Respondents Brief — INS v. Rios-Pineda

Office -Supreme Court, US.

No. 83-2032 FILED

—_—— FEB 27 90°

IN THE

SUPREME COURT OF THE UNITED STATES” °°""*

October Term, 1984

IMMIGRATION AND NATURALIZATION SERVICE

Petitioner

t

BERNARDO RIOS-PINEDA

AND

ESTARNILADA RIOS-PINEDA DE Rios

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE BIGCHTH CIRCUTT

BRIEF FOR THE RESPONDENTS

Lawrence H. Rudnick

ORLOW, FULLER, RUBIN & STEEI

936 Public Ledger Building

Philadelphia, PA 19106

215) 922-1151

Roman de La Campa

2219 Allan Street

Sioux City, lowa 51103

S14) 258-8552

Counsel for Respondents

» BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF CONTENTS... . 2.2... c cc cceccuees

TABLE OF AUTHORITIES.....................

STATEMENT OF THE CASE:

A. The Board of Immigration Appeals has author-

ity to deny Motions to Reepen to apply for sus-

pension of deportation in proper cases... .. .

applied the correct standard of review Seas

D. The litigation of the deportation proceeding

abuse of the judicial process ..............

E. The Court of Appeals did not err in finding an

abuse of discretion wherein the Board of Im-

TABLE OF AUTHORITIES

Cases: Page

Acosta v. Gaffney, 413 F. Supp. 927, rev d., 558 F.2d

BERD . cccccccccdceseseseeceeuesebennenee 22

Arakas v. Zimmerman, 200 F.2d 322............ —

Balani wv. INS, 669 F.2d 1157 ....... . oo ee eee 24

Bastidas v. INS, 707 F.2d 399... ..... .. . . eee eee 4

Batoon v. INS, 707 F.2d 398... ... . . . . 6. ew ewes 5

Christiansburg 0. EEOC, 434 US 412........... 19, 21

Citizens to Preserve Overton Park v. Volpe, 401 US

GD .ccccccccsececcetngseeceeeseueenen 17

Hughes v. Rowe, 449 US 5............... 20-21, 23,27

INS v. Bagamasbad, 429 US 24 ............. 6... 13

INS ov. Phinpathya, No. 82-91 (Jan. 10, 1984).. 9, 11, 15

INS o. Weng, 450 US 130 ....... 2... 2 cee ees passim

Lam Chuen Ching o. INS, 467 F.2d 644........... 24

LeBlanc o. INS 715 F.2d 685 ................ 4, 23-25

Rane ©. BEB, TED O.Be GED oc ccccccccccccccessess 14

Mendez v. Major, 340 F.2d 128. ................ 21-22

Morrissey vo. Brewer, 408 US 471........ ~~... .... 16

Ramos vw. INS, 695 F.2d 181.......... 2... 6666. 16, 29

Reyes wv. INS 673 F.2d 1087... ... .. «6. 6 we ee cen nee 14

Rios-Pineda v. INS, 673 F.2d 275.............. passtm

Rios-Pineda wv. INS, 720 F.2d 529.............. passim

Shin v. INS, T5O F.2d 122.............. 14, 16, 19, 26

Teamsters v. United States, 431 US 324 ........... 23

Valadez-Salas v. INS, 721 F.2d 251............... 22

u

TABLE OF AUTHORITIES— Continued)

Cases: Page

Vargas-Gonzalez v. INS, 647 F.2d 457 ............ 2

Villena v. INS 622 F.2d 1352................... 11-12

Wolff v. McDonnell, 418 US 539 ................. 16

Wong Hing Hang v. INS 360 F.2d 715............ 17

Woodby v. INS 385 US 276...................... 20

STATUTES AND REGULATIONS:

ECE EEC Edw ebusescccecccccccces 17

Neen. ccesccccccss 21

MEE ees Seco scccccsccccccccs 27

PEE ee bebe sdeccescccccsscs passim

DTCC E SG enededsecvececcccccs passim

eee Case sccccescecccccccs 20

IES SESS EEE OPE 20

EG aw acecbecccccceces passim

EES ESIS SOT SCPE ET ETETETY passim

ADMINISTRATIVE DECISIONS:

Matter of Reyes 18 I&N Dec. 249.......... 11, 14

MISCELLANEOUS: .

Davis, Administrative Law Treatise, Chap.

Sn coc cencceces 17-18

Tribe, American Constitutional Law, Sec. 10-8.. 25

I. STATEMENT OF THE CASE

A. Factual Background

A deportation hearing was held on December 12, 1978

in Omaha, Nebraska in which the Respondents appeared

before Immigration Judge Jessie M. Sellers. Most of the

facts of record are gleaned from the 31 page transcript of

that proceeding. (Pet. App. 80a-11 1a).

The Immigration Service on October 24, 1978 had in-

itiated deportation proceedings against the Respondents by

the issuance of an Order to Show Cause and Notice of Hear-

ing. (Pet. App. 112a). This document alleged that the Re-

spondents were not citizens of the United States, were na-

tives and citizens of Mexico, and had illegally entered the

United States on or about May 1, 1974. Counsel for the

Respondents admitted these factual allegations. (Pet. App.

85a-86a).

Respondent, Bernardo Rios-Pineda, entered the

United States for the first time in 1972. There is no clear

statement as to when during that year this Respondent en-

tered the United States. (Pet. App. 88a; 93a). Thereafter,

he departed the United States for approximately two

months during the year 1974. (Pet. App. 88a). Again, the

precise circumstances of his departure are unclear. How-

ever, it is apparent that the Respondent was arrested by

agents of the Immigration and Naturalization Service and

that he departed the United States. Further, he was not

provided a hearing before an Immigration Judge. (Pet.

App. 88a-89a). |

Thereafter, both Respondents entered the United

States in May of 1974, paying a smuggler to assist them,

$225.00 each. (id. at 96a).

At the time of the deportation hearing the Respondents

had one United States citizen child and Respondent,

Estarnilada Rios-Pineda de Rios, (herein after referred to as

the “female respondent”) was near to delivering a second

United States citizen child. The male Respondent was em-

l

2

ployed and the Respondents were purchasing a home. Nei-

ther Respondent had a criminal record. (Pet. App. 76a).

B. History of the Case

At the deportation hearing on December 12, 1978 the

attorney for the Respondents attempted to apply for sus-

pension of deportation, though no formal applications were

submitted. He also argued that the deportation of the Re-

spondents would be unconstitutional in light of their

United States citizen child. Counsel further argued that is-

suance of the Order to Show Cause was an abuse of dis-

cretion in light of a pending application for an alien labor

certification, and lastly he applied for voluntary departure

on behalf of the Respondents. All of the requested relief

was denied. (Pet. App. 72a-79a).

