Petition for Writ of Certiorari — INS v. Rios-Pineda

OCTOBER TERM, 1983

IMMIGRATION AND NATURALIZATION SERVICE,

PETITIONER

v.

BERNARDO RIOS-PINEDA

AND

ESTARNILADA RIOS-PINEDA DE RIOS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Rex E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

ELLIOTT SCHULDER

Assistant to the Solicitor General

JAMES A. HUNOLT

Attorney

Department of Justice

Washington D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Attorney General and his delegates

have discretion to deny an alien’s motion to reopen de-

portation proceedings for the purpose of seeking sus-

pension of deportation under 8 U.S.C. 1254(a)(1) be-

cause the alien has acquired the necessary seven years’

“continuous physical presence” only by filing frivolous

appeals and has in other ways exhibited disregard for

the immigration laws.

(I)

Aguitin v. INS, 700 F-24564 .... << e 16

401 U.S. 921 ee i on cee 4

FPC v. Saute Sener Co., 344 U.S. 17 Gdvtie< 15

H , 344 U.S.

i de Cee Cok cecceéocceces 15

Gonzalez-Cuevas v. INS, 515 F.2d rae 4

v. INS, 554 F.2d 17 Sa rare 16, 17

SE Ee a a 10, 11, 12, 13, 17

INS v. Wang, 450 U.S. 139 = 7. eee 10, 11-12, 13,

16, 17, 18, 19

Jay v. Boyd, 351 U.S. 345 ................-- 11

Kimm v. Rosenberg, 363 U.S. 405 ........... 11

(m1)

Page

hing 20 044 ..... 16

LeBlanc v. INS, 715 F.2d 685 béeeccieeweses ED

Men Keng Chang v. Juigni, 669 F.2d 275 . 16

Meove vw. Es eo 11

Muigai v. INS, 682 F.2d 334 ............... 16

NLRB v. Food Store Employee:

347, 417 U.S. 1 ..... benbonin 15

Gas G, Gy GE Kade cecdsecceacces 17

Pang sere INS, 663 F.2d 417 ....... 16

Ramirez-Gonzales v. INS, 695 F.2d 1208 .... 16

4

17

15

18

8 U.S.C. 1101 et seq.:

ED “acawccccodcetndsoucéee 5

8 U.S.C. — bedeaddemiidesidtecseds 4

13

4

ED oc cede cctlisesddcdebeose 6, 11, 18

(1)

suck period he was and isa person of c

acter, 5 and i is a persor der

1972 (App.. infra, 17a). In early 1974, he returned 10

Mente under Geant of leportation (id. at 2a, ita,

to 8 U.S.C. - 1251CaX2) (AP. infra 2a, iba Ta

a ee Fn

sober 1588 a _ : R.

snd dint ssbeenatbattion ter tehos coeds tech Beson

The immigration judge tented hs request a an appt

summer of 1972 and thus had not been in the

Mr. Rn Pn kof eighty

a inter alia, that respondents had used a professional

20 dapast wallaatasiily puiar to tautitntion of eportatic

nqnant tennant aires eatetetenmatibn ss

ter his departure under the threat of deportation (App., infra,

29a-30a).

Be et cgpeel te Be BEA, serpentente dained tat thelr

tation of their citizen child. The BIA rejected this claim as with-

out merit (App., infra, 22a-23a, citing, e.g., Rubio de Cachu v.

INS, 568 F.2d 625 (9th Cir. 1977); Acosta v. Gaffney, 558 F.2d

1153 (3d Cir. 1977); Gonzalez-Cuevas v. INS, w15 F.2d 1222

975); Faustino v. INS, 432 F.2d 429 (2d Cir. 1970),

cert. denied, 401 U.S. 921 (1971)). Respondents also claimed

that they wer entitled to relief under 8 U.S.C. 1182(c), which

permits relief from exclusion or deportation for “aliens lawfully

admitted for permanent residence.” The BIA found respondents

ineligible for such relief because they had never been admitted

5)

2. In July 986 ) suapentente Sid a peifien far sv

tation pursuant to 8 U.S.C 1106a(aX3).

. oe ee ee

cal present inthe United States fora continous Pe

Se) ict oh te tae of ie saa oi

Sonzalez v. INS, 647 F.2d 457, 459

their responses to the questions would violate their privilege

and that respondents submitted no evidence that their testi

mony had been compelled (App., infra, 24a). Indeed, the BIA

observed (ibid ) that counsel had freely conceded respondents

ant to 8 CFR. 242.16. Respondents’ final ergument was that

the order to show cause was invalid as to Mr. Rios-Pineda be-

cause at the time it was issued an application for labor certifica-

tion was pending before a state agency. The BIA held that the

commencement of deportation proceedings against a deportable

alien is a matter within the discretion of the District Director

(App., twfra, 23a).

« Brief for Petitioners at 2-3, Rios-Pineda v. U.S. Depart-

ment of Justice, No. 86-1619 (8th Cir.).

5 Id. at 4.

6

(5th Cir. 1981)). The court directed the Board to hold

the proceedings in abeyance for 60 days to give respon-

dents an opportunity to file a motion to reopen their de-

portation proceedings (App., infra, 20a). In addition,

the court cautioned the Board “to give careful and thor-

ough consideration to the * * * motion to reopen if, in-

deed, one is filed” (id. at 20a n.5). The court stated that

if no motion to reopen were filed within 60 days, the

Board could dismiss the proceedings (id. at 20a).

3. Respondents filed a motion to reopen, accompan-

ied by applications for suspension of deportation. In

their motion to reopen, respondents alleged that they

had been in the United States for a continuous period of

seven years from the ‘ime of their entry on May 1,

1974, that they are persons of good moral character,

and that deportation would result in extreme hardship

to them and their citizen children (R. 17-18). With re-

spect to the latter claim, respondents alleged that their

two citizen daughters, then seven and three years of

age, would be deprived of their rights to an education

in United States schools and to social assistance if re-

7

(R. 20-41). Apart from their allegations of hardship, re-

spondents pointed to certain language in the court of

appeals’ decision which, they asserted, showed that the

court had already accepted their extreme hardship

claim (R. 19).®

The BIA denied respondents’ motion to reopen

(App., infra, 1la-15a). It held that respondents failed

to make a prima facie showing of extreme hardship nec-

essary to establish eligibility for suspension of deporta-

tion (id. at 13a-14a). The Board noted that respondents

had submitted no affidavits in support of their extreme

hardship claim (id. at 13a). It examined “the documents

and the vague allegations forwarded by counsel” and

concluded that they were not sufficient to establish a

prima facie showing of extreme hardship (id. at

13a-14a).

