SIPUS

Interim Decision #2172

MATTER OF SIPUS

In Deportation Proceedings

A-14293683

Decided by Board November 10, 1972

(1) A mere showing that an alien has achieved the minimum statutory period of

continuous physical presence for suspension of deportation does not, without

more, justify granting a motion to reopen the deportation proceedings to

permit an application for suspension.

(2) A motion to reopen the proceedings should disclose all prior and pending

judicial litigation in the case.

CHARGE:

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

visitor—remained longer than permitted.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Hiram W. Kwan, Esquire William S. Howell

840 North Broadway Trial Attorney

Los Angeles, California 90012

(Brief filed)

This is an appeal from an order of a special inquiry officer

denying the respondent's motion to reopen the deportation pro-

ceedings to allow her to file an application for suspension of

deportation under section 24.41(aX1) of the Immigration and Nation-

ality Act. Oral argument, which is requested, is no longer available

as a matter of right on such an appeal, 8 CFR 3.1(e). Oral

argument will be denied and the appeal will be dismissed.

Respondent is a 51-year-old married female alien, a native and

citizen of the Philippines, who was admitted to the TiTnited States

on July 26, 1965 as a nonimmigrant visitor and remained longer

than permitted. At a hearing before a special inquiry officer on

January 28, 1969, she admitted the factual allegations of the order

to show cause, conceded deportability and applied for voluntary

departure. The special inquiry officer found her deportable and

granted voluntary departure to March 1, 1969. She failed to

depart.

On April 29, 1972, counsel filed a motion to reopen the proceed-

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Interim Decision #21'72

ings so that respondent might file an application for suspension of

deportation. Attached to the motion was a filled-out suspension

application. The motion to reopen, which is unsupported by any

affidavit or other evidence, is extremely brief. Its essence is

contained in two short paragraphs:

[III] Respondent is statutorily eligible for suspension of deportation having

first entered the United States in March 1962. It is believed her case falls

squarely within 12 I. & N. Dec. 271.

[IV] Counsel is prepared to present the necessary evidence at the time of

hearing.

The suspension application recites that respondent first entered

the United States as a visitor on March 27, 1962 and was absent

thereafter but once, from December 1964 to the date of her last

entry on July 26, 1965. The Service's trial attorney opposed the

motion on the ground that this absence of almost eight months

broke the continuity of the seven years' physical presence required

by section 244(a)(1) of the Act. The special inquiry officer agreed

and denied the motion in his order dated May 23, 1972, now before

us on appeal.

The issue raised on appeal is now moot. More than seven years

have now elapsed since respondent's last entry on July 26, 1965.

We therefore need not consider whether her preceding absence

broke the continuity of her physical presence following the 1962

entry. Since she can now establish the minimum required period of

physical presence, we would ordinarily reopen and remand if her

motion papers made out a prima facie case for reopening in other

regards. In our view, they do not.

The motion to reopen, as we have noted, is singularly lacking in

factual detail. The suspension application reflects that respond-

ent's husband, whom she married on December 24, 1942, is a self-

employed farmer in the Philippines. Respondent's five children,

ranging in age from 9 to 27, are natives and citizens of the

Philippines and presumably now reside there since their present

residence is not indicated. Neither the husband nor any of the

children is listed as a permanenL resident alien. Respondent also

lists six brothers and sisters, all natives and citizens of the

Philippines, now also presumably residing there. Since December

1966 respondent has been employed as a domestic and now earns

$125 a week. She states she cannot return to her native land

because of "financial hardship."

As we pointed out in Matter of Lam, Interim Decision No. 2136

(B IA, 1972), continuous physical presence for the minimum statu-

tory period is only one of the eligibility requirements for suspen-

sion of deportation. There are others, including a showing that the

alien's deportation would result in extreme hardship to the alien

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Interim Decision #2172

or other specified family members who are citizens or legally

resident aliens. The pertinent regulations' require that a motion

to reopen shall state the new facts to be proved at the reopened

hearing and shall be supported by affidavits or other evidentiary

material.

