GUEVARA

Interim Decision #3143

MATTER OF GUEVARA

In Deportation Proceedings

A-29017722

Decided by Board September 14, 1990

Decided by Board January 31, 1991

(1)A respondent in deportation proceedings who remains silent when confronted with

evidence of his alienage, the circumstances of his entry, or his deportability, may leave

himself open to adverse inferences, which may properly lead in turn to a finding of

deportability against him.

(2) In deportation proceedings, the respondent's silence alone, in the absence of any

other evidence of record, is insufficient to constitute prima facie evidence of the

respondent's alienage and is therefore also insufficient to establish the respondent's

deportability by clear, unequivocal, and convincing evidence.

(3)Whether or not the Government's purported grant of immunity from prosecution is

actually valid, the Immigration and Naturalization Service may not rely on the

respondent's silence alone to establish a prima facie case of alienage and deportability.

(4)The immigration judge's finding that the Service had established the respondent's

alienage and deportability on the basis of the respondent's silence alone was found to

be erroneous, and the Board of Immigration Appeals terminated the deportation

proceedings.

(5)Where the Service did not seek to modify its case against the respondent, but merely

requested an additional opportunity to make a second effort at proving the same

allegations and charge which had already been advanced unsuccessfully, regulations at

8 C.F.R. §§ 3.28 and 242.16(d) (1990) did not apply, and the Board dismissed the

Service's motion to reconsider.

CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] —Entered without inspection

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE

Judith Gail Dein, Esquire Frank Crowley

Warner & Stackpole General Attorney

75 State Street

Boston. Massachusetts 02109

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

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Interim Decision #3143

BEFORE THE BOARD

(September 14, 1990)

In a ruling made on September 19, 1989, an immigration judge

found the respondent deportable as charged under section 241(a)(2) of

the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as

an alien who entered the United States without inspection. He ordered

the case continued to September 13, 1990, for preparation of any

applications for relief from deportation. The respondent then filed this

appeal. The appeal will be sustained, and the deportation proceedings

will be terminated.

The decision which the respondent wishes this Board to review is

interlocutory in nature. The Board of Immigration Appeals does not

ordinarily entertain interlocutory appeals. See Matter of Ruiz-Campu-

zano, 17 I&N Dec. 108 (BIA 1979); Matter of Ku, 15 I&N Dec. 712

(BIA 1976); Matter of Sacco, 15 I&N Dec. 109 (BIA 1974). However,

we have on occasion ruled on the merits of interlocutory appeals where

we deemed it necessary to address important jurisdictional questions

regarding the administration of the immigration laws, or to correct

recurring problems in the handling of cases by immigration judges. See

Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988); Matter of

Rosales, 19 I&N Dec. 655 (BIA 1988); Matter of Amico, 19 I&N Dec.

652 (BIA 1988); Matter of Correa, 19 I&N Dec. 130 (BIA 1984);

Matter of Victorino, 18 I&N Dec. 259 (BIA 1982); Matter of Alphonse,

18 I&N Dec. 178 (BIA 1981); Matter of Wadas, 17 I&N Dec. 346 (BIA

1980); Matter of Seren, 15 I&N Dec. 590 (BIA 1976); Matter of Fong,

14 I&N Dec. 670 (BIA 1974).

By an Order to Show Cause, Notice of Hearing, and Warrant for

Arrest of Alien (Form I-2218) dated October 21, 1988, the respondent

is alleged to be a native and citizen of El Salvador and is charged with

entering the United States without inspection on December 15, 1987,

in violation of section 241(a)(2) of the Act.

The essential procedural facts in the case are not in dispute. On May

8, 1989, the respondent contested the allegations on the Order to Show

Cause and apparently informed the immigration judge, through

counsel, that any evidence produced by the Immigration and Natural-

ization Service as a result of his apprehension would be the subject of a

motion to suppress. The immigration judge ordered the case contin-

ued. On September 19, 1989, the respondent again appeared before the

immigration judge and was called as a witness by counsel for the

Service. However, the respondent refused to answer any questions

other than as to his identity, asserting, as a basis for such refusal, his

privilege against self incrimination under the fifth amendment to the

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Constitution of the United States. The immigration judge then

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informed the respondent of the existence of an "Agency Order," issued

by the Service and dated September 5, 1989. The order directs the

respondent to testify and purports to immunize him from the future

use, in any criminal proceeding, of any testimony he may give in the

deportation proceeding, thereby removing the respondent's fifth

amendment privilege against self-incrimination as it relates to these

proceedings. Counsel for the respondent objected to the order as an

invalid grant of immunity.' The respondent still refused to testify

based on his fifth amendment privilege against self-incrimination?