In addition, the Board concluded that the motion to

reopen should in any event be denied in the exercise of

its discretion (App., infra, 14a-15a). The BIA ob-

served, in this regard, that respondents were able to

ire seven years’ presence and the equity of a sec-

ond child only by pursuing what it considered to be friv-

olous appeals, and it concluded that denial of a motion

relief is acquired only by means of such dilatory tactics

(id. at 14a). The BIA also noted that respondents en-

tered the United States in May 1974 with the assistance

of a paid smuggler and that on that occasion Mr. Rios-

Pineda was returning within only two months of a

* The portion of the court of appeals’ opinion relied on by re-

spondents stated (App., infra, 19a):

8

forced departure after he had failed to depart voluntar-

ily (id. at 14a-15a). Concluding that these adverse fac-

tors outweighed the equities in respondents’ favor, the

BIA denied the motion to reopen as a matter of discre-

tion (id. at 15a).

4. The court of appeals again reversed and remanded

(App., infra, la-10a). The court concluded that it had

implicitly decided respondents’ extreme hardship claim

in their favor in its earlier decision and that this deter-

mination was binding on the Board as the “law of the

case” (App. infra, 5a-7a). The court reviewed the fac-

tors supporting its earlier “holding” that respondents

had established a prima facie case of extreme hardship

and concluded that that holding was not clearly errone-

ous (id. at 7a).7

In the alternative, the court of appeals ruled that

even if respondents’ prima facie eligibility for suspen-

sion of deportation had not been decided by the court in

its prior opinion, the Board abused its discretion in

declining to find that respondents had made a sufficient

showing of extreme hardship to warrant recpening of

their deportation proceedings (App., infra, 7a-8a n.3).

The court pointed out that Mr. Rios-Pineda had claimed

his mother, a resident of Mexico, as a dependent on his

federal income tax returns and that the Board had

never considered the hardship to respondents that de-

portation might entail with respect to respondents’ abil-

ity to continue su ing Mr. Rios-Pineda’s mother

(id. at 7a n.3). as Coeenes epnetoat the

Board failed to consider possibility that respon-

dents’ citizen children only speak English, thus yn cata

ing the educational and social hardship if they are

a re

n.3).

7 These factors were that Mr. Rios-Pineda had been regularly

employed since 1974, that respondents had made a substantial

down payment on a home, and that their citizen children had

lived in the United States since birth (App., infra, 7a).

* The court of failed to mention that respondents’ mo-

tion to reopen not refer to respondents’ obligation to sup-

\

9

The court of appeals also held that the BIA’s discre-

tionary denial of respondents’ motion to reopen was

based on improper factors (App., infra, 8a-9a). The

court disagreed with the BIA’s characterization of re-

spondents’ appeals as “frivolous,” noting that the court

had “twice considered petitions which, regardless of

their ultimate success, have required further proceed-

ings to fully and fairly decide the [respondents’} claim of

their right to stay in this country” (id. at 9a). In addi-

tion, the court concluded that the Board erred in rely-

ing on respondents’ “disregard” of the immigration

laws, as manifested by their use of a paid smuggler and

by Mr. Rios-Pineda’s repeated refusal to depart volun-

tarily, because “(such ‘disregard’ is necessarily present

in some form in most deportation proceedings” (ibid).

REASONS FOR GRANTING THE PETITION

Since respondents’ entry with the assistance of a pro-

fessional smuggler in 1974, they have never lawfully

been in the United States. After Mr. Rios-Pineda’s ap-

prehension, the INS granted him ample opportunity to

return voluntarily to Mexico in lieu of deportation, but

he failed to depart. At their deportation hearing in De-

cember 1978, both respondents conceded deportability

and were ordered deported. Respondents succeeded in

avoiding deportation, however, by seeking discretion-

ary relief from deportation despite their ineligibility for

such relief and by filing frivolous appeals. By these dila-

tory tactics, respondents managed to satisfy the seven-

year eligibility requirement for suspension of

deportation.

The court of appeals has concluded that the Attorney

General may not exercise his discretion to deny respon-

dents’ motion to reopen based on their resort to dila-

tory tactics and their blatant disregard of the immigra-

port Mr. Rios-Pineda’s mother and did not allege that respon-

dents’ daughters only speak English.

10

tion laws. The decision below means that for respon-

dents and other deportable aliens, the use of adminis-

trative and judicial review procedures for purposes of

delay not only will be condoned, but will in fact be

rewarded.

This case thus presents an important question con-

cerning the nature and scope of the Attorney General’s

authority to deny a deportable alien’s motion to reopen

deportation proceedings as a matter of administrative

discretion, without regard to whether the alien has es-

tablished a prima facie case of eligibility for the ulti-

mate relief sought. This Court has held that the Attor-

ney General and his delegates may exercise their

discretion to deny an alien’s request for extraordinary

relief regardless of eligibility. INS v. Bagamasbad, 429

U.S. 24 (1976). In addition, the Court has adverted, in

recent cases, to the broad discretion enjoyed by the At-

torney General and his delegates in deciding whether to

grant or deny a motion to reopen. INS v. Phinpathya,

No. 82-91 (Jan. 10, 1984), slip op. 5 n.6; INS v. Wang,

450 U.S. 139, 143-144 n.5 (1981). The decision «f the

court of appeals, unless overturned, would severely re-

strict that broad discretion with respect to the thou-

sands of motions to reopen filed each year by de-

portable aliens.

1. Both the ultimate relief requested by respondents

(suspension of deportation) and the procedure by which

they are attempting to obtain that relief (a motion to

reopen deportation proceedings) are designed to deal

In order to be eligible for suspension of deportation,

an alien must have been physically present in the

United States for a continuous period of seven years,

must have been a person of good moral charcter during

that time, and must be able to show that his deporta-

tion would cause “extreme hardship” to himself or to

citi-

zen or an lawfully admitted for permanent resi-

dence. 8 U.S.C. 1254(a)(1). The “extreme hardship” and

11

“continuous physical presence” requirements both re-

flect the exceptional nature of the suspension remedy.

See INS v. Wang, 450 U.S. at 145; INS v. Phin-

, slip op. 7. If an alien meets all three eligibility

requirements, the Attorney General must then decide

whether suspension relief is warranted in the exercise

of his “unfettered discretion.” Jay v. Boyd, 351 U.S.

345, 354 (1956). See Kimm v. Rosenberg, 363 U.S. 405,

408 (1960). The Attorney General need not even decide

whether an alien has satisfied the statutory eligibility

requirements, however, where he determines that the

alien’s application would be denied as a matter of dis-

cretion. See INS v. Bagamasbad, supra; LeBlanc v.

INS, 715 F.2d 685, 688-692 (lst Cir. 1983); Moore v.

INS, 715 F.2d 18, 16 n.2 (1st Cir. 1983).