Counsel for the Respondents then filed a timely appeal

on December 20, 1978 to the Board of Immigration Ap-

peals. Among the arguments made was that deportation of

the Respondents would effect a “de facto deportation” of

their citizen child. A brief was submitted to the Board of

Immigration Appeals (Pet. App. 69a-70a). The Board of Im-

migration Appeals on May 30, 1980 dismissed the appeal

rejecting the de facto deportation argument. The Board

also rejected all of Respondents’ other arguments. There

was no discussion of the denial of voluntary departure. (Pet.

App. 64a-68a).

The Respondents then filed a Petition for Review with

the United State Court of Appeals for the Eighth Circuit.

The Court in March of 1982 reversed and remanded for

further proceedings, Rios-Pineda v. INS, 673 F.2d 225.

The Court did not rule on any of the arguments made by

the Respondents, except to note that the seven years re-

quired for suspension of deportation were undisputably

met at that time.

The precise nature of the proceedings contemplated by

the Court of Appeals was unclear. The Court quoted from

Vargas-Gonzalez v. INS, 647 F.2d 457, 459 (5th Cir. 1981)

3

to the effect that a“ rima facie” case entitling the Respond-

ents to reopening upon the presentation of a proper pro-

cedural motion was appropriate. The Court further noted

that the Respondents had made a substantial showing that

they should be afforded relief on the basis of the evidence

submitted. Rios-Pineda, at 227. However, the Court then

remanded the case to the Board to permit the Respondents

to submit a proper Motion to Reopen within a 60 day period

and instructed the Board to rule upon the claim that they

were entitled to suspension of deportation. Rios-Pineda, at

228. The Court plainly contemplated that a Motion to Re-

open would be filed and that it would have to be carefully

considered by the Board of Immigration Appeals.

Rios-Pineda, at 228 n4andn5. |

On remand to the Board of Immigration Appeals the

Board once again denied all relief. The Board ruled on July

16, 1982 and gave three basis for its decision. (Pet. App.

lla-15a). First, the Board held that the Respondents had

not properly filed a motion within the sixty days provided

by the Court of Appeals. The Respondents had mistakenly

filed the motion with the Appellate Trial Counsel of the

Immigration Service, rather than with the District Director

in Omaha, Nebraska.

Secondly, the Board found that the Respondents did

not set forth in their motion and supporting documents a

prima facie case that would merit reopening and which

would permit an application for suspension of deportation

pursuant to §244(a)(1) of the Immigration and Nationality

Act. The Court found that the Respondents did not estab-

lish a prima facie case of extreme hardship.

Lastly, the Board stated that in any event it would deny

as a matter of discretion because it found that the appeals

taken by the Respondents were “frivolous”. The Board

found that where eligibility for relief was gained by frivo-

lous appeals or other dilatory actions that it would deny a

Motion to Reopen as a matter of discretion. The Court also

considered that the Respondents had used a paid smuggler

and had failed to depart after being given voluntary depar-

4

ture by the Immigration Service, and the male Respondent

having returned to the United States two months after hav-

ing departed.

The Respondents then filed a second Petition for Re-

view to the United States Court of Appeals for the Eighth

Circuit. Once again, that Court reversed and remanded.

See Rios-Pineda v. INS, 720 F.2d 529 (1983). The Court

first found that the Motion to Reopen was properly filed

and that the procedural error of counsel would not be given

conclusive effect. Rios-Pineda, at 532.

The Court next found that the Board's denial of the

Motion to Reopen for want of a prima facie showing of ex-

treme hardship was in error. The Court noted that its nor-

mal standard for review of the Board's finding regarding a

prima facie case of extreme hardship was an “abuse of dis-

cretion standard”, citing this Court's decision in INS v.

Wang, 450 US 139, 143, 144-145 (1981). The Court then

went on to apply the “law of the case” doctrine. The Court

interpreted its prior decision as requiring reopening. The

Court further found that its prior decision was not “clearly

erroneous” and hence was within the law of the case doc-

trine. Rios-Pineda, at 532-533. In any event, the Court

found that the Board's denial for lack of extreme hardship

was an abuse of discretion. Rios-Pineda, at 533 n3.

Lastly, the Court found the Board's denial as a matter

of discretion to be in error. The Court assumed that the

Board had the power to deny a Motion to Reopen to apply

for suspension of deportation, even where a prima facie

case had been established, in the exercise of its discretion.

Rios-Pineda, at 534. The Court found that it could not ac-

cept the reasons given by the Board for its discretionary

denial.

First, the Court rejected the Board's finding that the

seven year period had accrued by the filing of “frivolous

appeals”. The Court found that a discretionary denial based

upon abusive litigation could, under proper circumstances,

form the basis of a denial of a Motion to Reopen, citing

LeBlanc v. INS, 715 F.2d 685, 693 (Ist Cir. 1983). The

5

Court then found that the petitions filed had not been friv-

olous. The Court noted that the petitions had resulted in

the necessity of further proceedings.

The Court next rejected the Board's reliance on the use

of a paid smuggler to deny the motion as “arbitrary, irra-

tional, and contrary to the law”, citing Batoon v. INS, 707

F.2d 399, 401 (9th Cir. 1983). The Court noted that dis-

regard of the immigration laws in some form was essential

to deportation proceedings. The Court therefore remanded

to the Board with directions that it reopen the deportation

proceedings for a full hearing before an Immigration Judge

in order to determine whether suspension of deportation

was merited.

The Solicitor General then petitioned this Court for a

Writ of Certiorari which Writ has been granted. The Pe-

tition requested review only of the Court of Appeals re-

versal of the Board of Immigration Appeals denial as a mat-

ter of discretion. The propriety of the filing of the Motion

and whether a prima facie case of extreme hardship ex.sted

were expressly not the subject of the Solicitor General's

petition. Petition for Certiorari, pages 18-19 n14.

Il. SUMMARY OF ARGUMENT

A. The Board of Immigration Appeals does have au-

thority to deny motions to reopen to apply for suspension

of deportation as a matter of discretion in proper cases.

Both abuse of the judicial and administrative system

and disregard for the immigration laws under proper cir-

cumstances can form the basis of a proper denial by the

Board of Immigration Appeals of such a Motion to Reopen.

Neither the appeals taken by the Respondents, nor their

“disregard” of the immigration laws justifies denial of their

Motion as a matter of discretion.

B. The applicable regulations, 8 CFR §3.2 and 3.2, as

well as §244(a)(1) of the Immigration and Nationality Act,

grant broad discretion to the Attorney General and his del-

egates to deny motions to reopen to apply for Suspension of

Deportation. However, this discretion is not unfettered.

The Board of Immigration Appeals caa deny a Motion

to Reopen to apply for suspension of deportation where it

further consideration of a suspension application, absent

such clear misconduct, as it is difficult to weigh the

ship that would occur to the American citizen children +t

this preliminary stage. The Board of Immigration Appeals

is not free to arbitrarily pick and chose those Motions which

This standard of review was correctly applied to the

facts of this cas - and the Court of Appeals did not substitute

its views for that of the administrative agency. The Court of

Appeals did not improperly intrude on the prerogatives of

the executive branch.