The Service presented no evidence to establish the respondent's

alienage and deportability other than the respondent's silence in the

face of questioning. The immigration judge found, in view of the grant

of immunity from prosecution, that the respondent's silence was no

longer privileged under the fifth amendment, since there was no

remaining danger of self-incrimination. He therefore drew an adverse

inference from the respondent's silence and found that the respondent

was an alien, as alleged. He further determined that the burden of

proof shifted to the respondent under section 291 of the Act, 8 U.S.C.

§ 1361 (1988), noted that the respondent had• not established the time,

place, or manner of his entry, and consequently found the respondent

deportable as charged. He then ordered a continuance for the purpose

of preparing any possible requests for relief from deportation.

On interlocutory appeal from the immigration judge's determina-

tion of deportability, the respondent, through counsel, urges essentially

that the grant of immunity was invalid, and that the silence of the

respondent alone is insufficient evidence of deportability to sustain a

finding of deportability by clear, unequivocal, and convincing evi-

dence. He further argues that it is urgent that these issues be

determined on interlocutory appeal, since if they are not so deter-

mined, the respondent will be faced with the unfair choice of either

waiving his privilege against self-incrimination for criminal purposes

'The Agency Order produced by the Service does not appear in the record. However,

counsel for the respondent has provided a copy of such an order, consistent with the

description in the brief for the Service. The respondent has submitted evidence to

suggest that a standard order of this type has been used in some 25 other cases likely to

appear before this Board. The order is signed by a general attorney for the Service, with

an attachment in the form of a letter from the Assistant Attorney General. The

attachment purports to grant the general attorney the authority to issue the Agency

Order described above, "provided that the testimony ... may be necessary to the public

interest." The letter cites as authority for this procedure 18 U.S.C. §§ 6002 and 6004

(1988) and 28 C.F.R. § 0.175 (1989). We do not here address the validity of the order.

We decide the case on other grounds.

2 Section 275 of the Immigration and Nationality Act, 8 U.S.C. § 1325 (1988), macs

it a crime for any alien to enter the United States at any time or place other than as

designated by immigration officers.

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Interim Decision #3143

in order to apply for relief, or remaining silent and being ordered

deported, in spite of eligibility for such relief. In view of this possible

prejudice to the constitutional rights of the respondent,; and the likely

occurrence of similar circumstances in the case of a number of others

apprehended at the same time and place as evidenced by affidavits in

the record, he submits that this case is appropriate for interlocutory

consideration.

The Service argues in its brief that the grant of immunity was valid,

that unprivileged silence may be the most persuasive kind of evidence

of a respondent's alienage, and that the respondent's silence in this

case was therefore sufficient in itself to establish his alienage. The

Service also argues that the respondent's continued silence further

establishes his deportability by the requisite standard of proof, and

that the immigration judge's determination was therefore correct. The

Service opposes interlocutory consideration of the case.

For purposes of the instant case, we will assume without deciding

that the grant of immunity by the Service was valid, and the

respondent's silence was therefore unprivileged. We observe that

under the circumstances presented, the result would be the same in

either event. Thus, the essential question presented is whether the

respondent's silence in the face of questioning by the Service counsel

at the hearing before the immigration judge constituted enough

evidence to shift the burden of proof to the respondent under section

291 of the Act, such that his continued silence properly resulted in a

finding that his deportability was established by clear, unequivocal,

and convincing evidence.