As this Court observed in INS v. Wang, 450 U.S. at

140-141, the Immigration and Nationality Act does not

expressly provide a vehicle for reopening deportation

after a final order of deportation has been

issued. The INS, however, has provided by regulation

for such a procedure. 8 C.F.R. 3.2, 3.8.° The regulations

permit the BIA to reevaluate its prior disposition of

cases in which significant developments have occurred

subsequent to the hearings and decisions therein. This

Court in Wang addressed the nature of the BIA’s dis-

* 8 C.F.R. 3.2 provides in pertinent part:

Motions to reopen in deportation proceedings shall not be

granted unless it appears to the Board that evidence

to be offered is material and was not available and

12

cretionary authority over motions to reopen. The Court

stated (450 U.S. at 143-144 n.5):

If INS discretion is to mean , it must

be that the INS has some latitude when

to reopen a case. The INS should have the to

be restrictive. Granting such motions too

13

cat ef hand by the BIA (ADP. infra, 212-242

mente that had been rejected by the BIA.** In xdditio:

ee oe ee

pte od wh rns ;

they were in custody. and they presented no evidence that thei

as the BIA observed in rejecting this claim (App., infra, 24a),

respondents were represented at the hearing by counsel who

review. ~ This decision con-

Se pondent:

the “extreme hardship”

authority to issue such a “holding.” If the court in fact invended

00 OS ee ee ote

of deportation, “it usurped an administrative function.” FPC v.

Idaho Power Co., 344 U.S. 17, 20 (1962). See South Prairie

Construction Co. v. Local No. 627, International Union of Op-

erating Engineers, 425 U.S. 800, 805-806 (1976); NLRB v. Food

Store Employees Union, Local 347, 417 U.S. 1, 16 (1974). It

therefore follows that the court below could not properly rely on

its earlier “holding” as support for the proposition that respon-

dents’ prior appeals were not frivolous.

6 F 2am Ageme INS, 700 F.2d 564,

Cir. 1983); Muigai v. INS, 682

1982); Men Keng Chang v. Jiugni, 669 F.2d 275,

(5th Cir. 1982); Pang Kiu Fung v. | 2d

419 (2d Cir. Mea, Sithns w. INS,

645 (3d Cir. on

a8?

eB

=e

cme ae for this ==

v. INS, 7s Fi at 68; Agate. INS, 700 F.2d at

ang (450 U.S. at 143-144

deny reopening wheres undputed that the aber

tru where the motion to reopen is forthe purpose of

INS, 613 F.2d 51, sot (th Ci 1980) Hibbert.

eber v. INS, 520 F.2d 44

BEN pd eybnns te 7 Aggy wong =

s “‘right to be restrictive’ 7 x ay: my

** We note that if the court of appeals had upheld the BIA’s

reasonable exercise of discretion in denying the motion to reo-

First, the court’s reliance on the “law of the case” doctrine is

misplaced becavse, as we have already pointed out (see note 12,

supra), if the court in its imitial decision in fact held that re-

made oat a prima facie case, it acted outside the

pny gee kg ye he eer +o yt

le authorities in passing on applications for sus-

pooh

deportation.

biishod prime facio alighiity in their Gition ts seopen, io 2

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1894

BERNARDO RI0S/PINEDA AND

ESTARNILADA RIOS/PINEDA DE RIOS, PETITIONERS,

Vv.

UNITED STATES DEPARTMENT OF JUSTICE,

IMMIGRATION & NATURALIZATION SERVICE,

RESPONDENT

Submitted: March 16, 1983

Filed: Nov. 9, 1983

ON PETITION FOR REVIEW OF

ORDER OF IMMIGRATION AND

NATURALIZATION SERVICE

Before HEANEY and FAGG, Circuit Judges, and

HANSON, * Senior District Judge.

HEANEY, Circuit Judge.

This case is before us for a second time. The petition-

ers are Bernardo Rios-Pineda and his wife, Estarnilada

Ramos de Rios. We are asked in this petition to review

the July 16, 1982, decision of the Board of Immigration

Appeals denying the petitioners’ motion to reopen de-

* The HONORABLE WILLIAM C. HANSON, Senior Dis-

trict Judge for the Northern and Southern Districts of Iowa, sit-

ting by designation.

2a

portation proceedings against them. We do not consider

the instant petition in a vacuum. We are aware, as

were both parties at oral argument in March of this

year, of recent legislative action which would render it

moot. Specifically, proposals to reform our federal im-

migration laws, backed by the present executive admin-

istration and twice passed by the United States Senate,

would grant amnesty from deportation to millions of im-

-migrants presently within our borders. See 129 Cong.

Rec. 86905-S6987 (daily ed. May 18, 1983) (considera-

tion and passage of S. 529, 98th Cong., Ist Sess.

(1983)). The petitioners would be beneficiaries of this

much-awaited legislation. Because it is increasingly ap-

parent that the House of Representatives will not act

on these proposals this year, however, we have no

choice but to decide this case based on an immigration

policy embodied in laws passed in substance over two

decades ago.

Bernardo Rios-Pineda entered this country for the

first time in the summer of 1972. He returned to

Mexico for approximately two months in 1974. On May

1, 1974, he and his wife entered the United States with-

out inspection at San Ysidro, California, and soon made

their way to Omaha, Nebraska. Bernardo has worked

at Union Packing Company in Omaha since 1974. The

petitioners have two daughters born in Omaha as

United States citizens: Ana Belia, who is now nine

years of age; and Brenda Lee, who is four years old.

The Immigration and Naturalization Service (INS) is-

sued orders to show cause why the petitioners should

not be deported in October of 1978. After a deportation

hearing on December 12, 1978, an on gem judge

denied, inter alia, Bernardo’s for suspen-

sion of deportation under 8 U.S.C. § 1254(a\1) (1982)

(as amended). Section 1254(aX(1) provides that the At-

torney General may suspend the deportation of a per-

3a

son not lawfully admitted into the country if that

person

has been physically present in the United States

Id.

The immigration judge—acting for the Attorney Gen-

eral’s delegate, the INS—denied Bernardo’s application

under this section solely because he failed to meet the

seven-year continuous presence requirement. The

Board of Immigration Appeals (Board) dismissed the

petitioners’ appeal from this decision on May 30, 1980.

We reviewed the Board’s May 30, 1980, dismissal in

our first opinion on this case, Rios-Pineda v. United

States Department of Justice, 673 F.2d 225 (8th Cir.

1982). In that opinion, we noted that both Bernardo and

Estarnilada met the seven-year continuous presence re-

quirement while the petition for review was under con-

sideration by our Court. Citing Vargas-Gonzalez v.