D. The litigation of the deportation proceedings in-

cluding the appeal to the Board of Immigration Appeals and

two Petitions for Review was not an abuse of the judicial

process.

The litigation was not conducted in bad faith or utterly

without a reasonable basis. The arguments advanced by the

Respondents were not so clearly foreclosed as to amount to

frivolous litigation.

The Court of Appeals correctly found that the Board's

decision was contrary to law within the meaning of the

abuse of discretion standard in that it relied upon factors

not present in this record. The Court of Appeals correctly

found that no abuse of judicial process had occurred

7

E. The Court of Appeals correctly found that the

had abused its discretion in-

Ill. ARGUMENT

A. The Board of Immigration Apreais has Authority to Deny

Motions to Reopen to Apply for Suspension of Deportation

in Proper Cases.

The C overnment petitioned this Court for certiorari to

posed was whether the

$1254(a\(1) where it is alleged that the requisite seven years

“continuous physical presence” was obtained by naling “friv-

olous appeals’ and that the alien had in other ways exhib-

ited disregard for the immigration laws. The United States

Court of Appeals for the Eighth Circuit answered both

parts of the posed question in the affirmative.

The Court of declined to follow Ninth Circuit

precedent and find that the Board lacked authority to deny

a Motion to Reopen to apply for suspension of deportation

once a prima facie case of eligibility has been established.

Rios Pineda v. U.S. Dept. of Justice, INS, 720 F.2d 529,

533 (1983). The Court assumed that cases from the First

Circuit and statements from this Court's decision in INS v.

Wang, 450 US 139, 143 and 145, were to be applied and

that the Board could deny the alien's Motion to Reopen “in

the exercise of discretion.” Rios Pineda, at 534.

The Court of Appeals further -onceded, “While in

some cases an abuse of judicial processes might be a factor

relevant to a discretionary refusal to reopen deportation

proceedings, (citation omitted), the appeals and petitions

for review in this case do not fall into the ‘frivolous’ cate-

gory.” Rios-Pineda, at 534.

Lastly, the Court did not categorically reject the “dis-

regard” of the immigration laws as a proper factor to sup-

port a denial of a Motion to Reopen as a matter of discre-

tion. The Court found that the “disregard” in this case was

of a kind necessarily present in most deportation proceed-

ings and that the Board's reliance on that factor was “arbi-

trary, irrational, and contrary to the law.” (Citation omit-

ted) Rios-Pineda, at 534.

It is important to note at the outset that the Court of

Appeals did not disagree with the answer suggested to the

question posed in the Certiorari Petition by the Solicitor

General. The rhetoric contained in the Government's Briet

would lead one to believe that the Court of Appeals had

acted in a manner completely at odds with its view of the

proper application of the immigration laws. Such is not an

acc. “ate preception. This case involves a narrow issue re-

garding the application of legal precepts to a particular set

of facts.

Like the Court of Appeals, the Respondents concede

that the Board of Immigration Appeals has authority to

deny a Motion to Reopen as a matter of discretion in a

proper case both because the seven years of continuous

physical presence were obtained as a result of appeals that

amounted to an abuse of the judicial and/or regulatory proc-

ess and/or the record contained unequivocal evidence of

disregard of our immigration laws to such an extent as to

paren dyer pitas de. ag yen (emmeagal

rences that are apparent from the record.

As will be developed infra, deo Raspandente wil cat

forth their detailed disagreement with the Government re-

garding the nature of the discretion to be exercised by the

Board as well as the application of the legal precepts to the

facts of this case.

The Respondents will first consider the statutory and

regulatory frameword of the Immigration and Nationality

Act and Regulations as applied to this case. The Respond-

ents will next consider the appropriate scope of appellate

review. Lastly, the Respondents will address whether the

Respondents Motion to Reopen was properly denied in the

exercise of the Board's discretion based on “frivolous ap-

peals” and “disregard” of the immigration laws.

B. Statutory and Regulatory Framework.

Suspension of deportation is a remedy provided by sec-

tion 244(a\(1) of the Immigration and Nationality Act, 8

USC §$1254(a\(1). The remedy is available for persons having

seven years of continuous physical presence in the United

States; see INS v. Phinpathya, No. 82-981 (Jan. 10, 1984);

persons who have been of good moral character for the re-

quired seven years, and persons who in the opinion of the

Attorney General would suffer extreme hardship or their

citizen or permanent resident spouses, children, or parents

would suffer extreme hardship.

The statutory eligibility requirements are prefaced by

a grant to the Attorney General to determine “in his dis-

cretion” whether to suspend deportation and adjust the sta-

tus of an alier to one lawfully admitted for permaneat res-

idence. Thus, an alien claiming susupension of deportation

must establish continous physical presence and good moral

character as a matter of law. Further, he must convince the

Attorney General in his discretion that he and/or desig-

nated family members) would suffer extreme hardship.

Lastly, he must convince the Attorney General that he

merits a favorable exercise of discretion. See Bastidas v.

INS, 609 F.2d 101, 102-104 (3rd Cir., 1979).

Motions to Reopen deportation proceedings in general

are governed by regulations of the Department of Justice

found at 8 CFR §3.2 and §3.8

8 CFR §3.2 provides, inter alia, for a Motion to Reopen

to be filed by a party affected by a decision. Motions,

_. . shall not be granted unless it appears to the Board

that evidence sought to be offered is material and was

net available and could not have been discovered or

presented at the former deportation hearing, nor shall

any Motion to Reopen for the purpose of affording the

alien an opportunity to apply for any form of discre-

tionary relief be granted if it appears that the alien's

right to apply for such relief was fully explained to him

and an opportunity to apply therefore was afforded him

at the former hearing unless the relief is sought on the

basis of circumstances which have arisen subsequent to

the hearing.

8 CFR §3.8 is essentially procedural. 8 CFR $3. S(a)

requires Motions to Reopen to state the rew facts to be

proved and requires affidavits or other evidentiary mate-

rial. See INS v. Wang, supra, at 143. $3. 8(b) and (c) govern

the distribution of Motion papers and subsection (d) gov-

erns rulings on the Motion

Reading the Government's Brief, one would assume

that a great deal more is said in these provisions than is

actually there. These provisions set forth a relatively simple

and orderly procedure for the filing of Motions to Reopen.

There is little of a substantive nature. 8 CFR $3.2 does

require as a predicate to the opening of deportation pro-

ceedings that the evidence sought to be offered be mate-

rial, not have been available and which could not have been

discovered at the time of the former hearing. Further, the

discretionary relief sought must not have been available

and if available, such availability have been made known io

the alien at the former hearing. As applied to this case, the

only relevant requirements of the regulations are that the

evidence submitted be material and that the availability of

11

the evidence have arisen subsequent to the deportation

hearing on December 12, 1978.