We note at the outset that under certain circumstances, an adverse

inference may indeed be drawn from a respondent's silence in

deportation proceedings. See INS v. Lopez Mendoza, 468 U.S. 1032

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(1984); United States ex rd. Vajtauer v. Commissioner of Immigration,

273 U.S. 103 (1927) (admitted alien; adverse evidence strengthened by

his silence); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149

3 See Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1089 (5th Cir. 1979)

(court will not force a man to choose between self-incriminating statements and severe

civil consequences; discovery stayed for 3 years to allow criminal statute of limitations

to expire, rather than force litigant to abandon suit); see also Garrity v. New Jersey, 385

U.S. 493 (1967) (the State Attorney General is not permitted to force police officers to

choose between incriminating themselves by providing requested information pursuant

to an internal investigation, and losing their jobs; conviction of officers reversed);

Spevack v. Klein, 385 U.S. 511 (1967) (attorney cannot be required to choose between

self-incrimination and disbarment). But see Black Panther Party v. Smith, 661 F.2d 1243

(D.C. Cir. 1981), vacated sub nom. Moore v. Black Panther Party, 458 U.S. 1118 (1982)

(circuit court had remanded the case for balancing test where Huey Newton of the Black

Panthers refused to answer questions based on fifth amendment privilege; Supreme

Court vacated with instructions to dismiss).

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(1923); United States v. Sing Tuck, 194 U.S. 161 (1904) (exclusion

proceedings; simple assertion of citizenship plus silence thereafter is

not enough to avert exclusion and deportation); United States v.

Alderete-Dem, 743 F.2d 645 (9th Cir. 1984); Cabral-Avila v. INS, 589

F.2d 957 (9th Cir. 1978), cert. denied, 440 U.S. 920 (1979) (prima facie

case of deportability not rebutted by alien's silence); Hyun v. Landon,

219 F.2d 404 (9th Cir. 1955), affd, 350 U.S. 990 (1956) (adverse

testimony of others strengthened by alien's refusal to testify); Matter of

Carrillo, 17 I&N Dec. 30 (BIA 1979) (after burden of proof was shifted

to respondent, silence was not enough to avert deportability); Matter of

R S , 7 I&N Dec. 271 (BIA, A.G. 1956) (prior statement plus

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respondent's silence at hearing sufficient to show deportability). 4 Thus,

it is clear that when confronted with evidence of, for example, the

respondent's alienage, the circumstances of his entry, or his deportabil-

ity, a respondent who remains silent may leave himself open to

adverse inferences, which may properly lead in turn to a finding of

deportability against him.

However, this proposition, and the cases which support it, are not

controlling in the instant case. They do not relate to the situation at the

outset of a hearing, prior to the introduction of evidence by the

Government. Therefore, they by no means mitigate the clear require-

ment established by the Supreme Court, and codified in current

regulations, that the burden of proof in deportation proceedings is

upon the Service to establish the alienage of the respondent, and

ultimately his deportability, by evidence that is clear, unequivocal, and

convincing. Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a)

(1990).

Under the circumstances presented here, the respondent's silence

alone does not provide sufficient evidence, in the absence of any other

evidence of record at all, to establish a prima facie case of alienage,

sufficient to shift the burden of proof to the respondent under section

291 of the Act. It is true, as the Service points out in its brief, that in

BikkUmsky v. Tod, supra, the Supreme Court stated, "Conduct which

forms a basis for inference is evidence. Silence is often evidence of the

most persuasive character." Id. at 153-54. However, the respondent's

silence in that case was not the only evidence of record. It rather

4 The respondent argues that an adverse inference may not be drawn from his silence,

citing Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978); Chavez-Raga v. INS, 519 F.2d 397

(7th Cir. 1975); Matter of Gonzalez, 16 I&N Dec. 44, 47 (BIA 1976); Matter of Tsang, 14

I&N Dec. 294, 295 (BIA 1973); Matter of Wong, 13 I&N Dec. 820, 823 n.3 (BIA 1971)

(proper claim of privilege). However, the circuit court cases cited are clearly inapposite,

and the Board precedents do not express such a holding. They merely icpicacut

instances wherein we declined to draw an adverse inference based on privileged silence,

where evidence of deportability was sufficient even without such an inference.

