne, Acting Chairman; Vacca, Board Member. Concurring and Dissenting Opinion: Heilman, Board Member. Concurring Opinion: Holmes, Alternate Board Member.
In a decision dated September 2, 1992, an immigration judge denied the respondent's motion to reopen in order to apply for suspension of deportation under section 244(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(2) (Supp. IV 1992). The respondent timely appealed from that decision and requested oral argument. The appeal will be sustained, the proceedings will be reopened, and the record will be remanded. The request for oral argument is denied.
The respondent is a 45-year-old native and citizen of Mexico who entered the United States as a lawful permanent resident on May 5 1972. On March 26, 1976, the respondent was convicted of possession of approximately 95 pounds of marijuana with intent to distribute and sentenced to a term of 3 years' incarceration and a special parole term of 2 years, with all but 3 months of the sentence suspended. The court further recommended that the respondent not be deported as a result of his conviction.
On June 25, 1976, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221) charging the respondent with deportability under section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1976), as an alien who had been convicted of a controlled substance violation. In a hearing conducted on January 4, 1977, the respondent admitted the charges and, being ineligible for relief from deportation, was ordered deported from the United States to Mexico.
On January 5, 1977, the respondent requested a stay of deportation on the basis of the presence of his family members in the Brownsville, Texas, area, including his wife and two United States citizen children; his steady employment in that area as a machinist; and his presence in the United States as a lawful permanent resident since 1972. The Service apparently granted the respondent's request for a stay on April 7, 1977, effective until January 5, 1978. On July 7, 1978, the respondent applied for another stay of deportation, although it is not clear from the record whether this request was granted or denied. The respondent again applied for a stay of deportation on January 8, 1979, and this request was granted until January 8, 1980. On January 17 of that year, the respondent was placed in deferred action status. A condition of such status was that the respondent report in person to the district director each year. The record reflects that the respondent largely complied with this condition at least through 1989.
Apparently in an effort to travel to Matamoros, Mexico, to visit his parents, the respondent applied for a new Alien Registration Receipt Card (Form I-151) in January 1983. This request was denied on the ground that the respondent was no longer a lawful permanent resident. On March 13, 1984, the respondent filed a motion to reopen his deportation proceedings for the purpose of applying for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1982). An immigration judge replied to the respondent's motion on March 19, 1984, indicating his belief that the respondent was ineligible to apply for a waiver of inadmissibility under that provision, but reserving judgment on the issue until the Service could file a brief in opposition to the motion. For reasons not apparent from the record, no decision was taken on the motion until after the respondent had inquired about its status in February 1986, when another immigration judge denied it for lack of statutory eligibility on March 13, 1986.
According to the Service's brief in opposition to the instant appeal, the respondent's deferred action status was lifted on March 23, 1984, as a result of his motion to reopen filed earlier that month. As noted above, however, the respondent continued to report yearly as required by the district director, and no affirmative action was taken to effect his deportation until late 1987 or early 1988, when, according to the Service's brief, the respondent was ordered to report for deportation on February 25, 1988. The respondent apparently applied for reinstatement of deferred action status on February 16, 1988, a request which was denied on February 25, 1988.
On March 22, 1988, the respondent moved to reopen his deportation proceedings, this time for the purpose of applying for suspension of deportation under section 244(a)(2) of the Act. In support of his motion to reopen, the respondent submitted documentation to establish his continuous physical presence in the United States and his good moral character for the 10 years preceding the application, as well as to support his claim that his deportation would cause "exceptional and extremely unusual hardship" to himself, his lawful permanent resident alien spouse, and his three United States citizen children.
On June 14, 1988, the immigration judge denied the respondent's motion to reopen on the ground that the respondent's "equities," i.e., the basis for his claim of exceptional and extremely unusual hardship, had accrued in the 11 years since the court's deportation order. Believing that the respondent had ignored the order of deportation, the immigration judge refused to allow the respondent to benefit from his indifference or disregard of the law. Finally, noting the interest in bringing litigation to an end, the immigration judge concluded that the respondent's order of deportation should have been carried out long ago and denied the motion to reopen, presumably in the exercise of discretion.
On June 9, 1992, the respondent again moved to reopen to apply for suspension of deportation under section 244(a)(2) of the Act. In this motion, the respondent pointed out that he had not "ignored the court's order of deportation," but rather had remained in the United States with the permission of the Service. The respondent claimed in this regard that his prior counsel had not submitted the evidence of his deferred action status and requested that the immigration judge adjudicate the motion in this light.
On June 30, 1992, the immigration judge denied the respondent's third motion to reopen for the reasons set forth in his preceding denial. Finding that the evidence that the respondent sought to offer of his deferred action status was not previously unavailable, the immigration judge found the respondent's motion to be frivolous and filed solely for the purpose of delaying the 1977 deportation order. The immigration judge accordingly denied the motion, set aside all stays of deportation, and ordered that the 1977 order of deportation be considered in full force and effect.
In a fourth and final motion filed on September 1, 1992, the respondent again requested reopening of the proceedings in order to apply for suspension of deportation. This motion is essentially identical to his third motion to reopen. In like manner, the immigration judge's denial of the ultimate motion is also based on the same reasoning as his earlier denial, but emphasizes his finding that the motion was frivolous and filed solely for the purpose of delay. The respondent timely appealed from that decision.
On appeal, the respondent argues that the immigration judge erred in not considering the evidence that he submitted regarding his permission to remain in the United States. In addition, the respondent points to the following factors in alleging hardship to himself and his family if he is deported: his long-term residence and property ownership in the United States; the fact that his conviction occurred 18 years ago and that he has been law-abiding during those years; the fact that he has remained in this country with permission from the Service; and, finally, the presence of all of his immediate family in this country, including a United States citizen child with a heart condition.
The Service, in opposition to the respondent's appeal, characterizes the same as "frivolous" and argues that public policy favors that this ongoing litigation be brought to a close.
It is true that several grounds exist for denying a motion to reopen, and that an alien requesting such action bears a "heavy burden." See INS v. Doherty, 502 U.S. 314, (1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). In this case, however, we believe the respondent has presented sufficient evidence to establish that he warrants a hearing on his application for suspension of deportation.
In reaching this conclusion, we first note that it is unclear whether the immigration judge ever took into consideration the...
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