Unlike its predecessor, these regulations do not grant

to the Attorney General express discretion to deny Motions

to Reopen. See Arakas v. Zimmerman, 200 F.2d 322,

323-324 n2 (Grd Cir. 1952), cited in Matter of Reyes, 18

1&N Dec. 249, 253 (BIA 1982). Even the Board itself con-

siders its authority limited to its “sound discretion” Maefter

of Reyes, supra, at 353.

Were this Court writing on a clean slate, the

Government s claim of broad discretion based upon these

regulations would be in substantial doubt. Motions to Re-

open are e@ressly not to be granted unless the require-

ments set forth above have been met. Given normal canons

of construction, it may well have been inferred where these

two requirements were met that Motions to Reopen should

be granted. The use of the permissive word “may appears

in the first sentence and appears to modify only the Board 's

authority to reopen on its own Motion. The word may does

not appear to apply to Motions submitted by “an affected

party”.

However, this Court has stated in INS 0. Wang, 450

US 139, 143 and 145, that the regulations may be construed

narrowly, as they are framed in the negative, to provide the

Board with discretion to determine under what circum-

stances proceedings should be reopened, citing Villena v_

INS, 622 F.2d 1352 (9th Cir. 1980) (en banc) (Wallace, J..

dissenting), and quoting tudge Wallace regarding the

broad scope of INS discretion with regard to Motion to Re-

open.

Last term, in INS v. Phinpathya, No. 82-91 (Jan. 10

1984) this Court stated, “Although Respondent has filed a

Motion with BIA asking that her deportation proceeding be

reopened, the granting of the Motion is entirely within

BIA's discretion. See 8 CFR $3.2 (1983), INS c. Wang, 450

US 139, 143-144, 144 95 (1981).” See Slip. Op. at p.5, n6

While neither of these statements is the holding in the case

before the Court, each is a strong indication that the Board

possesses discretionary power over Motions to Reopen de-

portation proceedings. It is important to remember that the

primary issue in Wang was whether the Court of Appeals

hed eucsoded tis autherity tn cubstituting ts own judigr-

ment as to what constituted “extreme hardship” where that

determination had been committed by the text of the stat-

ute to the Attorney General. The issue before the Court in

Phinpathya was whether the “continuous physical pres-

ence” requirement had been met. The quote cited above

arose in a context in which the Court was dealing with the

Respondent's assertion that the case before the Court was

moot Neither statement of this Court was in the context of

a holding regarding the nature of the Board's authority.

This Court's citation to Judge Wallace's dissent in Vil-

lena as well as the Court's own language reveal that the

Government s claims for “unfettered” discretion is without

foundation in this Court's recent decisions. In Wang, after

finding the Court of Appeals for the 9th Circuit had com-

mitted an error in ignoring the text of 8 CRF §3.2 and §3.5

as to the form of evidence which must be submitted. this

Court stated:

By requiring such a hearing on such a Motion, the

Court of Appeals circumvented this aspect of the reg-

ulation, which was obviously designed to permit the

Board to select for hearing only those Motions reliably

indicating the specific recent events thet «onld render

a matter of extreme hardship for the alien

or his children. (Footnote omitted) (Wang, at 143)

This quoted passage indicates the Court's concern that

the Board's regulations be strictly adhered to so that the

Board could easily identify those cases which met the re-

quirements of the regulations Further, footnote 5 which

follows this passage refers to Judge Wallace's dissenting

opimion in Villena A reading of Judge Wallace's dissenting

opinion reveals that his primary concern was that the 9th

Circuit's decision would require the Board to reopen de-

13

before immigration judges. Judge Wallace was concerned

that the Board need not reopen deportation proceedings

where an alien made out a prima facie showing of statutory

eligibility, but where the Board would deny the application

in any event as a matter of discretion. Thus, even where an

alien could demonstrate that he met the extreme hardship

requirement, the Board could deny as a matter of discre-

tion under its statutory authority under 8 USC 1254(a)(1),

as there would be no point in granting the Motion to Re-

open as the application would in any event be denied.

The Respondents do not question the soundness of

Judge Wallace's observations. The Board ought not be re-

quired to grant a Motion to Reopen where the underlying

substantive relief sought will not be granted as a matter of

discretion. Cf INS v. Bagamasbad, 429 US 24 (1976). How-

ever, the Government goes much further and argues that

the Board has authority to determine ad hoc and without

standards whether an individual merits reopening inde-

pendent of any statutory guidelines. Petitioner's Brief,

17-22. None of the cases cited by the Government supports

the claim for “unfettered” ability to pick the motions that

will be granted.

Since this Court's prior decisions indicate that the

Board has broad authority to grant Motions to Reopen and

since in any event the Board plainly has authority under the

underlying statute to deny the discretionary relief as a mat-

ter of discretion, the Respondents do not question the au-

thority of the Board to deny Motions to Reopen as a matter

of discretion where suspension of deportation is sought

even where a prima facie case is otherwise set forth. The

use of the term “prima facie case” is somewhat misleading

in this context. Part of the applicant's prima facie case is to

demonstrate that he merits reopening as a matter of dis-

cretion pursuant to the underlying statute. Thus, where he

has not demonstrated that he merits the relief sought as a

matter of the Attorney General's discretion, then he has not

set forth a prima facie case. Cf. INS v. Bagamasbad, supra.

14

The Respondents’ disagreement with the Government

is over the breadth of the Board’s authority. In a case of an

application for suspension of deportation, that authority un-

der the regulations is coextensive with the authority under

the statute itself. See Shin v. INS, 750 F.2d 122, 125 (D.C.

Cir. 1984). Where the Board finds that substantial adverse

factors exist in the record which plainly outweigh favorable

factors, then no further proceedings are required as the

moving party will not obtain the relief requested in anv

event. This makes further proceedings unnecessary for all

of the parties.

It is important to note that at this preliminary stage it

is sometimes difficult to rule upon a Motion to Reopen to

apply for suspension of deportation. The degree of hardship

to be weighed is difficult to ascertain. See Reyes v. INS, 673

F.2d 1087, 1090 (9th Cir. 1982) and Luna v. INS, 709 F.2d

126, 128 (Ist Cir. 1983). The Board asserts that it has au-

thority to deny Motions to Reopen for suspension of de-

portation based on discretionary factors. As noted above,

the Respondents do not disagree with this position in the

abstract. It is the application to the case at bar and to other

cases with which the Respondents take issue. A Motion to

Reopen is an inappropriate procedural stage in which to

sift, and weigh facts. Where a case presents a fair issue of

eligibility as a matter of discretion, and where it is difficult

to ascertain the particular hardship that would be entailed,

the Board should not be permitted to pretermit further

proceedings. There are cases where it is plain that the

Board will and should be permitted to pretermit further

consideration. See Matter of Reyes, 18 1&N Dec. 249, 254

(BIA, 1982) where the alien attained the necessary seven

years by absconding.