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tended to support other evidence of record, including a prior statement

by the alien and a landing certificate. 5

Similarly, in another case cited by the Service, Cabral-Avila v. INS,

supra, the finding of deportability was not based solely upon the

petitioners' silence_ Rather, the Service first established a prima facie

case of deportability, through the introduction of official forms

executed in connection with the petitioners' prior entry to the United

States, containing evidence of alienage and deportability. The burden

of proof may then shifted to the petitioners to show the time, place,

and manner of their entry in accordance with section 291 of the Act. In

this context the court stated, "[T]heir [privileged] silence cannot be

relied upon to carry forward their duty to rebut the Government's

prima fade case." Id. at 959. In short, the Government's case was not

established by the petitioners' silence, but by independent evidence

which such silence simply did not rebut.

Nor has this Board in the past found silence alone to be enough to

establish the Service's prima facie case of the respondent's alienage by

the requisite standard of proof. On the contrary, while we have held

that a respondent's silence may fairly corroborate other evidence

presented for the record, see Matter of Cheung, 13 I&N Dec. 794, 796

(BIA 1971), we have also stated that "[sluspicion cannot be solidified

Into proof by the mere silence of respondent." Matter of"-, 8 I&N Dec.

568, 572 (BIA 1960); see also United States ex rel. Kettunen v. Reimer,

79 F.2d 315, 317 (2d Cir. 1935) (while a respondent's refusal to testify

"may have some evidential force ... , it is no more than a scintilla in

the setting here"). We have also noted that section 291 of the Act

comes into play in an appropriate case only when the Service has

presented a prima facie case of alienage. Matter of Sandoval, 17 I&N

Dec. 70 PIA 1979); see also, e.g., Iran v. INS, 656 F.2d 469 (9th Cir.

1981) (burden of proof shifts to respondent only after prima facie case

is established); Matter of J-, supra (proper to draw unfavorable

inference from silence only after prima facie case is established);

Matter of 0-, 6 I&N Dec. 246 (BIA 1954) (same).

The Service argues in its brief on interlocutory appeal that our

decision in Matter of Santos, 19 I&N Dec. 105 (BIA 1984), enunciates

a position. contrary to the respondent's argument and requires a

finding that the immigration judge's determination of deportability in

the instant case was correct. We disagree. In Matter of Santos, supra,

we observed indeed that a respondent has no right to remain silent at

his deportation hearing when he is asked nonincriminating questions.

5 It was in this context that the court stated, To defeat deportation it is not always

enough for the person arrested to stand mute at the hearing and put the government

upon its proof." Bilokumsky v. Tod, supra, at 155.

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We stated further that a respondent is in fact "under an obligation to

answer any questions truthfully or suffer the adverse inferences that

could be drawn from his silence." Matter of Santos, supra, at 110

(citing Vajtauer v. Commissioner, supra, at 110; Bilokumsky v. Tod,

supra, at 154; Chavez-Raya v. INS, 519 F.2d 397, 401 (7th Cir. 1975)).

However, we did not hold in Santos that a respondent may properly be

found deportable, in the absence of any substantive evidence produced

by the Service, based solely upon the adverse inference drawn from his

silence. Under the circumstances presented in the instant case, such a

finding of deportability was not properly made.

The legal concept of a "burden of proof' requires that the party

upon whom the burden rests carry such burden by presenting

evidence. If the only evidence necessary to satisfy this burden were the

silence of the other party, then for all practical purposes, the burden

would actually fall upon the silent party from the outset. Under this

standard, every deportation proceeding would begin with an adverse

inference which the respondent would be required to rebut. We cannot

rewrite the Act to reflect such a shift in the burden of proof_ Woodby

INS, supra; 8 C.F.R. § 242.14(a) (1990); see also Iran v. INS, supra

(only when the Service has satisfied its burden of proving the facts

supporting deportability by clear, unequivocal, and convincing evi-

dence does the burden shift to the respondent under section 291 of the

Act); Matter of Benitez, 19 I&N Dec. 173 (BIA 1984) (burden shifts to

respondent once the Government establishes his alienage); Matter of

Sandoval, supra. In short, if the "burden" of proof were satisfied by a

respondent's silence alone, it would be practically no burden at all.

See, e.g., Navia Duran v. INS, 568 F.2d 803 (1st Cir. 1977) (all

evidence other than respondent's silence suppressed; burden of

proving deportability therefore not met).

