Interim Decision #3225

Interim Decision #3225

MATTER OF PENA-DIAZ

In Deportation Proceedings

A-30568827

Decided by Board August 4, 1994

(I) When an alien becomes eligible for a new form of relief from deportation due to the

Immigration and Naturalization Service's intentional lack of enforcement of a final

order of deportation, it is appropriate to consider this factor in deciding whether or

not the proceedings should be reopened in the exercise of discretion and whether the

alien has established statutory eligibility for the relief sought upon reopening.

(2) In granting the respondent's motion to reopen deportation proceedings, consideration and weight were accorded to the Service's affirmative permission for the

respondent to remain in the United States, its failure to show any intent to effect his

deportation if the motion were denied, and its inconsistent actions in granting the

respondent's request for deferred action status and subsequently opposing his motion

to reopen proceedings.

CHARGE:

Order. Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)]—Convicted of controlled

substance violation

ON BEHALF OF SERVICE:

Grace A. Sease

General Attorney

ON BEHALF OF RESPONDENT:

Thelma 0. Garcia, Esquire

301 East Madison Street

Harlingen, Texas 78550

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,

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Interim Decision #3225

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 1-221)

charging the respondent with deportability under section 241(a)(11) of

the Act, 8 U.S.C. § 1251(a)(1 1) (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, 197R, 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.

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Interim Decision #3225

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

Interim Decision #3225

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

'notion 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 fact that the

respondent remained in this country with permission from the Service.

As the immigration judge's perception that the respondent ignored a

valid deportation order provides the basis for the first denial of the

respondent's request for reopening, and because the subsequent

denials adopt the reasoning of the first, we believe this significant

factor may have been overlooked.

Second, it is clear from the record that the respondent has

established the necessary physical presence in the United States and

his good moral character for the qualifying period. The remaining

questions, therefore, are whether the respondent has established a

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Interim Decision #3225

prima facie showing of the requisite "exceptional and extremely

unusual hardship" under section 244(a)(2) of the Act and whether

reopening is warranted in the exercise of discretion.

After careful review of the record, we shall answer both these

questions in the affirmative. The respondent has spent almost half of

his life in this country, has been steadily employed, and owns real

property. In addition, the members of respondent's immediate family

are well established here as members of our society, and we are

mindful that one of his United States citizen children has a congenital

heart defect for which she is undergoing treatment. We would also note

that the evidence of record in support of the instant motion is

voluminous and includes affidavits from the respondent's employer as

well as friends, neighbors, and local law enforcement officials. Finally,

although the respondent's drug-related conviction is his sole transgression, it nevertheless renders him ineligible for any other form of relief

from deportation and further precludes him from again legally

immigrating to the United States, no matter how distant in time it may

become. We would note in passing that, at least one time in the past,

the Service itself viewed the respondent's equities as sufficient to

warrant an administrative grant of deferred action status. Moreover,

these equities have dramatically increased on account of the Service's

actions.

In this regard, the respondent understandably claims that he will

suffer further hardship due to his long-term deferred action status

which, ironically, was accorded to him by the same agency now seeking

his immediate deportation. We would not unhesitatingly agree with

the respondent that this fact constitutes "hardship" in the respondent's case as that term has previously been interpreted by this Board

and the federal courts. However, we do believe that the impact of the

Service's actions in the past warrants some examination in the instant

case.

As noted above, the reasons for the Service's grant of deferred

action status to the respondent in 1980 presumably arose from the

humanitarian concerns in his case. This being so, we are somewhat at a

loss to understand why the respondent should now face such determined opposition to his motion to reopen, since the Service is itself

accountable for the respondent's accumulation of even further equities

in the United States.

While the respondent's case presents compelling circumstances, our

receipt of motions to reopen by other aliens who have become eligible

for additional forms of relief after the entry of a final order of

deportation is increasing. In this respect, we first note the general rule

that aliens should not be rewarded for time spent pursuing frivolous

appeals and that motions to reopen made in this context are properly

Interim Decision #3225

denied as a matter of discretion. See, e.g., INS v. Rios-Pineda, 471 U.S.