INS, 647 F.2d 457 (5th Cir. 1981), and outlining the pe-

titioners’ employment and family situation, we con-

cluded “that Bernardo and Estarnilada * * * have

‘made a substantial showing that the Board should

properly afford [them] relief on the basis of the addi-

tional evidence available subsequent to the initial hear-

ing.’” Rios-Pineda vy. United States Department of Jus-

tice, supra, 673 F.2d at 227. Accordingly, we reversed

the Board’s decision and granted the petitioners sixty

days in which to file a “motion to reopen” their deporta-

tion proceedings, at which time the Board was directed

to “promptly consider and rule upon their claim that

they are entitled to suspension of deportation under 8

U.S.C. § 1254(a)(1).” Id. at 228 (footnote omitted).

i

!

7

i

z

:

E

#8

:

:

3

g

'

help them avoid inspection [in 1974] and by failing to

depart voluntarily.”

On petition for review of the Board’s July 16, 1982,

decision, Bernardo and Estarnilada contend that the

Board abused its discretion in summarily denying their

motion to reopen. They assert that the motion and sup-

porting exhibits were filed with

2

:

HE

S

contentions and remand to the Board to grant their mo-

tion to reopen and to afford them an opportunity to

fully substantiate their claims that deportation would

5a

cause extreme hardship to themselves or their United

States citizen children.

First, we hold that their motion to reopen was prop-

erly filed within the constraints set out in our earlier

order of remand. See Rios-Pineda v. United States De-

partment of Justice, supra, 673 F.2d at 228 & n.4.

While we agree that the motion apparently did not

reach the party designated in 8 C.F.R. § 3.8 (1983)

within the sixty-day period set forth in our decision, the

record shows that the motion was received by other

Board officials witiin that time period. A memorandum

from the INS District Director in Omaha to the Board’s

national office on June 24, 1982, acknowledged that the

motion had been mailed directly to the Board on May 7,

1982.' Thus, the Board received the motion within sixty

days of our March 12, 1982, opinion, even though the

precise offizer designated in the regulations was not

forwarded the motion until later. See id. § 3.8(b). We

refuse to give this technical error in filing dispositive

significance in a case of such importance to the petition-

ers and their family.

Next, we agree with the petitioners that the Board

erred in denying the motion to reopen for want of a

prima facie showing of the extreme hardship necessary

to be eligible for section 1254(a)(1) relief. Normally, we

review the Board’s findings regarding a prima facie

case of extreme hardship sufficient to merit reopening

under an abuse of discretion standard. See /NS v.

Wang, 450 U.S. 139, 142, 144-145 (1981) (per curiam);

Diaz-Salazar v. INS, 700 F.2d 1156, 1159-1160 (7th

Cir.), cert. denied, 108 S. Ct. 3112 (1983); Aiyadurai v.

INS, 683 F.2d 1195, 1199 (8th Cir. 1982). Where an is-

sue has previously been decided on appeal, however,

that decision binds a tribunal on remand as the law of

' We assume that the reference to the Board in the text of

this memorandum was to its regional office in Nebraska.

6a

the case unless the decision was clearly erroneous or

would result in a manifest injustice. Otten v. Stonewall

Insurance Co., 588 F.2d 210, 212-213 (8th Cir. 1976).

The “law of the case” doctrine is equally applicable in

instances of remand to administrative agencies and re-

mand to lower courts. City of Cleveland v. Federal

Power Commission, 561 F.2d 344, 346 (D.C. Cir. 1977).

See also Todd & Co. v. SEC, 687 F.2d 154, 156-157 (3d

Cir. 1980).

In the instant case, we concluded that the fulfillment

of the seven-year continuous presence requirement

pending our review merited remand for further pro-

ceedings on the petitioners’ section 1254(aX(1) claims.

Rios-Pineda vy. United States Department of Justice,

supra, 673 F.2d at 227-228. Implicit in this conclusion

was our decision that a prima facie case of extreme

hardship, along with the other requirements of section

1254(aX(1), had already been established; thus, we re-

manded for prompt consideration and ruling on peti-

tioners’ “claim” for section 1254(a)(1) relief, not just for

extra time to file a motion to reopen in the normal

course. Jd. at 228 (emphasis added).* The Fifth Circuit

case cited in support of our remand was likewise one in

which the court found a prima facie case meriting full

consideration on remand. Vargas-Gonzalez v. INS,

supra, 647 F.2d at 459 & n.4. Therefore, our holding of

prime tarts cighity Gracin Manga

"4 We realise that in the closing footnote to our previous opin-

ion, we stated that the Board should give “careful and thorough

cunssteaatton So tap aun iain bo v.

United States Department of Justice, 673 F.2d 225, 228 n.5 (8th

7a

was the law of the instant case, not challenged by the

Board before this Court en bane or on certiorari to the

Supreme Court.

As we view this holding today, we conclude that it is

not clearly erroneous. The only prima facie factor which

conceivably could have been decided against the peti-

tioners after the seven-year continuous presence re-

quirement was met would be the extreme hardship to

the petitioners or their United States citizen children.

The record of this case in 1982 clearly established that

Bernardo had been regularly employed by Union Pack-

ing Company since 1974, and that the petitioners had

made a substantial down payment on a home. Addition-

ally, the petitioners’ citizen children had lived in the

United States since birth. These facts are reinforced by

the exhibits filed by the petitioners on remand after our

1982 decision. And importantly, neither the immigra-

tion judge nor the Board questioned any element of

prima facie eligibility, besides the seven-year prerequi-

site, before our 1982 opinion. These circumstances are

sufficient to support our previous holding of prima facie

eligibility. Furthermore, we find no manifest injustice

to the Board in affirming this holding as the law of the

case, if indeed any such injustice could be experienced

by an agency of the government.*

3 Even were we to hold that the petitioners’ prima facie eligi-

bility for suspension of deportation was not a matter previously

decided by this Court, we would find that the Board abused its

discretion in declining to find the requisite extreme hardship to

merit reopening the deportation proceedings herein. A careful

examination of the exhibits filed with the petitioners’ motion to

reopen reveals that for several years, Bernardo claimed his

mother in Mexico, Guadalupe Pineda, as a dependent on his

United States federal income tax returns. The burden placed on

the petitioners by deporting them in the face of such family ties

and responsibilities has never been considered by the Board. In

addition, the motion to reopen indicates that the petitioners’

United States-born children may only speak English, increasing

8a

Finally, we must address the Board’s exercise of dis-

cretion over and above the establishment of a prima

facie case of eligibility, an issue which we did not con-

sider in our prior decision. The Ninth Circuit has held

that once a prima facie case of eligibility under section

1254(a)(1) is established, the Board abuses its discretion

in refusing to reopen and grant a hearing on the mat-

ter. Villena v. INS, 622 F.2d 1352, 1361 n.12 (9th Cir.

