Matter of Rodriguez-Vera

• Decision Date: 27 September 1979
• Docket Number: A-30250195,Interim Decision Number 2727
• Citation: 17 I&N Dec. 105
• Parties: MATTER OF RODRIGUEZ-VERA In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 105

MATTER OF RODRIGUEZ-VERA

In Deportation Proceedings

Interim Decision Number 2727

A-30250195

Board of Immigration Appeals.

Decided by Board September 27, 1979

(1) The grant or denial of a motion to reopen is a discretionary determination with the outcome dependent in part upon the likelihood that the applicant will be granted the relief sought if reopening is permitted.

(2) Reopening may not be had, as of right, upon a bare showing of statutory eligibility for the discretionary relief sought; rather, it is incumbent upon the alien to make a prima facie showing both that the statutory requirements for the relief sought have been satisfied and that a grant of relief may be warranted as a matter of discretion.

(3) In adjudicating a motion to reopen, the immigration judge and the Board are entitled, at a minimum, to factual allegations which indicate that the adverse factors of record may be overcome by the equities presented.

(4) Notwithstanding a United States citizen father, mother, brother and sister, respondent's motion to reopen for consideration of section 212(c) relief denied as a matter of discretion where respondent was serving a 15-year sentence for the recent murder of his wife and no showing made of other unusual or outstanding equities.

CHARGE:

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime involving moral turpitude committed within five years after entry, to wit: murder

ON BEHALF OF RESPONDENT: Stanley Schneider, Esquire, Texas Department of Corrections, P.O. Box 99, Huntsville, Texas 77340.

ON BEHALF OF SERVICE: Paul B. O'Neill, District Director

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members.

In a decision dated January 31, 1978, the Board affirmed the October 6, 1977, decision of an immigration judge which found the respondent deportable as charged pursuant to section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4), and denied his applications for a waiver of inadmissibility and for adjustment of status pursuant to sections 212(h) and 245 of the Act, respectively, 8 U.S.C. 1182(h) and 1255. The respondent thereafter submitted an application for discretionary relief under section 212(c) of the Act, 8 U.S.C. 1182(c), which we shall consider a motion to reopen the deportation proceedings, as did the District Director, with jurisdiction lying with the Board. See 8 C.F.R. 3.2. The service opposes the motion. The motion will be denied.

The respondent is a 39-year-old native and citizen of Mexico who was admitted to the United States for lawful permanent residence on March 18, 1971. Deportability is predicated upon the respondent's conviction in March of 1976 in the 92nd District Court of Hildalgo County, Texas, of the felony offense of murder. The respondent was sentenced to a prison term of 15 years and 6 months pursuant to that conviction and is presently serving his sentence.

Section 212(c) of the Act provides in essence that aliens lawfully admitted for permanent residence, who temporarily proceed abroad voluntarily and not under an order of deportation and who are returning to a lawful unrelinquished domicile of 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain enumerated grounds for exclusion. The specified grounds include section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), which renders excludable aliens convicted of a crime involving moral turpitude. Murder is such an offense. See De Lucia v. Flagg, 297 F.2d 58 (7 Cir.1961), cert. denied, 369 U.S. 837 (1962). Pursuant to our decision in Matter of Silva, Interim Decision 2532 (BIA 1976), section 212(c) relief may be available to an alien in deportation proceedings notwithstanding the fact that he has not proceeded abroad subsequent to his admission for lawful permanent residence. Francis v. INS, 532 F.2d 268 (2 Cir.1976).

The Service opposes the motion to reopen on the ground that the requested relief would surely be denied in the exercise of discretion and, therefore, no useful purpose would be served by granting the motion.¹ We agree with the position of the Service.

Relief under section 212(c) is not available to all who are able to demonstrate statutory eligibility but, instead, requires the Attorney General or his delegate to determine as a matter of discretion whether an applicant merits the relief sought. The grant or denial of a motion to reopen is itself discretionary determination with the outcome dependent in part upon the likelihood that the applicant will be granted the relief sought if reopening is...