444 (1985); Matter of Barocio, 19 I&N Dec. 255 (BIA 1985); Matter of

Lam, 14 I&N Dec. 98 (BIA 1972). The cases we are referring to,

however, involve aliens who have remained in the United States after

the issuance of a final order of deportation, with no apparent effort on

the part of the Service to remove them from this country. It therefore

seems reasonable that, when an alien's eligibility for a new form of

relief from deportation arises due to the Service's deliberate failure to

enforce a final deportation order, it is equally appropriate to consider

this factor in deciding whether or not the proceedings should be

reopened in the exercise of discretion. In a case such as the

respondent's, where the Service has affirmatively permitted the alien

to remain, the equities in the alien's favor become particularly strong.

Our inquiry, however, does not end here. Before a motion or any

form of discretionary relief may be granted, an alien must first

establish statutory eligibility therefor, only then does the issue of the

proper exercise of discretion present itself. INS v. Abudu, supra. In this

respect, we further find that the Service's decision not to enforce an

outstanding order of deportation could have an effect on the hardship

determination in some cases, in addition to being a positive factor in

the exercise of discretion. If the denial of a motion will likely result in

an alien simply being left in limbo with no further action taken to

remove him or her from the United States, that state of continuing

uncertainty in life may be a matter appropriate to be considered in

evaluating whether the denial of the motion will result in hardship.

In sum, in the context of a motion to reopen for suspension of

deportation, we may consider the actions of the Service with respect to

its enforcement or intentional lack of enforcement of a final order of

deportation in deciding whether an alien has established a prima facie

case of "extreme hardship" as required under that provision. See

Matter of Coelho, supra. If such hardship is found to exist, we shall also

consider the Service's actions in deciding whether such a motion

should be granted in the exercise of discretion. In cases such as the

respondent's, in which the Service has affirmatively permitted the

alien to remain, the equities may well favor a subsequent request to

reopen proceedings. On the other hand, aliens who intentionally flout

lawful orders of deportation or who obtain their eligibility for

additional forms of relief due to dilatory tactics will likely not be found

to merit the favorable exercise of discretion required for reopening of

deportation proceedings. INS v. Rios-Pineda, supra; Matter of Barocio,

supra.

Turning to the facts of the instant case, we conclude that the

respondent has made a sufficient prima facie showing of exceptional

and extremely unusual hardship and has established that the reopening

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of his deportation proceedings is warranted as a matter of discretion.

See Matter of nderson, 16 I&N Dec. 596 (131A 1978). In this respect,

we find that the Service's affirmative permission for the respondent to

remain and its failure to show any intent to effect his deportation if the

instant motion is denied contribute to the respondent's other allegations of hardship. In addition, we conclude that the Service's

inconsistent actions in granting the respondent's request for deferred

action status and subsequently opposing his motion to reopen are

properly considered as favorable factors in the exercise of our

discretion. Weighing all of the factors presented, we conclude that the

motion to reopen should be granted.

We caution that this decision is not a determination that the

respondent merits suspension of deportation as a matter of law or of

discretion; that decision will rest with the immigration judge after the

respondent has had an opportunity to present all of the evidence and

arguments in favor of his application for relief from deportation that

he may wish to make. The following orders shall accordingly be

entered.

The appeal is sustained and the deportation proceedORDER:

ings are reopened.

The record is remanded to the immiFURTHER ORDER:

gration judge for further proceedings.

CONCURRING IN PART AND DISSENTING IN PART

Michael J. Heilman, Board Member

I respectfully concur in part and dissent in part.

It appears to me that the majority may be sowing a bit of confusion

in its blending of two completely distinct issues: the Immigration and

Naturalization Service's apparent affirmative decision to allow an

otherwise deportable alien to remain in the United States, and whether

the alien has established "exceptional and extremely unusual hard- ,

ship" for purposes of section 244(a)(2) of the Immigration and

Nationality Act, 8 U.S.C. § 1254(a)(2) (Supp. IV 1992). In particular.

the following passage in the majority opinion seems to hold that the

Service's decision to grant "deferred action" status or to grant

extended stays of deportation enhances the claim of hardship:

In sum, in the context of a motion to reopen for suspension of deportation under

section 244 of the Act, we may consider the actions of the Service with respect to its

enforcement or intentional lack of enforcement of a final order of deportation in

deciding whether an alien has established a prima tame case of "extreme hardship" as

required under that provision. See Matter of Coelho, supra. If such hardship is found

to exist, we shall also consider the Service's actions in deciding whether such a

motion should be granted in the exercise of discretion.