In the instant case, the respondent was called to testify, denied the

allegations in the Order to Show Cause, and thereafter elected to

remain silent in the face of questions by the Service. The Service

introduced no other evidence.' The record is therefore altogether silent

as to the respondent's place of birth, subsequent changes of status, or

other relevant data, apart from the bare allegations and charge

reflected in the Order to Show Cause itself. As such, the burden of

proof has not shifted to the alien under section 291 of the Act, and

deportability has not been established by evidence which is clear,

unequivocal, and convincing. We find, therefore, that under the

6 fhe Service brief on appeal indicates that certain relevant Service documents werc

served on respondent's counsel. However, whether by deliberate choice or otherwise,

they were not submitted for admission into evidence.

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circumstances, the determination of the respondent's deportability was

not properly made.

Since the immigration judge has granted a continuance below only

for purposes of considering relief from deportation, no further

evidence is likely to be presented on the deportability issue. As we

have determined deportability to be insufficiently established, there is

no further reason to consider relief from deportation in this case.

Consequently, the deportation proceedings will be terminated.

ORDER: The interlocutory appeal is sustained, and the depor-

tation proceedings are terminated.

BEFORE THE BOARD

(January 31, 1991)

This case first came before us on interlocutory appeal from a

September 19, 1989, ruling of the immigration judge, which found the

respondent deportable as charged. We sustained the interlocutory

appeal and terminated the proceedings in a decision dated September

14, 1990. The Immigration and Naturalization Service then filed this

motion to reconsider our prior decision. The motion will be denied,

and our prior decision in the case will be affirmed.

The facts of the case were recounted in our prior decision and may

be summarized briefly as follows. The respondent was charged with

being an alien who entered the United States without inspection. He

contested the charge, refused to testify except as to his identity,

invoked the fifth amendment, and stated, through counsel, that he

would move to suppress any evidence the Service introduced. The

Service then offered no evidence, but issued an "Agency Order"

purporting to immunize the respondent from use of his testimony in

any criminal proceedings. The Service thereafter relied solely upon the

respondent's continued silence in the face of questioning, as evidence

of his deportability. The immigration judge found him deportable and

ordered a continuance for preparation of any applications for relief

from deportation.

The respondent then filed an interlocutory appeal. He argued that

the deportability finding was erroneous, and that his rights under the

Constitution would be jeopardized at a continued hearing. He pointed

out that numerous other cases based on the same facts were also

pending, and he requested termination of the proceedings. The

Service, on the other hand, argued that deportability had already been

established, and it requested that the case be allowed to continue,

uninterrupted, to the relief stage. We accepted the interlocutory

appeal. We found that the respondent's silence alone was insufficient

to satisfy the Service's burden of establishing deportability by the

requisite standard of proof. We therefore terminated the proceedings.

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The Service does not now dispute the substantive reasoning behind

this decision. Rather, the Service moves that we reconsider our

termination of the proceedings, and that the record be remanded to the

immigration judge so that the Service may present additional evidence

of alienage and deportability.

The regulations which govern motions to reconsider, such as the

Service motion here, require that the moving party state the reasons

for the motion and support such reasoning by any pertinent precedent

decisions. 8 C.F.R. § 3.8 (1990). Accordingly, the Service has submit-

ted the following reasoning and precedent in support of its motion.

First, the Service briefs in support of reconsideration stress

repeatedly that this Board was under a misunderstanding when we

concluded in our prior decision that "no further evidence is likely to

be presented on the deportability issue." The Service urges that the

case was unnecessarily terminated based upon this misunderstanding.

However, there was no misunderstanding. As our prior decision

indicates, the Board was aware that certain additional evidence, of

unknown probity, existed. The respondent made known that he would

move to suppress any such evidence if the Service attempted to

introduce it. Had the Service nonetheless wished to introduce addi-

tional evidence, it could have attempted to do so in the first instance,

or, it could have requested a continuance for that purpose as a basis for

opposing interlocutory consideration of the case. Faced with these

options for presenting additional evidence, the Service chose neither,

but elected rather to argue its case on the sole basis of the respondent's

silence. We are satisfied that the Service had every reasonable

opportunity to present all the evidence it wished but did not avail itself

of this opportunity, for reasons of its own. If the Service had other

intentions, it could have acted upon them in the manner described

above.