As the Ist Circuit Court of Appeals has noted iv Luna

v. INS, supra, it is difficult to ascertain the degree of hard-

ship without a hearing. Where the alien's conduct does not

plainly indicate that he will not be afforded the ultimate

relief, pretermittion is not appropriate.

Nt

15

As will be developed infra, the case at bar is not a case

where the alien's conduct so plainly demonstrates ineligi-

bility for the underlying relief that the Board should be

permitted to pretermit further proceedings, notwithstand-

ing that the three statutory requirements have been met. It

is important to note that the Government has not peti-

tioned for certiorari regarding the Court of Appeal’s finding

that the extreme hardship requirement has been met. See

Petition for Certiorari at pp. 18-19 n14. Thus, this Court is

presented with a case in which the Respondents have es-

tablished a prima facie case of seven years continuous phys-

ical presence, good moral character, and that their citizen

children would suffer extreme hardship were they de-

ported. The sole question posed is whether the Board may

in its discretion, on these facts, pretermit further proceed-

ings based upon their conduct.

The Government states that the Attorney General in

considering the Respondents’ Motion was to consider: 1)

whether the new evidence warranted reopening the pro-

ceedings, 2) whether the statutory requirements for eligi-

bility for suspension relief had been satisfied, and 3)

whether that relief was likely to be granted. Petitioner's

Brief at 12-13. This is analytically incorrect insofar as it pur-

ports to separate the consideration of the first factor from

the third factor. Whether reopening is warranted may not

be considered separately from whether the relief was likely

to be granted, at least in the suspension context. Whether

the Board abuses its discretion in denying a Motion to Re-

open should be gauged by whether its decision is rational

in light of the possibility of relief being obtained.

The government argues for an independent basis upon

which to deny Motions separate and apart from the under-

lying relief sought. Other than the indications of such au-

thority which it extrapolates from this Court's Wang and

Phinpathya footnotes, the Government offers a paucity of

authority for this proposition.

16

First, the government argues that because the Attor-

»ey General created the Motion to Reopen he should be

afforded considerable deference to determine whether its

requirements had been met. See Petitioner's Brief at pp.

17-18. The Government cites no history of the regulations

or any other convincing authority for this proposition.

It is well established that once having created an en-

titlement, even where such entitlement was not otherwise

required, governmental entities must then utilize fair pro-

cedures to determine who should receive the governmen-

tal benefit created. See Wolff v. McDonnell, 418 US 539,

557-558 (1974) and Morrissey v. Brewer, 408 US 471, 481

(1972). The Government is not free to arbitrarily pick and

choose those whom it deems to not merit reopening with-

out relation to the underlying relief sought. Shin v. INS,

supra, at 125, 127.

This seeming nuance of interpretational disagreement

is of significance. While the Board’s claim of authority pur-

ports to be a balancing test, it is no such test at all. As

applied by the Board, the principle of discretion permits a

one-sided review of the record. Where the Board simply

identifies what it considers to be significant negative fac-

tors, the Motion is denied. As interpreted by the Respond-

ents in the suspension application context the duty of the

Board is to review the record as a whole and to pretermit

further proceedings only where it is plain that underlying

relief cannot be granted, notwithstanding careful consid-

eration of the favorable factors contained in the record. Cf.

Ramos v. INS, 695 F.2d 181, 185-188 (Sth Cir. 1983) and

Shin vw. INS, supra.

*®

C. The Court of Appeals for the Eighth Circuit Applied the

Correct Standard of Review.

The United States Court of Appeals considered the

Board's discretionary denial on an “abuse of discretion

standard”. It is not disputed that this is the correct standard

17

of review. It is only the application of this standard to the

facts of this case which is in conflict.

What constitutes an abuse of discretion is a matter of-

ten considered by this Court and other courts. Precise def-

inition is difficult. See generally, Davis, 5 Administrative

Law Treatise, Chapter 29.3. This Court in Citizens to Pre-

serve Overton Park wv. Volpe, 401 US 402 (1971), reviewed

5 USC §$706(2)(A), of the Administrative Procedures Act, to

ascertain the meaning of the terms “arbitrary, capricious,

and abuse of discretion, or otherwise not in accordance

with law.” Citizens to Preserve Overton Park v. Volpe,

supra, at 416. This Court instructed that in reviewing a

determination, inquiry is made as to whether the decision

maker's ultimate choice involved a consideration of the rel-

evant factors and whether there was a clear error of judge-

ment. Among cases cited by the Court was the decision in

Wong Wing Hang, v. INS, 360 F.2d 715, 719 (2nd Cir.

1966).

This Court instructs that the Court of Appeals is not

empowered to substitute its judgement for that of the

agency. See Overton Park, at 416. However, the decision

must not be without rational explanation, inexplicably de-

part from established policy or rest on an inpermissible ba-

sis or on other considerations Congress could not have in-

tended to be relevant, Wang Hing Hang v. INS, supra, at

719. (per Friendly, J.). Further, pursuant to the Overton

Park decision, where a clear error in judgement has been

made, a Court of Appeals is entitled to set aside the

agency's decision.

The Court of Appeals herein found the Board's discre-

tionary denial to be an abuse of discretion with regard to

the alleged “frivolous appeals” as lacking in a legal basis.

Simply put, the Court of Appeals did not find that the ap-

peals taken were frivolous.

It is important to note at this point that a judgement as

to whether appeals are frivolous is not within the agency s

expertise. No particular deference is merited to an agency s

judgement in this regard. The Courts are frequently called

18

upon to make such determinations and are the real experts

in this type of decision making. Thus, applying well estab-

lished principles of administrative law, less deference is

due an administrative agency when making this type of de-

termination than where it applies its peculiar expertise in a

narrow area of law. See Davis, Administrative Law Trea-

tise, Chapter 29.3, pp. 343-344.

Secondly, the Court of Appeals found an abuse of dis-

cretion with regard to the alleged disregard of the immi-

gration laws. The Court of Appeals found that this type of

disregard of the immigration laws was inherent in most de-

portation cases and thus found the Board's reasoning irra-

tional or based upon considerations not intended by Con-

gress. Rios Pineda, at 534.

The Court of Appeals expressly did not substitute its

own judgement for that of the Board. The Court held that

the Board had not satisfactorily explained why the

Respondent's conduct was a particular abuse of the immi-

gration laws not inherent in deportation proceedings. 8

USC $1254(a)\(1) requires as a prerequisite to relief that an

alien be “deportable”.