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The first sentence appears to state that the "actions of the Service"

are relevant to whether the applicant for suspension has established

extreme hardship_ The second sentence seems to hold that the

Service's actions are relevant to the exercise of discretion in granting

the motion to remand. These are separate issues. I prefer not to leave

the impression that the Service's decision to allow a deportable alien to

remain in the United States somehow increases hardship. This does

not appear to me to be logical. It is certainly true that extending one's

physical presence in the United States could lead to circumstances that

would make it harder to eventually leave. I fail to see, though, how the

Service's ill advised or well advised decision to let someone remain

affects the quality or quantity of hardship that person might experience upon deportation. This becomes clear if we examine the case of

two individuals who have both remained in the United States for 20

years, the first as a beneficiary, in part, of "affirmative' Service

actions, the other not. Assuming identical circumstances, how is it that

the recipient of Service largesse has had his hardship increased over

that of his similarly situated counterpart? Yet, this is the apparent

conclusion of the majority, when it states:

-

-

In this respect, we find that the Service's affirmative permission for the respondent

to remain and its failure to show any intent to effect his deportation if the instant

motion is denied contribute to the respondent's other allegations of hardship.

If the majority believes that the Service's "permission to remain"

contributes to his hardship, this can only mean that this permission

has increased his hardship. The cause and effect relationship eludes

me. The Service has not become an agent of hardship because it has

done the respondent a favor. Hardship is either inherent in the

respondent's circumstances or it is not, and it hardly matters what

reason the Service had in allowing him to remain, whether the product

of indifference or sympathy. If the hardship accrued during the extra

time the respondent remained in the United States because the Service

failed to deport him due to since-regretted kindness, this is entirely

fortuitous. The same amount of hardship might have accrued if the

respondent had evaded deportation, or had simply been ignored, the

latter situation being the altogether more common case. If, for

instance, the respondent had had two more children born to him

during this time, he might say that he would not have fathered them if

the Service had not allowed him to remain. An individual who had

ignored an order to depart might also have had two children and also

claim this fact as evidence of extra hardship. In either case, it is first

necessary to establish that the birth of two extra children will increase

the hardship of deportation.

I would agree with the majority that in exercising our discretion as

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to whether to reopen we can consider the Service's role in the

respondent's continued presence. But this issue only arises after we

have considered the statutory issue of hardship. Surely in considering

the Service's opposition to this motion, it is fair to consider the

manner by which the respondent accrued his extra presence. We have,

in other cases, considered as an adverse factor in exercising our

discretion, whether, for example, a respondent has been ordered to

report for deportation and has absconded or failed to comply with that

request. The situation in this case is rather the other side of the coin,

where, upon his request, the respondent was told he could remain, and

so he can arguably present a somewhat more laudatory explanation for

why he did not leave when ordered deported.

While I can agree that reopening is warranted on the basis of the

information contained in the motion to reopen, I would not agree that

the degree of hardship has been increased by the Service's actions, and

I do not join in that portion of the majority opinion.

CONCURRING OPINION: David B. Holmes, Alternate Board

Member

I respectfully concur.

I concur in the majority opinion, but would add the following

comment. In evaluating the level of hardship that may result from the

enforced departure of an individual from the United States, it is my

view that normal human expectations may well be a factor to be

considered. If a person has been in this country for 20 years and has

accumulated equities while hiding from the authorities, that person

likely understands that his or her continued presence here could easily

hang by a very slender thread. If another person has remained here for

20 years accumulating identical equities while his or her presence was

openly known and tolerated by the Immigration and Naturalization

Service, he or she reasonably could have a whole different degree of

expectation regarding the future. To my mind, it is likely that the

emotional hardship resulting from an enforced departure from this

country would be far greater in the latter case than in the former.

While this consideration ultimately may or may not be significant in a

given case, I would not foreclose its inclusion as a relevant factor to be

considered in evaluating whether or not an alien's enforced departure

would result in an "extreme hardship."

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