Arguably, it is unfair to a party who possesses additional evidence,

to abruptly take away, through an interlocutory ruling, the opportunity

to present that evidence at the expected continuation of the hearing.

This is the essence of the Service argument here. However, as we have

related above, this is not what occurred. Rather, the hearing below was

complete as far as the issues in dispute were concerned. The

immigration judge found that the evidentiary issue was resolved. The

Service did not suggest in its brief on interlocutory appeal that it

wished to introduce additional evidence, or that as a procedural

matter, the respondent's request for termination of the proceedings

should be denied for that reason. Instead, the Service rested on the

merits of its case. The issue thus presented was dispositive, was

important for the proper administration of the immigration laws, and

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was admittedly an issue recurring in other cases. We therefore decided

the issue and properly terminated the proceedings.

Second, the Service argues that in electing to decide the case upon

interlocutory appeal, the Board lacked the important contextual

foundation of a transcript of the oral arguments, the representations of

the parties, and the rulings of the court. The Service does not,

however, explain what relevant representations were made below, nor

what rulings were delivered, which might have shed additional light on

the issues we decided in our prior consideration of the case. We

observe that on the contrary, the interlocutory appeal was well-briefed

by both parties, and the facts regarding the issue to be decided were

not in dispute. The Service has not here called any of these facts into

question. In fact, the concerns the Service raises by its argument are

precisely those which we take into account when initially deciding

whether to accept an interlocutory appeal. We therefore find this

argument for reconsideration unpersuasive.

Third, the Service argues that termination of the case, and possibly

of all cases similarly situated, is an administrative hindrance and thus

will run against the very goals this Board pursues in accepting

interlocutory appeals—namely assuring the proper administration of

the immigration laws. This argument would appear to assume that the

proper administration of the immigration laws in this context consists

essentially in administrative efficiency in removing unauthorized

persons from the United States. This is indeed an important aim,

which it is the duty of the Service to pursue. However, we observe that

the proper administration of the immigration laws embraces other

goals as well, such as insuring that proceedings are fair, that the legal

rights of all parties are observed, that relevant burdens of proof are

met, and that persons who are to be removed from the United States

are clearly deportable aliens. Certain deficiencies in this respect led us

to terminate the proceedings in this case.

The Service argument also implies that if our prior decision is

affirmed, proceedings in this and all similar cases will, in fact, be

reinstituted anyway, and that this will require unnecessary duplication

of effort by the Service. At present, this assumption is entirely

speculative.' We do not find that such speculation warrants reconsid-

eration of the disposition of the case.

Fourth, the Service argues that to reopen this case would advance

'The Service alleged that the respondent is a Salvadoran who is not legally in the

United States. We note that section 303 of the Immigration Act of 1990, Pub_ L. No

101-649, 104 Stat. 4978, provides certain qualified Salvadoran nationals with temporary

protected legal status in the United States for 18 months, subject to discretionary

extensions by the Attorney General under section 302(b)(3)(C) of that Act.

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the policy behind certain regulations, and that the Board must reopen

the case in order to avoid manifest unfairness to the Service. In

support of these contentions, the Service cites regulations which state

that it may, at the appropriate time during the proceedings, introduce

additional charges of deportability, and/or additional factual allega-

tions. 8 C.F.R. §§ 3.28 and 242.16(d) (1990). The Service further

submits a precedent decision in which this was actually done after a

decision had been rendered. See Matter of Loo, 13 I&N Dec. 182 (BIA

1969). However, in the instant case, the Service does not seek to

advance additional charges of deportability, nor does it seek to

advance additional factual allegations. The Service does not wish to

modify its case against the respondent at all, but rather requests the

opportunity to make a second effort at proving the same allegations

and charge which have already been advanced unsuccessfully. There-

fore, even if we were willing to regard the Service request as having

been made at an appropriate time, these regulations, and the precedent

represented by Matter of Loo, would not support the Service argument.