1980); Urbano de Malaluan v. INS, 577 F.2d 589, 593

(9th Cir. 1978). Decisions by other courts intimate,

however, that the Board may exercise the Attorney

General’s discretion, reflected both in statute and regu-

lations, to deny a motion to reopen even after the peti-

tioner has established a prima facie case of eligibility.

See INS v. Wang, supra, 450 U.S. at 143 n.5; LeBlanc

v. INS, 715 F.2d 685, 692 (1st Cir. 1983); Moore v.

INS, 715 F.2d 18, 16 n.2 (1st Cir. 1983). Even assuming

that the latter approach is correct and applicable to a

motion to reopen on remand from an appellate court,

we cannot accept the reasons given by the Board to

their educational and social hardship should they be forced to go

to Mexico with their parents, especially in the case of Ana Belia

who has completed several years of education in Omaha. The

Board’s decision on remand from this Court failed to consider

these specific factors, alone or in the aggregate with others in

the record, as relevant to a prima facie showing of extreme

hardship. Such disregard is an abuse of discretion. See Batoon

v. INS, 707 F.2d 399, 401-402 (9th Cir. 1983); Antoine-Dorcelli

v. INS, 703 F.2d 19, 20-21 (1st Cir. 1983); Ramos v. INS, 695

F.2d 181, 186 & n.12, 188 (5th Cir. 1983); Santana-Figueroa v.

INS, 644 F.2d 1354, 1356 (9th Cir. 1981).

Furthermore, several courts have recognized the difficulty in

declaring no extreme hardship to an immigrant’s United States

citizen children without a hearing. £.g., Luna v. INS, 709 F.2d

126, 128 (1st Cir. 1983); Urbano de Malaluan v. INS, 577 F.2d

589, 594 (9th Cir. 1978). We agree with these courts and con-

sider this an important factor in reviewing any denial of a mo-

tion to reopen in which extreme hardship to United States citi-

zen children is alleged and supported by evidence.

9a

support its denial of the petitioners’ motion to reopen

“in the exercise of discretion.”

The Board first held that the petitioners prolonged

their presence in this country, thus meeting the seven-

year requirement of section 1254(a)(1), by filing “frivo-

lous appeals.” While in some cases an abuse of judicial

processes might be a factor relevant to a discretionary

refusal to reopen deportation proceedings, see LeBlanc

v. INS, supra, 715 F.2d at 693, the appeals and peti-

tions for review in this case do not fall into the “frivo-

lous” category. Indeed, this Court has now twice <con-

sidered petitions which, regardless of their ultimate

success, have required further proceedings to fully and

fairly decide the petitioners’ claim of their right to stay

in this country. The other discretionary factor consid-

ered by the Board in denying the motion to reopen was

the petitioners’ “disregard” of our immigration laws by

using a paid smuggler to illegally enter this country and

refusing to depart voluntarily. Such “disregard” is nec-

essarily present in some form in most deportation pro-

ceedings, however, and we find reliance on this factor

to be “arbitrary, irrational, [and] contrary to the law.”

Batoon v. INS, 707 F.2d 399, 401 (9th Cir. 1983) (cita-

tion omitted). Consideration of these improper and ir-

relevant factors tainted the Board’s exercise of discre-

tion and is therefore grounds to reverse the denial to

reopen the petitioners’ case. See Chung v. United

States INS, 602 F.2d 608, 612 n.7 (8d Cir. 1979).

In short, we find that the Board abused the discre-

tion which remained after our remand of this case by

refusing to give the petitioners a full and fair opportu-

nity to present their evidence of extreme hardship and

failing to render a reasoned decision based upon that

evidence. The Board was not free to reconsider the

prima facie case issue, and it abused the Attorney Gen-

eral’s discretion in denying the petitioners’ motion re-

gardless of their prima facie showing. We do not ques-

10a

tion the Board’s sincerity in attempting to implement

the immigration policy which languishes in our federal —

statutes. We do require that policy be followed to the

letter and in a spirit of total fairness to those persons

who may be permanently exiled from our shores as a

result of its implementation. We therefore remand to

the Board with directions that it reopen the petitioners’

deportation proceedings, with a full hearing before an

immigration judge if requested, in order to make a rea-

soned determination of their eligibility for a section

1254(a1) suspension of deportation by virtue of the re-

sultant extreme hardship to themselves or either of

their daughters, Ana Belia or Brenda Lee.

Reversed and remanded.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

lla

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

WASHINGTON, D.C. 20530

July 16, 1982

Files: A22 733 395—Omaha

A22 733 397

In re: BERNARDO RIJOS-PINEDA

ESTARNILADA RAMOS DE R/JOS

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENTS:

Roman de la Campa, Esquire

2219 Allan Street

Sioux City, Iowa 51103

ON BEHALF OF SERVICE:

Anthony Kieffer

Acting General Attorney

CHARGE:

Order: Sec. 241(a)(2), I&N Act (8 U.S.C.

1251(aX2))—Entry without inspection

APPLICATION: Motion to reopen

This case is before us on remand from a decision on

the Eighth Circuit Court of Appeals dated March 12,

1982, ordering the Board to allow the respondents 60

days in which to properly file a motion to reopen to ap-

ply for suspension of deportation. The respondents

have submitted a motion to reopen. The motion will be

denied and our order of May 30, 1980, will be

reaffirmed.

In a decision duved December 12, 1978, the immigra-

tion judge found the respondents deportable on their

own admissions to having entered without inspection on

12a

May 1, 1974. He further refused to accept the male re-

spondent’s application for suspension of deportation for

failure to establish 7 years of continuous physical pres-

ence, and denied both respondents’ requests for volun-

tary departure in the exercise of discretion. An appeal

from that decision was dismissed by the Board on May

30, 1980. The respondents filed a petition for review of

our decision on July 16, 1980. The Court remanded the

record because the respondents acquired 7 years of

physical presence during the pendency of the appeal.

The male respondent is a 30-year-old native and citi-

zen of Mexico. At deportation proceedings, he testified

that he first entered the United States in the summer

of 1972, but his suspension application states that his

first entry was in June 1971. The record reflects that he

left the United States in March 1974 pursuant to an

administrative grant of voluntary departure and re-

turned with the assistance of a smuggler on May 1,

1974. The female is a 33-year-old native and citizen of

Mexico who entered the United States on May 1, 1974,

with her husband. The respondents have two United

States citizen children born November 8, 1974, and

February 9, 1979.