The government states “The Court of Appeals commit-

ted serious error by failing to accord any geniune deference

to the Board's exercise of its discretion.”, Petitioner's Brief

at 29. The Government cites no particular aspect of the

Court of Appeal’s decision to support this contention. A

careful review of the text of the Court of Appeals decision

reveals considerable deference to the Board. The Court of

Appeals adhered to traditional guidelines for reviewing an

agency action on an “abuse of discretion standard”. The

Court premised its consideration of the subject by citation

to this Court's decision in INS v. Wang, supra, at 143 n5.

Obviously, it was mindful of the limits upon its authority.

Singing its ode to discretion, the Government fails to

point out with any precision what the Court of Appeals did

that was beyond its authority. The Government merely ar-

gues that the Attorney General has “unfettered” authority

to deny Motions. This argument is overblown and does not

19

correctly delineate the appropriate and traditional balance

between the broad authority of an administrative agency

and the appropriate role of a Court of Appeals in reviewing

that agency's decision on an “abuse of discretion” standard.

While the Court's authority is limited the Board's authority

is not unlimited, hence meaningful review in the Courts

continues to exist. See Shin v. INS, supra.

D. The Litigation of the Deportation Proceeding by Counsel

for the Respondents was not an Abuse of the Judicial

Process.

The Board and the Government argue that the course

of litigation by Counsel for the Respondents was frivolous

in conducting this litigation. The Board found and the Gov-

ernment argues that it then follows that the Respondents

should be deprived of their opportunity to present their

suspension application to an Immigration Judge and that

they should be deported from the United States forthwith,

notwithstanding any present merit in that application

Quite simply, this is an extraordinary sanction to be im-

posed

As noted above, the Respondents concede that the

sanction may be imposed in proper cases. However, it

should be imposed carefully and only where justified.

Neither the Board nor the Government suggests a

standard, other than their own subjective perception as to

what constitutes frivolous litigation, or even why standards

ought to be set at the “frivolous” level.

This Court has twice dealt with the analogous issue of

when attorney's fees ought to be awarded to a prevailing

defendant in Title VII litigation and in a 42 USC 1983 pro-

ceeding. In Christiansburg Garment Company v. EEOC,

434 US 412, 421-423 (1978), this Court considered when a

prevailing defendant ought to be awarded attorney's fees

under Title VII of the Civil Rights Act. The Court held that

where litigation was unreasonable, meritless or vexatious,

attorney's fees should be awarded. The Court found that

20

the term meritless should be understood to mean ground-

less and without foundation. The fact that a plaintiff had lost

was not in and of itself sufficient to meet that standard.

However, the term vexatious was to be understood as not

requiring subjective bad faith.

The Court held that where the EEOC had proceeded

on a question of first impression and whose contention was

not frivolous, attorney's fees would not be awarded.

Two years later in Hughes v. Rowe, 449 US 5 (1980), in

a per curiam decision, this Court reversed a Court of Ap-

peals that had awarded a $400 attorney s fee against a pris-

oner proceeding pro se pursuant to 42 USC §1983. This

Court interpreted 42 USC §1988 to award fees only where

the Christiansburg standard had been met. This Court

then reviewed the plaintiff's contentions and found that at

least one of the issues raised merited further consideration

and, hence, vacated the award of attorney's tees. This

Court noted that where even the Court of Appeals, in re-

jecting the plaintiff's claims had issued a seven page opinion

giving detailed treatment to the plaintiffs claim, that this

was a strong indication that it was not frivolous litigation.

It is well settled that deportation proceedings are civil

in nature. However, it is equally well settled that depor-

tation proceedings are of such import to the alien that an

increased burden of proof over that normally utilized in

civil cases is warranted. See Woodby v. INS, 385 US 276

(1966). Thus, an attorney's role in a deportation case may

analogized in certain respects to criminai counsel. Counsel

may legitimately consider himself bound to raise every ar-

guable issue on behalf of his client. Because one or more of

these arguments is found to be lacking in merit does not

make litigation as a whole meritless.

The Government in its brief follows the lead of the

Board in pointing to certain aspects of the litigation finding

them meritless. Petitioner's Brief at 23-27.

It is submitted that the litigation as a whole was not

utterly without a reasonable basis.

A BEST AVAILABLE COPY

21

Before considering the details of the litigation below,

the Respondents believe that the applicable standard

should be at minimum the Christiansburg standard. The

Board and the Courts should not be quick to infer an abuse

of the judicial process by the rejection of the ultimate relief

requested. The standard is whether the litigation as a whole

is so lacking in merit as to present conclusive evidence of

bad faith or have been so recklessly litigated as to be mer-

itless in the Christiansburg sense. It is important to note

that the correct analysis is that utilized by this Court in

Hughes v. Rowe in focusing on whether any of the issues

raised merited review.

The Respondents’ primary contention before the Im-

migration Judge, the Board and the Court of Appeals on the

first petition was that the deportation of the Respondents

would effect a “de facto deportation” of the citizen child.

The Government contends that this position was utterly

foreclosed at the time that it was raised. A careful review of

the decisions rendered at that time do not support the

Government's position.

First, this litigation took place within the jurisdiction of

the United States Court of Appeals for the Eighth Circuit.

In Mendez v. Major, 340 F.2d 128, 131 (Sth Cir. 1965), that

Court rejected a claim that aliens subject to the two-year

foreign residence requirement of §212(e), 8 USC 1182(e),

must be afforded a waiver of that requirement wherein they

had a United States citizen child. This decision arose in the

context of an application by aliens subject to the two-year

residence requirement as exchange aliens pursuant to

§101(a)(15\(J), 8 USC 1101(a)(15)(J), and §212(e) of the Im-

migration and Nationality Act. Such aliens entered the

United States with the knowledge that they were required

to depart at the conclusion of their visa. The Court of Ap-

peals decision relied expressly on Congressional pewer to

determine conditions underwhich aliens may enter or re-

main in the United States. The Court relied for authority

upon cases dealing with that authority. See Mendez v. Ma-

jor, supra at 131-132.

22

The Mendez decision was not binding upon the Re-

spondents. It simply did not raise the issue of de facto de-

portation of U.S. citizen children. The Respondents case

arose in deportation proceedings. Their contention was to

be considered in a different procedural and substantive

context.

The Respondents argued that their child and later chil-

dren were sufficiently assimilated into American life that

ceprivation of this status would be unconstitutional. This

argument differs from that offered in the §212(e) context

wherein the aliens themselves entered knowing that they

must depart within a set time frame. The Respondents’

claim was not definitively rejected in the Eighth Circuit

until Valadez-Salas v. INS, 721 F.2d 251, 252 (8th Cir.

1958).

Moreover, one District Court had accepted the Re-

spondents’ argument subsequent to the Eighth Circuit de-

cision. See Acosta v. Gaffney, 413 F. Supp. 827 (D.N.J.,

1976), reversed at 558 F.2d 1153 (3rd Cir. 1977). Although

ultimately reversed, Judge Stern's opinion was a forceful

argument for the proposition asserted by the Respondents.

