Matter of Reyes
| Decision Date | 30 June 1982 |
| Docket Number | A-20004461,Interim Decision Number 2907 |
| Citation | 18 I&N Dec. 249 |
| Parties | MATTER OF REYES In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
On November 18, 1980, this Board dismissed the respondent's appeal from a decision of an immigration judge denying her motion to reopen deportation proceedings in order to apply for suspensionof deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1). On April 7, 1982, the United States Court of Appeals for the Ninth Circuit reversed the Board's decision and remanded the case for further consideration. Reyes v. INS, 673 F.2d 1087 (9 Cir. 1982). Upon reconsideration, the appeal is again dismissed.
The respondent is a 34-year-old native and citizen of the Philippines. She entered the United States as a nonimmigrant visitor for pleasure on October 30, 1968, and was authorized to remain as a visitor until June 1969.1 She did not depart.
In April 1970, the Immigration and Naturalization Service issued an Order to Show Cause charging the respondent with being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), as an "overstayed" visitor. At deportation proceedings in May 1970, the respondent conceded deportability and requested only that she be permitted to voluntarily depart from the United States. The immigration judge found the respondent deportable as charged and granted her the privilege of 30 days voluntary departure. His order of deportation became final as no appeal was taken to this Board.
The respondent did not depart from the United States. By her own characterization, she "panicked" and went into hiding. Service efforts to locate her were unsuccessful.
Years passed and the respondent remained in hiding. In September 1977, the respondent's parents entered the United States as lawful permanent residents.2 In April 1979, her parents and her United States citizen sister filed visa petitions on her behalf. Both second and fifth preference petitions were approved. See sections 203(a)(2) and (5) of the Act, 8 U.S.C. 1153(a)(2) and (5).
On July 23, 1979, the respondent surrendered to immigration authorities. Two days later, she filed a motion to reopen to apply for suspension of deportation, having accumulated while in hiding over 7 years continuous physical presence in this country. Her "extreme hardship" claims were based primarily on the hardshipit was alleged would be suffered by her lawful permanent resident parents, who entered this country some 7 years after she had become subject to a final order of deportation. As noted, the immigration judge denied the motion to reopen3 and an appeal from that decision was dismissed by this Board.
In support of her motion to reopen the respondent submitted her own affidavit and one by each of her parents. The essence of the hardship claim is that her parents are elderly;4 that they are in precarious health;5 that she is the only child now living with them; that they depend on her for transportation to doctors, assistance in household chores, and companionship; and that she istheir only source of income as the other children have "financial problems as well and cannot help out." No affidavits were submitted from the respondent's brothers and sisters who reside lawfully in this country.
Considering the background of this case (e.g., that proceedings had been final for 9 years when the motion was filed) and the nature of the supporting information submitted, the Board concluded both that an insufficient evidentiary showing of extreme hardship had been presented to warrant reopening and that the unlikelihood of relief being granted in the exercise of discretion warranted dismissal of the appeal.
On review by the Ninth Circuit, it was stated that our ruling on extreme hardship was based on our disbelief of the statements made in the affidavits; that the Board's premature assessment and rejection of the truth of those statements was manifestly unfair; and that disbelieving the statements because of the lack of corroboration "imposed a heavy burden of evidentiary support which [was] inconsistent with the limited screening function served by a motion to reopen." It was further stated that this requirement of corroboration was inconsistent with the requirements of 8 C.F.R. 3.8(a). As the process by which the motion was considered was deemed defective, the case was remanded so that this Board could reconsider whether a prima facie case of extreme hardship was established. The Ninth Circuit further stated that it had grave doubts whether this Board could consider factors other than those pertaining to the establishment of a prima facie case in ruling on a motion to reopen.
We initially note that we do not consider that the corroboration we found lacking in this case imposed a heavy evidentiary burden on the respondent or that such requirement was in violation of 8 C.F.R. 3.8(a), which sets forth the minimum requirements upon which a motion can be granted. However, we add that under the factual background of cases such as this, we consider it warranted and reasonable to require a clear, unambiguous showing of evidentiary support to justify reopening with all its attendant delays.
We would clarify that our previous conclusions as to the sufficiency of the affidavits supporting this case had more to do with what was not stated in the affidavits than what was stated in them. Our decision was not principally based on a disbelief of the "facts" set forth in the affidavits. Even accepting the truth of what was stated therein, the affidavits contained significant omissions.
The respondent's parents have seven other children living lawfully in this country. The motion papers do not indicate where the children reside. The affidavits state that the respondent is the only child still residing at home, but they do not indicate that other children could not reside with the parents if absolutely necessary, or that the parents could not reside with any of the many other children. The affidavits state that the respondent provides care, transportation, and comfort to her parents, but they do not state that such assistance could not be provided by the other children. In fact, the only specific circumstance regarding the other children referenced in the affidavits is that the other family members have "financial problems . . . and cannot help out [with the financial support of their parents]." We did not find it unreasonable to require affidavits to that effect from the other children, who are in a far better position to know whether or not they could assist in the support of their parents if necessary.6
As this case had been closed for some 9 years when the respondent sought reopening, we did not consider the nature of the supporting allegations we required to be unreasonable. In view of the time that had elapsed since the final order of deportation, the reason that the order could not be previously executed, and the delays that reopening would necessarily entail, we did not and do not consider it unreasonable, arbitrary, or manifestly unfair to require as a minimum a clear and unambiguous showing of prima facie eligibility for relief before reopening will be favorably considered. Under facts such as those arising here, we do require a significant showing of a likelihood of success on the merits before reopening will be ordered.
Accepting the allegations specifically set forth in the affidavits to be true, but not accepting as true matters not alleged therein, and considering the potential of this respondent to lawfully immigrate to the United States as a result of her approved second-preference visa petition,7 our conclusion would still be that a prima facie showing of extreme hardship has not been adequately set forth on the record before us.
However, we do not find it essential to reach such a conclusion. Even assuming for the purposes of review that a prima facie showing of extreme hardship is set forth, we specifically decline in the exercise of discretion to order the proceedings reopened.
We recognize that in Urbano de Malaluan v. INS, 577 F.2d 589, 593 (9 Cir. 1978), the Ninth Circuit stated that if a prima facie case of eligibility for suspension of deportation was set out in a motion to reopen, it would be an abuse of discretion for the Board not to order the proceedings reopened to allow for a hearing on the merits of the application. In Jong Ha Wang v. INS, 622 F.2d 1341 (9 Cir. 1980), and Villena v. INS, 622 F.2d 1352 (9 Cir. 1980), this position was reaffirmed by that Court. See also Choe v. INS, ...
To continue reading
Request your trial