According to the order of the Circuit Court, the re-

spondents were granted 60 days from March 12, 1982,

to file a proper motion to the Board in accordance with

the controlling regulations which the Court noted to be

8 C.F.R. 3.2 and 8 C.F.R. 3.8. Under the provisions of

8 C.F.R. 3.8(b), an alien must submit a motion to reo-

pen in triplicate to the officer of the Service having

administrative jurisdiction over the place where the

were conducted so that one copy is avail-

able each for that officer, the officer who rendered the

initial decision in the case, and the Board.

The record before us indicates that the respondents’

motion papers were not properly filed with the District

Director in Omaha until May 21, 1982, some 10 days af-

13a

ter the expiration of the period granted by the Court.

Although at the top of a typed motion, counsel has writ-

ten “Submitted: by certified mail May 6, 1982,” the mo-

tion is itself undated and the envelope in which it was

mailed has not been included in the record. We are con-

sequently unable to determine the actual date on which

the motion was mailed. However, a memorandum from

the Appellate Trial Attorney forwarding the respon-

dents’ motion, which was improperly filed with that of-

RRR gr oO app tated 18,

1982.

Even assuming that the respondents’ motion was

mailed within the time permitted by the Court, it can-

not be considered properly filed in a timely manner be-

cause it was not submitted to the District Director in

Omaha as required by the reguiations until May 21,

1982. We believe that the respondents’ failure to prop-

erly file their motion to reopen within the period al-

lowed is sufficient cause for denial of the motion.

Even were the motion properly filed, we would con-

clude that the respondents have not made a prima facie

showing of extreme hardship to establish eligibility for

suspension of deportation. The respondents’ motion

consists of their suspension application, copies of birth

and marriage certificates, income tax returns, a letter

of employment, a cuntract for the purchase of a home,

and the typed motion of their attorney. The respon-

dents have submitted no affidavits attesting to the ex-

treme hardship they may suffer from deportation. The

motion signed by their attorney refers only to the psy-

chological hardship of the respondents resulting from

their inability to enjoy the higher standard of living ir.

this country, which they have acquired despite their

“low skills and education,” and to the hardship of their

children in being deprived of their rights as citizens to

be educated in American schools and to receive social

assistance. Having considered the documents and the

l4a

vague allegations forwarded bv counsel, we are not per-

suaded that they are sufficient vo establish a prima facie

showing of extreme hardship. See Lec «. /NS, 550 F.2d

554 (9 Cir. 1977); Matter of Reyes, Interim Decision

____ (BIA June 30, 1982).

warded tn thatr eqpedd to Go Reaed ouged Sum «

not address

the merits of the contentions forwarded in the petition

to review, but stated that the Board could dismiss the

appeal if the respondents failed to file a proper motion

within the specified time. Where an alien’s eligibility

for relief from deportation has been acquired after a de-

portation order is in effect only by the filing of frivolous

applications or appeals o: by other evasive or dilatory

actions, the denial of a motion to reopen has been con-

sidered appropriate. See Men Keng Chang v. Jiugni,

669 F.2d 275 (5 Cir. 1982); Owm v. INS, 613 F.2d 51 (4

Cir. 1980); Hibbert v. INS, 554 F.2d 17 (2 Cir. 1977);

Lee v. INS, supra; Matter of Reyes, supra.

In denying the respondents’ request for voluntary de-

parture, the immigration judge noted thai they both

entered the United States with the assistance of a paid

smuggler and that the male respondent was returning

15a

after a forced absence of only 2 months. Prior to the

male respondent’s departure, he had been granted

administrative voluntary departure which was ex-

tended once and he nevertheless failed to leave

voluntarily.

Considering the facts that the respondents acquired

their 7 years of physical presence and the additione!

factor of their second child more than 2 years after they

were ordered deported and that they have evidenced

their disregard for our immigration laws by paying a

smuggler to help them avoid inspection and by failing to

depart voluntarily, we believe that these adverse fac-

tors outweigh the equities which have been identified

by the respondents in their motion. Accordingly, we do

not believe that reopening of proceedings is warranted

as a matter of discretion. The motion to reopen will be

denied.

ORDER: The motion to reopen is denied and our de-

cision ordering the respondents deported is reaffirmed.

‘s/ Davip L. MILHOLLAN

Davip L. MILHOLLAN

Chairman

Board Member James P. Morris has abstained from

consideration of this case.

l6a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1619

BERNARDO RIOS-PINEDA, A 22 733 395, HUSBAND,

AND ESTARNILADA RAMOS DE Rios, A 22 733 397,

WIFE, PETITIONERS,

v.

U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND

NATURALIZATION SERVICE, IMMIGRATION AND

NATURALIZATION SERVICES, OMAHA, NEBRASKA,

RESPONDENT.

PETITION FOR REVIEW OF AN

ORDER OF THE BOARD OF IMMIGRATION AND

NATURALIZATION SERVICE,

Submitted: March 11, 1981

Filed: March 12, 1982

Before HEANEY, HENLEY and McMILLIAN, Cir-

cuit Judges.

HEANEY, Circuit Judge.

Bernardo Rios-Pineda and his wife, Estarnilada

Ramos de Rios, seek review of the Board of Immigra-

tion Appeals’ May 30, 1980, decision which held that: (1)

Bernardo and Estarnilada are deportable under 8

U.S.C. § 1251(a\(2); (2) voluntary departure under 8

U.S.C. § 1254(e) is inappropriate; (3) Bernardo is ineli-

gible for relief under 8 U.S.C. § 1182(c); and (4)

17a

Bernardo is statutorily ineligible to be considered for

suspension of deportation under 8 U.S.C. § 1254(a)(1).

For the reasons set forth below, we reverse the Board

of Immigration Appeals’ decision and remand for fur-

ther proceedings consistent with this opinion.

Bernardo Rios-Pineda and Estarnilada Ramos de

Rios were married in Mexico in 1971. In the summer of

1972, Bernardo unlawfully entered the United States,

but returned to Mexico sometime around March of 1974

after he was apprehended by Immigration and Natural-

ization Service (INS) officials in Chicago.'

On May 1, 1974, Bernardo and Estarnilada entered

the United States without inspection at San Ysidro,

California, and subsequently made their way to Omaha,

Nebraska, where they have resided ever since.

Bernardo has worked for the Union Packing Company

in Omaha continuously since 1974 and Estarnilada has

been a housewife.

At the time of the December 12, 1978, deportation

hearing before an Immigration Judge, Bernardo was

earning $6.40 an hour for his job at Union Packing.”

The couple owned an autombile and were buying a

home fo which they had initially paid a $3,000

downpayment. Bernardo and Estarnilada are the par-

ents of two daughters, both of whom were born in

Omaha: Ana Belia, born on November 8, 1974; and

Brenda Lee, born on February 9, 1979.