The District Court relied upon its reading of at least one

Circuit's authority for the proposition that a de facto de-

portation would be unconstitutional.

The Court of Appeals noted that the Supreme Court

had never directly spoken on this issue, Acosta v. Gaffney,

supra, at 1158 n5. However, it agreed with other Circuits

which had rejected the claim.

The Respondents do not herein argue that this Court

should affirm based upon the de facto deportation argu-

ment. What they do argue is that the raising of this issue

was not foreclosed by precedent and was not frivolous. A

noted United States District Court Judge had agreed with

the Respondents’ position. The fact that it was later re-

versed by a Court of Appeals does not render that Judge's

decision frivolous. Likewise, the Respondents contention

does not become frivolous simply because a number of

Courts’ have rejected it.

23

In Teamsters v. United States, 431 U.S. 324 (1977), this

Court construed §703(h) of Title VII in a manner that over-

ruled at least six United States Courts of Appeals and de-

cisions in at least 30 cases. There had not been a dissenting

opinion in any of those decisions. See Teamsters v. United

States, supra, at 378-379, n2, (Marshall dissenting.). Nev-

ertheless, this Court found merit in the Petitioner's argu-

ments. Simply because a number of Courts have ruled to

the contrary does not make the argument frivolous.

Utilizing the analytical framework of Hughes v. Rowe,

supra, should one of the issues raised by the Repondents

have been meritorious, then it may not be said that the

appeals were frivolous. As outlined above, it is submitted

that the “de facto deportation” issue, though not ultimately

of sufficient merit to permit the Respondents to prevail was

not frivolous or an abuse of judicial process. It is unneces-

sary for the Respondents to justify each and every claim

raised below. These claims did not serve to prolong the

litigation, nor did they multiply its complexity. Hence,

they are essentially irrelevant.

The essential thrust of the Government's brief is that

the Court of Appeals has encouraged frivolous and dilatory

tactics by their method of review of the Board’s determi-

nation that the Respondents had filed frivolous appeals.

The Court of Appeals merely noted that as a result of the

two petitions for review, further proceedings had been

found to be necessary. Rios Pineda, at 534. While it is cer-

tainly true that more extensive discussion from the Court of

Appeals would have been helpful, it is not apparent that the

Court of Appeals would take this view in subsequent cases.

The Court stated:

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 petitions for

review in this case do not fall into the “frivolous” cat-

egory. Indeed, this Court has now twice considered

24

petitions, which regardless of their ultimate success,

have required further proceedings to fully and fairly

decide the petitioner's claim of their right to stay in this

country. Rios Pineda, at 534.

The Government focuses entirely upon the second

sentence and ignores the first sentence. It is apparent that

the Court of Appeals did consider whether the petitions

filed were themselves frivolous separate and apart from the

further proceedings that the passage of time necessitated.

The Court expressly cited LeBlanc v. INS, supra, and did

note that the Board could deny based on frivolous appeals

in an appropriate case.

In LeBlanc v. INS, the First Circuit held that the

Board had the power to deny a Motion to Reopen to assert

a suspension claim as a matter of discretion. The Court

went on to review the Board's decision on an abuse of dis-

cretion standard, citing Balani v. INS, 669 F.2d 1157, 1160

(6th Cir. 1982). See LeBlanc v. INS, Supra at 693. The

Court went on to uphold as rational the Board’s reliance on

the factor of frivolous appeals and dilatory tactics. In that

case, Petitioners argued that their delaying tactics were

themselves favorable considerations. See also Lam Chuen

Ching v. INS, 467 F.2d 644, 645 (3rd Cir. 1972).

There is no inconsistency between the decision of

Court of Appeals herein and the decision of the First Cir-

cuit. The Court of Appeals for the Eighth Circuit applied

the same legal precept, that the Board could deny as a mat-

ter of discretion where the seven years were obtained by

frivolous litigation.

Further, the Court reviewed by the same standard of

review, “abuse of discretion”. The explication of that stand-

ard by the Courts is nearly identical. Compare Rios-Pineda,

at 534, and LeBlanc v. INS at 693. The Court in Rios-

Pineda differed only in that it found the appeals that were

taken were not frivolous.

While the standard of review of the Board's determi-

nation is that of an “abuse of discretion”, less deference is

25

due the Board when its decision rests on essentially a ju-

dicial basis and not on factors within their particular exper-

tise. This is especially true where the large part of the al-

legedly frivolous litigation took place before the Court of

Appeals.

The government acknowledges that the Board does

permit applications for suspension where the seven years

were accrued during the pending of appeals. Petitioner's

Brief at 33, n21. Thus, the Board does distinguish between

cases where the seven years have accrued on a

non-frivolous basis. The Board's decision is based upon its

review of this record and does not involve a particular ap-

plication of its expertise regarding the immigration laws.

The Government further argues in its Brief that the

decision of the Court of Appeals rewards dilatory tactics.

Petitioner's Brief at 30-33. Under the Court of Appeals

analysis, the Board retains the discretion to deny Motions

as a matter of discretion in abusive cases. The Court of Ap-

peals will only step in where that discretion is abused.

In general, the Petitioner argues for unbridled discre-

tion of the Board of Immigration Appeals. The Respondents

do not quarrel with the need for the Board to retain flex-

ibility and discretion in considering Motions to Reopen. A

restrictive standard of review is appropriate and was in fact

employed by the Court of Appeals herein.

The Government's argument in this case harkens back

to a time when the Courts distinguished between rights

and privileges. This argument has been long rejected in the

due process area. See Tribe, American Constitutional Law,

Sec. 10-8, pp 509-510 (1978). Simply because an alien does

not have a right to have his deportation proceedings re-

opened, does not mean that he is not entitled to a fair and

careful consideration of the Motion. Having held out a rem-

edy, the Board may not dispense the remedy without a

rational basis. Shin v. INS, supra.

The Government further argues that the seven year

requirement of 8 USC §1254(a)(1) will become a nullity as

a result of the Court of Appeal’s decision. Petitioner's Brief

26

at 30-33. This argument is obviously overblown. The solu-

tion to this problem lies with the agency itself. See Shin v.

INS, supra, at 130-131, (dissent). Although charged with

being deportable in 1978, it was nearly two years later

when the Board affirmed the orders of deportation. The

Board itself failed to promptly dispose of these cases.

Moreover, as noted above, the Board retains the au-

thority to deny Motions as a matter of discretion based

upon an appropriate record of dilatory tactics.

The Respondents applied for voluntary departure pur-

suant to §244(e) of the Immigration and Nationality Act.

The Immigration Judge denied this application. While nei-

ther the Respondents notice of appeal or brief raised this

issue before the Board, the Board plainly had authority to

consider it. See 8 CFR §3. l(c).