No hard and fast rule can be laid down as to what constitutes a

sufficient showing of a prima facie case for reopening. Much

depends on the nature of the case and the force of the evidence

already appearing in the record sought to be reopened. Where that

record is negative or contains adverse factors, a mere statement of

conclusory allegations with respect to the statutory' prerequisites

is seldom enough. Where reopening for suspension purposes is

sought, a mere showing that the alien has at last achieved the

minimum statutory period of continuous physical presence does

not ordinarily, without more, establish the other statutory prereq-

uisites sufficiently to warrant reopening for a plenary hearing. On

the other hand, we have on occasion overlooked the technical

inadequacy of a motion to reopen where the new facts alleged,

when coupled with the facts already of record, satisfy us that it

would be worthwhile to develop the issues further at a plenary

hearing on reopening.

On the record now before us, we cannot infer from the mere fact

that respondent can now establish seven years' continuous physi-

cal presence that she may also be able to prove the prerequisite

extreme hardship if given a chance at a reopened hearing. From

what already appears, it is clear that all her close relatives are in

the Philippines. Respondent's deportation there, far from causing

extreme hardship by separating her from her family, would serve

to reunite her with them. Insofar as concerns the "financial

hardship" which she asserts in her application, it has been consist-

ently held that mere economic detriment, without more, is not

enough to make out the extreme hardship required by the statute,

Kasravi v. INS, 400 F.2d 675 (CA. 9, 1968); Kwan Shick Myung v.

INS, 368 F.2d 330 (C.A. 7, 1966).

If there are other facts in counsel's possession which would tend

to make out a case of extreme hardship, he has not made them

known. The special inquiry officer cannot be expected to act on

conjecture. Counsel's unsupported and conclusory assertion in the

motion that he "is prepared to present the necessary evidence at

the time of hearing" does not tell us or the special inquiry officer

what evidence he is prepared to present and does not satisfy us

that the additional delay entailed in a reopening would likely be

1 Reopening before the Service is governed by 8 CFR 242.22 and 103.5.

Reopening before the Board is governed by 8 CFR 3.2 and 3.8.

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worthwhile. We conclude that the special inquiry officer properly

denied the motion to reopen.

One further aspect of this case should be mentioned. From the

record now before us, it appears that on May 11, 1972, after he had

filed the motion to reopen but before the special inquiry officer had

ruled on it, counsel for respondent filed a petition under section

106(a) of the Immigration and Nationality Act to review the

original deportation order, Sip-us v. INS, 9 Cir., No. 72-1838. On

June 16, 1972, the court entered an order dismissing the petition

for review and dissolving the statutory stay of deportation auto-

matically available under section 106(aX3) of the Act. On June 21,

1972, counsel petitioned the court for rehearing. In his supporting

memorandum, counsel challenged the special inquiry officer's

order now before us on appeal and argued, on the "extreme

hardship" issue, that "[Respondent], at the age of 51 and with no

recent employment history in her native country, would experi-

ence extreme difficulty in finding work of any kind if she were

deported to the Philippines." On June 28, 1972 the court denied the

petition for rehearing.

We mention the court proceedings for two reasons: First, in

court, counsel went into considerably more detail in defining the

extreme hardship claim than he did either before the special

inquiry officer or before this Board on appeal. Even with these

additional details, we are satisfied that a prima facie case for

reopening is not made out.

Second, we note that neither in his notice of appeal dated June

3, 1972, nor in his brief on appeal to this Board bearing the same

date, did counsel mention the proceedings for judicial review then

pending. We have previously pointed out how important it is that

we be informed of court litigation brought by a party to a

proceeding before us which might affect our decision in that

proceeding. See Matter of Wong, 13 I. & N. Dec. 258; 8 CFR 3.8(a).

Prior litigation is important because, among other things, the

judgment entered therein may have res judicator effect. It is

equally necessary that we be informed of pending litigation, so

that we may either withhold or shape our decision in such a way

as not to impinge upon the jurisdiction of the court. If counsel

deliberately withheld this information from us, we could only

regard it as a lack of the good faith which we are entitled to expect

from attorneys who appear before us.