On October 24, 1978, separate show cause orders

alleging deportability under Section 241(a)(2) of the Im-

migration and Nationality Act (8 U.S.C. § 1251(a\(2)),

' Bernardo testified at his December 12, 1978, deportation

hearing that he was allowed to leave the United States in 1974

and that no deportation hearing was conducted at that time.

2 The record reveals that an application for a labor certificate

for Bernardo was filed at the Nebraska Labor Department. Al-

though the record is not clear, it appears that Union Packing

Company filed the application on Bernardo’s behalf.

Judge in Omaha on December 12, 1978. The Immigra-

tion Judge held, inter alia, that an

pension of deportation pursuant to 8 U.S.C.

§ 1254(aX(1)® could not be considered as a matter of law

:

i

ice

Leis

Bare

19a

sult in extreme hardship to the alien or to his

Sa

° au-

8 C.F.R. § 2.1 (1979). [Footnotes omitted. }

Here, Bernardo and Estarnilada have been physically

present in the United States continuously since May 1,

Both of Bernardo and Estarnilada’s children, Ana Belia

and Brenda Lee, were born in Omaha and have resided

there since birth.

il

In remanding this cause to the Board for further pro-

ceedings, we direct the Board to hold this matter in

abeyance for sixty days from the date of this decision.

If Bernardo and Estarnilada file a proper motion to reo-

pen* within the sixty-day period, the Board shall

promptly consider and rule upon their claim that they

are entitled to suspension of deportation under 8

U.S.C. § 1254(aX(1).5 If no motion to reopen is filed

within sixty days, the Board may dismiss this matter.

Reversed and remanded.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

* If a motion to reopen is filed, it should be in accordance with

applicable INS regulations as described by the Supreme Court

in INS v. Jong Ha Wang, 450 U.S. 139, 140-141 & n.3 (1981).

See 8 C.F.R. $§ 3.2, 3.8 (1981).

5 We caution the Board to give careful and thorough consider-

ation to the new motion to reopen if, indeed, one is filed. See.

e.g., Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981) (per

curiam).

2la

APPENDIX D

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

WASHINGTON, D.C. 20530

May 30, 1980

Files: A22 733 395 - Omaha

A22 733 397

In re: BERNADO RIOS’~ PINEDA, and

ESTARNILADA RAMOS DE R/JOS

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS:

Roman de la Campa, Esquire

2219 Allan Street

Sioux City, Iowa 51103

CHARGE:

Order: Section 241(a)(2), I&N Act (8 U.S.C.

1251(aX2))—Entry without inspection

APPLICATION: Termination

The respondents appeal from the decision of an immi-

gration judge dated December 12, 1978, in which they

were found deportable as charged and denied the privi-

lege of voluntary departure. The appeal will be

The respondents, husband and wife, are both natives

and citizens of Mexico, who last entered the United

States on or about May 1, 1974. On October 24, 1978,

the Service issued an Order to Show Cause charging

the respondents with deportability under section

241(aX2) of the Immigration and Nationality Act, 8

U.S.C. 1251(aX(2), as aliens who had entered without

F

22a

At the deportation hearing, the respondents, repre-

sented by counsel, admitted the factual allegations of

the Order to Show Cause and conceded deportability

under section 241(aX(2) of the Act. The immigration

judge denied the male respondent’s request for suspen-

sion of deportation upon finding that he had not met the

seven year continuous physical presence requirement of

section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). In ad-

dition, the immigration judge denied the male respon-

dent’s request for voluntary departure in light of his en-

try with the aid of a smuggler, the fact that he had

previously been permitted to leave the United States

without the issuance of an Order to Show Cause and

had re-entered illegally two months thereafter and his

apparent hesitancy to voluntarily depart from this

country. Although the immigration judge did not find

the same number of adverse factors present in the fe-

male respondent’s case, he denied her voluntary depar-

ture as a matter of discretion in order to preserve the

family unit.

On appeal, counsel for the respondent argues that the

deportation of the respondents violates the constitu-

tional rights of their minor United States citizen child.

In addition, it is maintained that the male respondent is

eligible for relief from deportation under section 212(c)

of the Act, 8 U.S.C. 1182(c) since he has continuously

resided in the United States for a seven year period.

Furthermore, it is contended that the i

should be terminated since the respondent’s employer

has filed for a labor certificate on his behalf. Finally,

counsel for the respondent argues that the immigration

judge’s interrogation of the respondents at the hearing vi-

fifth amendment of the United States Constitution.

Counsel’s contention that the deportation of the re-

spondents amounts to an unconstitutional deportation

of their United States citizen child is without merit. Al-

23a

though it has been recognized that the deportation of

alien parents may result in the de facto deportation of

minor citizen children, such deportation has not been

viewed as violating any constitutional rights of such

children. Rubio de Cachu v. INS, 568 F.2d 625 (9 Cir.

1977); Faustino v. INS, 482 F.2d 429 (2 Cir. 1970), cert.

denied, 401 U.S. 921 (1971); Acosta v. Gaffney, 558

F.2d 1153 (8 Cir. 1977); Aalund v. Marshall, 461 F.2d

710 (5 Cir. 1972). Alien parents who have violated the

immigration laws cannot gain favored status, directly

or vicariously, through their citizen children over those

aliens complying with the immigration laws. Gonzalez-

Cuevas v. INS, 515 F.2d 1222 (5 Cir. 1975).

Counsel’s contention that the male respondent is eli-

gible for section 212(c) relief is also without merit. Re-

lief under section 212(c) of the Act is specifically limited

to those “aliens lawfully admitted for permanent resi-

dence” in the United States. The respondent here en-

tered the United States without inspection and has

never been admitted to this country as a lawful perma-

nent resident. Consequently, he is ineligible for relief

under section 212(c) of the Act.

It is further maintained that the deportation proceed-

ings should be terminated against the male respondent

since the Order to Show Cause was issued while a labor

certificate application filed on his behalf was pending at

the Nebraska Labor Department. However, it is within

waalien to instit -nev mete ar against

w ute ion proceedings a

deportable alien. Where deportation proceedings have

commenced, neither the immigration judge nor this

pe eed mee ehh dh hw eA tar

decision prosecute by instituting deportation

ceedings. See Matter of Merced, 14 I&N Dec. 644 BIA

oa Matter of Geronimo, 13 I&N Dec. 680 (BIA

24a

Finally, counsel’s argument that the immigration

judge violated the respondents’ fifth amendment rights

against self-incrimination by forcing them to answer

questions posed to them is also without merit. Since the

respondents have been charged with entry without in-

spection, a federal criminal offense under section 275 of

the Act, 8 U.S.C. 1325, they could have refused to an-

swer, on fifth amendment grounds, any questions which

they reasonably believed had a tendency to incriminate

them. Matter of Carrillo, Interim Decision 2717 (BIA

1979); Matter of R, 4 1&N Dec 720 (BIA 1952). How-

ever, counsel did not object to any of the questions «

the time of the hearing, and no evidence in support of a

coercion claim has been submitted on appeal. There is

nothing in the transcript of the deportation hearing in-

dicating that the respondents’ admissions were induced

by coercion, duress, or improper action on the part of

the immigration judge. See Cuevas-Ortega v. INS, 588

F.2d 1274 (9 Cir. 1979). To the contrary, counsel for the

respondents plead to the factual allegations of the Or-

der to Show Cause on the respondents’ behalf and

freely admitted those allegations and conceded to the

deportability of the respondents. In fact, counsel aiso

waived the reading to the respondents of the rights

provided them under 8 C.F.R. 242.16. In light of the

foregoing, we conclude that the respondents were not

deprived of their rights against self-incrimination and

the appeal, accordingly, will be dismissed.

