# Interim Decision #3225

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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,
0A1

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

Interim Decision #3225

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.
Rd7

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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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Interim Decision #3225

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."

R49

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