# Petition for Writ of Certiorari — INS v. Rios-Pineda > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0790%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 444 ## Text 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