ORDER: The appeal is dismissed.

/s/ DAVID L. MILHOLLAN

DAVID L. MILHOLLAN

Chairman

25a

APPENDIX E

UNITED STATES DEPARTMENT OF JUSTICE

IMMIGRATION COURT

August 29, 1980

[Amending decision of December 12, 1978]

Files: A22 733 395-Omaha

A22 733 397-Omaha

In the Matter of

BERNARDO RIOS-PINEDA

AND

ESTARNILADA RAMOS DE RIOS, RESPONDENTS

IN DEPORTATION PROCEEDINGS

CHARGE: I&N Act, Section 241(a)(2), entry without inspection

LODGE: None

APPLICATION: Termination voluntary departure for the male

respondent

Termination voluntary departure for the fe-

male respondent

IN BEHALF OF RESPONDENT:

Roman de la Campa

2219 Allan Street

Sioux City, IA 51103

IN BEHALF OF SERVICE:

An Kieffer

Attorney

Omaha, Nebraska

DECISION OF THE IMMIGRATION JUDGE

The record relates to a man and wife, both natives

and citizens of Mexico, who are charged with entering

the United States without inspection.

The male respondent is a 27 year old, married male

alien, a native and citi

United States at or near San Ysidro, California, on

about May 1, 1974, without being inspected. On Octo-

ber 24, 1978, an Order to Show Cause issued against

the male respondent, alleging alienage, the above entry

information, and further alleging that at the time of the

entry he was not inspected by the United States Immi-

gration Officer.

The Order to Show Cause charges deportability un-

der provision of Section 241(aX2) of the Immigration

and Nationality Act, in that, respondent did enter the

United States without inspection.

The fernale alien is a 29 year old, married, female al-

ien, native and citizen of Mexico, who is charged with

entering the United States at or near San Ysidro,

California, on about May 1, 1974.

On October 24, 1978, an Order to Show Cause issued

against her alleging alienage the above entry informa-

tion, and further alleging that at the time of the entry

she was not inspected by a United States Immigration

Officer. The Order to Show Cause charges deportability

under Section 241(aX2) of the Immigration and Nation-

ality Act, in that respondent entered the United States

without inspection.

At a joint deportation hearing held before me this

on the Acosta decision, a District Court Decision rend-

ered by the United States District Court in New Jer-

i 558 F 2d 1153 (3

27a

Cir-1977). The Attorney for the respondents alleging

that as they are parents of a United States citizen (a

daughter) the deportatior of the respondents would re-

sult in a defacto deportation of the United States citizen

child. The father testified that he would not leave the

child in the United States, but would take the child

with them. Testimony was alleged to indicate that the

female respondent is expecting another child in January

of 1979.

The application for Suspension oi Deportation was

not allowed as the evidence of record indicates that the

male respondent is ineligible for such relief as a matter

of law. Section 244(a)(1) of the Immigration and Nation-

ality Act, lists eligibility requiremenis for such a relief,

whic: *s pertinent to this decision, that an alien must

have a continuous physical presence of more than sever

years to be eligible for such relief. Viewing the evi-

dence most strongly in favor of such an application, it

indicates that the respondent was first in the United

States during the summer months of 1972. The hearing

is being held in December | 978. It shows that the maxi-

mum residence or physical presence respondent has is

approximately six and a half years in the United

presence. See Matter of Barragan 13 i&N, DEC.

(BIA-1971)

Each of the respondents have made application for

2 oe nate se area eleanor

tion under (ee age re eer dota

gration and Nationality Act. Testimony in this connec-

culsen Eitan tele Gath andl Lite eensndess. ook

male respondent) paid a smuggler to enter the United

States, male respondent has been in the United States

Hirks

HH

the last two years, $6.40 an hour, displacing persons in

the United States lawfully of such employment. Al-

though the respondent professed at first that he would

not leave the United States if granted voiuntary depar-

ture on reflection he testified, that he would leave. |

before me today, I find that deportability has been es-

tablished in each case by clear, convincing and unequiv-

ocal evidence, which is the burden placed upon the

the rule laid down by the Supreme Court in Woodby vs.

Service by regulations, 8 CFR 242.14(a), which recites

INS, 385 U.S. 276, 87 S. ct 483, 17 L Ed 2d 362 (1966).

untary departure in lieu of deportation shall be granted

working earning $6.40 per hour for the past two years

displacing a person that is lawfully in the United States

of Barragan, 13 1&N Dec 759 (1971).

aE EPEAT

Hetil aun Hii AHA

ee at en

eilitilil Hinsalins

ne Hanh + a TTEE PEE 4

cal tataieaetltiuthe

HLH IEHI PETE Hi HHT

der his deportation from the United States. In the Mat-

ter of Arde, 13 I&N Dec 494 (BIA-1970).

The female respondent’s testimony indicates she also

had the use of a professional smuggler to enter the

so directed deportation to Mexico if ordered deported.

the above decision

|

:

tained in the Order to Show .

/s/ Jesse M. SELLERS .

Jesse M. SELLERS

Immigration Judge

August 29, 1980

Date

3la

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1983

No. 82-1894

BERNARDO R10S/PINEDA, ET AL, PETITIONERS.

v.

UNITED STATES DEPARTMENT OF JUSTICE,

IMMIGRATION & NATURALIZATION SERVICE,

A TRUE COPY:

ATTEST: Robert D. St. Vrain

Clerk, U.S. Court of Appeals,

1/24/84

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1983

No. 82-1894

BERNARDO RI0s/PINEDA, ET AL., PETITIONERS,

vs.

UNITED STATES DEPARTMENT OF JUSTICE,

IMMIGRATION & NATURALIZATION SERVICE,

RESPONDENT

PETITION FOR REVIEW OF ORDER

OF IMMIGRATION AND NATURALIZATION SERVICE