We have no reason to believe that either of the Ninth Circuit's

judgments has conclusive effect on the issue now before us. The

petition for review dismissed by the court's order of June 16, 1972

dealt with the original deportation order and not the special

inquiry officer's order now before us. While counsel sought to draw

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the latter order into the court proceedings in his petition for

rehearing, it is clear that he did not succeed. In denying the

petition for rehearing, the court wrote no opinion. It is fairly

inferable, however, that the court's refusal to entertain respond-

ent's challenge to the special inquiry officer's order was due to

respondent's failure to exhaust her administrative remedy of

appeal to this Board, as required by section 106(c) of the Act. We

see no reason to regard the court's order of June 28, 1972 as an

adjudication on the merits of the issue now before us. Accordingly,

we shall enter an order disposing of the appeal before us on its

merits.

ORDER: The appeal is dismissed.

Warren R. Torrington, Member, Concurring:

I concur in the result, but not in the unnecessary, inaccurate,

and misleading statements which appear in the following para-

graph quoted from the Board opinion.

No hard and fast rule can be laid down as to what constitutes a sufficient

showing of a prima facie case for reopening. Much depends on the nature of the

case and the force of the evidence already appearing in the record sought to

reopened. Where that record is negative or contains adverse factors, a mere

statement of conclusory allegations with respect to the statutory prerequisites is

seldom enough. Where reopening for suspension purposes is sought, a mere

showing that the alien has at last achieved the , minimum statutory Period of

continuous physical presence does not ordinarily, without more, establish the

other statutory prerequisites sufficiently to warrant reopening for a plenary

hearing. On the other hand, we have on occasion overlooked the technical

inadequacy of a motion to reopen where the new facts alleged, when coupled

with the facts already of record, satisfy us that it would be worthwhile to

develop the issues further at a plenary hearing on reopening.

They might create the—wrong—impression that we have the

right to ignore the regulations which govern motions to reopen,

and which are cited in footnote 1 of the Board opinion. We have no

such right. The regulations have the force of law; and it is our

duty to enforce them_ Thus, "a mere statement of conclusory

allegations with respect to the statutory prerequisites" for the

relief sought is not "seldom enough;" it is never enough. The

quoted dictum is in sharp conflict with the letter and spirit of the

clear provisions of the pertinent regulations. Section 3.8 of Title 8

of the Code of Federal Regulations expressly provides in subsec-

tion (a) as follows: ".... Motions to reopen shall state the new facts

to be proved at the reopened hearing and shall be supported by

affidavits or other evidentiary material...." [Emphasis supplied.]

Almost identical provisions govern motions to reopen directed to

an officer of the Service and, in particular, in deportation proceed-

ings to a special inquiry officer. 8 CFR 103.5 and 8 CFR 242.22.

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Similarly, where "reopening for suspension purposes is sought, a

mere showing that the alien has at last achieved the minimum

statutory period of continuous physical presence does not" ever,

"without more, establish the other statutory prerequisites suffi-

ciently to warrant reopening for a plenary hearing." The use of

the word "ordinarily" in the Board opinion appears to me to be

quite misleading.

Finally, the following statement quoted from the Board opinion

is far too broad and general, and is therefore not a correct

exposition of what we can lawfully do: "On the other hand, we

have on occasion overlooked the technical inadequacy of a motion

to reopen where the new facts alleged, when coupled with the facts

already of record, satisfy us that it would be worthwhile to develop

the issues further at a plenary hearing on reopening."

Obviously, a motion to reopen will always be granted where a

failure to reopen the proceedings might result in a gross miscar-

riage of justice. For example, in a matter involving an alien's

application for withholding of deportation to a country in which he

allegedly would be subject to persecution on account of race,

religion, or political opinion, neither a special inquiry officer nor

this Board would dream of denying a motion to reopen because of

some. "technical inadequacy" (as the Board opinion puts it). That,

however, does not mean that we have the general authority to

"overlook" clear violations of, or non -compliance with, the applica-

ble laws and regulations of the United States.

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