By denying voluntary departure, the Immigration

Judge subjected the Respondents to the bar of §212(a)(17)

of the Immigration and Nationality Act, which at the time

of his decision, would have been a permanent bar to their

return as permanent residents. The issue of voluntary de-

parture was a close one and plainly merited appeal to the

Board and into the Courts.

The Court of Appeals considered the issue of voluntary

departure pursuant to 8 USC §1254(e) as properly before

them. See Rios-Pineda v. U.S. Dept. of Justice, 673 F.2d

225, 226 (8th Cir. 1982). The Court did not address the

issue because it remanded on other grounds. Certainly, the

denial of voluntary departure posed a non-frivolous issue

separate and apart from the grounds discussed above. This

is particularly so wherein the Respondents had a possibility

of immigrating to the United States based on the employ-

ment of the male Respondent. See §212(a)(14) and

§203(a)(6) of the Immigration and Nationality Act, 8 USC

1182(a)(14) and 1153(a)(6).

In summary, taken as a whole, the appeals taken by the

Respondents where not so frivolous as to amount to an

abuse of the judicial or administrative process that merited

the denial of their suspension application without reference

27

to its merits. The Board abused its discretion in denying the

Motion wherein the petitions where not frivolous as a mat-

ter of law. Cf Hughes v. Rowe, supra.

E. The Court of Appeals did not Err in Finding an Abuse of

Discretion wherein the Board of Immigration Appeals De-

nied the Motion Based upon Disregard of the Immigration

Laws

The Board also relied upon the Respondents’ use of a

paid smuggler to help them avoid inspection, the male Re-

spondents’ return after a forced absence of only two months

and the failure to depart voluntarily, in the denial of the

Motion. (Petitioner's Appendix 13A-14A). It is not apparent

whether this served as a independent basis separate and

apart from the perceived lack of merit in the Respondents’

appeals. More likely, these grounds appear to be cumula-

tive factors in the Board’s consideration. From a reading of

the Board’s opinion, it cannot be said that these basis would

have independently led the Board to deny the Motion.

It is important to note that the Board merely mentions

these factors. The precise nature of these events, and even

the Board’s formulation of them, are in grave question

based upon this record.

The only fact that is clear is that the Respondents paid

$450 to a smuggler to enter the United States. Whether

that occurred in 1972 or 1974 is not clear from the record.

See Brief for Respondent, supra at 1.

The nature of the circumstances under which the male

Respondent departed the United States in 1974 are quite

unclear. See Brief for Respondents, supra at pg. 1. Most

puzzling, is the Board’s statement that “prior to the male

Respondent's departure, he had been granted administra-

tive voluntary departure which was extended once and he

nevertheless failed to depart voluntarily.” (Pet. App. 13a.)

If the Board is to be understood as utilizing the term “vol-

untary departure” in its technical and not normal usage, the

statement is inexplicable. First, nothing in the record be-

28

fore this Court or before the Court of Appeals evidences the

Board's statement of facts. It appears that the Board is re-

lying on some information, probably contained in the Im-

migration Service file, which was not made of record in the

deportation proceeding. Moreover, the male Respondent's

departure could not be considered to be a deportation, as

no judicial proceedings had ever been commenced. Fur-

ther, the Government never charged either in deportation

proceedings or in criminal proceedings that male Respond-

ent re-entered the United States after having been de-

ported.

Once again, the Respondents do not contest the

Board's discretionary ability to deny a Motion to Reopen

based upon “disregard of the immigration laws”. In an ap-

propriate case, disregard for the laws of the United States

may well form an independent and compelling basis upon

which to deny a Motion to Reopen. Once more, this is not

such a case.

As the Court of Appeals noted, disregard of our immi-

gration laws is necessarily present in some form in most, if

not all, deportation proceedings. Rios-Pineda, at 534. The

government argues in its Brief that the Board has the power

to distinguish among deportable conduct to decide which

merits the sanction of a preemptory denial of a Motion to

Reopen. Brief for Petitioner at 37. Counsel for Respondent

does not quarrel with this formulation. However, there is

no indication in the Board's decision that it did so. As noted

above, these factors appear to have been considered as

cummulative factors that supplemented and re-enforced

the Board's findings of the perceived lack of merit in the

underlying litigation.

Nothing in the Board's decision distinguished the Re-

spondents from “simple overstays”. If the Board is going to

make such determinations, it must do so expressly and with |

rational explanation. Cf. Ramos v. INS, supra, at 185-188.

It is indisputable that an alien must be “deportable” to

apply for suspension of deportation. Such is a statutory pre-

requisite. Thus, it is incumbant upon the Board to distin-

29

guish the egregious offenders from the less offensive. Noth-

ing in the Respondents’ conduct identifies them as such

egregious offenders.

The Government makes the astonishing argument that

“just as a fugitive from justice is not entitled to pursue relief

through the Courts, an illegal alien who remains in the

country by evading valid orders to depart should not be

entitled to discretionary administrative relief from depor-

tation.” Petitioner's Brief, at 37. This argument entirely

overlooks the nature of the suspension of deportation rem-

edy. The Government's position would be a pro tanto re-

peal of the suspension statute insofar as discretionary ad-

ministrative relief is concerned. _

The Government further argues as if the Respondents

had been fugitives who had absconded to accure the nec-

essary seven years. This is completely without factual basis

in this record and if argued by analogy is simply inapt.

Whether the Board can deny a Motion to Reopen where

the alien's acquire seven years by absconding is not before

the Court. For present purposes, Respondents can readily

assume that such a denial would be proper. The disregard

of the immigration laws discussed by the Board does not in

any way relate to the argument advanced by the Govern-

ment.

Once again, the Government alludes to a crushing ad-

ministrative burden on the INS. See Petitioner's Brief, at

39. No support for this assertion is apparent from the record

and none is suggested by the Petitioner. The Government

appears to be arguing for the ability of the Board to deny

Motions wholesale without consideration of the individual

merits of each.

The cases cited by the Government are simply inap-

posite to the principle asserted. None of these cases sup-

port the argument made.

In summary, the Respondents accept the authority of

the Board of Immigration Appeals to deny Motions to Re-

open based upon egregious “disregard of the immigration

laws’. No such egregious disregard was found by the Board

30

as an independent basis of denying the Motion. Moreover,

the Board utterly failed to distinguish the disregard present

in this case from that present in any Motion to Reopen to

apply for suspension of devortation.

IV. CONCLUSION

The Respondents respectfully request that this Court

affirm the decision of the United States Court of Appeals

and remand for further proceedings consistent with this

Court’s opinion and that of the U.S. Court of Appeals for

the Eighth Circuit.

Respectfully submitted,

Lawrence H. Rudnick

ORLOW, FULLER, RUBIN & STEEL

936 Public Ledger Building

Philadelphia, PA 19106

(215) 922-1181

Roman de La Campa

2219 Allan Street

Sioux City, Iowa 51103

(814) 258-8852

Counsel for Respondents

March 4, 1985