Finally, the Service contends that the case of Zamora Morel v. INS,

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905 F.2d 833 (5th Cir. 1990), supports its argument that failure to

reopen the instant case would be unfair. In that case, the petitioner had

been found deportable on multiple charges and applied for relief from

deportation. However, one of the charges was dropped when the

Service attorney, in consultation with the immigration judge, physical-

ly scratched out one of the charges of deportability on the amended

Order to Show Cause. As a result, it appeared that the petitioner may

have become eligible for an additional form of relief. However, this

fact went unnoticed. Both parties rested, and the immigration judge

announced that he would retire briefly to prepare a decision. Only then

did the petitioner's attorney realize that the petitioner was apparently

eligible for relief. He asked the immigration judge to consider this new

issue. The immigration judge ruled that the request was untimely.

However, the Circuit Court of Appeals reversed. The court held that to

consider the petitioner's request untimely was to destroy his only

reasonable opportunity for presenting his case for relief at the hearing.

In so holding, the court stated, "[T]he alien should bring the request

before the 1.1 as soon as there is realization of the possibility of such

relief." Id. at 839. The court found that the petitioner had done so and

was entitled to a hearing on the issue raised.

The Service argues that, like Zamora-Morel v. INS, supra, the

instant case involves a party, namely the Service, which seeks to

continue the case because it has been confronted suddenly with an

important and unforeseen change in circumstances, namely, our

decision upon interlocutory appeal. Thus, the Service argues, its only

opportunity to properly present its case has been unfairly destroyed.

Interim Decision #3143

We are not persuaded by this analogy. In contrast to Zamora-Morel,

the Service in the instant case had ample time to consider the

implications of an interlocutory ruling, as we have recounted above.

The Service was in possession of the respondent's brief, requesting

termination of the proceedings. The Service filed a lengthy brief in

response but did not argue that it wished to introduce additional

evidence of deportability. Instead, the Service elected to proceed

without such evidence. Thus, the Service did not act "as soon as there

[was] realization of the possibility," as in Zamora-Morel v. INS, but

rather made a conscious choice not to introduce additional evidence.

We therefore do not find that Zamora-Morel v. INS lends persuasive

support to the Service's motion to reconsider. 2

In contrast to both Zamora-Morel v. INS, supra, and Matter of Loo,

supra, the moving party here seeks an opportunity to introduce

evidence regarding only the charge and allegations which have already

been adjudicated. In this respect, the Service request is actually a

motion to reopen the case. Like reconsideration, reopening is a

discretionary remedy. However, a party who seeks reopening must

state the new facts to be considered at the reopened hearing and must

support the motion with affidavits or other evidentiary material.

Reopening will not be granted unless it appears that the evidence

sought to be offered was not available and could not have been

presented at the prior hearing. 8 C.F.R. §§ 3.2, 3.8 (1990); see also INS

v. Abudu, 485 U.S. 94 (1988); INS v. Rios-Pineda, 471 U.S. 444 (1985);

INS v. Wang, 450 U.S. 139 (1981); M.A. v. INS, 899 F.2d 304 (4th Cir.

1990); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), affd,

692 F.2d 595 (9th Cir. 1982). Here, the Service has not fulfilled these

requirements. The evidence it seeks to introduce was available but was

deliberately withheld in the prior proceedings, and the motion,

admittedly intended as a motion to reconsider, is not supported by

affidavits or other evidentiary material. Therefore, we find that neither

the procedure required in Zamora Morel v_ INS, supra, nor that

-

employed in Matter of Loo, supra, justifies reopening or reconsider-

ation here.

In view of all of the foregoing, the Service motion to reconsider will

be denied, and our prior decision in the case will be affirmed.

ORDER: The motion is denied.

2 1n addition, unlike the instant case, no decision had yet been rendered in Zamora-

Morel v. INS, supra, when the petitioner asked the immigration judge to consider the

new issue. The court reasoned that, since a motion to reopen would have been improper

at that point, the request for consideration of the issue was not untimely, and, indeed, it

would have been improper for the petitioner not to raise the issue immediately. Id. at

839. In the instant case, on the other hand, a decision on the relevant issue has already

been rendered, after full briefing by both parties.

249