SUN

11 I. & N. Dec. 872

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1661
• Status: Published

Opinion

Interim Decision #1661

- 3fArrza or Sulu In Deportation Proceedings • A-10767108 Decided by Board October 26 3 .1066

Reopening of proceedings to permit application for withholding of deportation under section 213(h) of the Immigration and Nationality Act, as amended by the ..iket of October 3, 1965, ie not warranted in the case of respondent who fears criminal prosecution for misappropriation of state funds, if deported to Formosa, and who, on substantially the same facts, applied for and was denied such relief under the statute prior to amendment. DEVOISTAISIM ; .Act of 1962 —Section 241(a) (2) (8 U.S.C. 325/3 —Nonimmigrant ' (government employee)—remained longer.

The 'record relates to a 37-year-old male alien, a native and citizen of China, whose wife and two Children are also natives and citizens of: that country and reside on Formosa. The respondent was ad- mitted to the United States as a nonimmigrant government employee of China on August 18, 1356. Approximately one year after such admission he abandoned his lawful status. His deportability is es- tablished and uncontested.. He has been granted the privilege of voluntary departure. These deportation proceedings were instituted on or about April 16, 1963. In the course thereof, the respondent applied for adjust- ment of his. status to that.of a permanent resident under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255). An appli- cation for temporary withholding of his deportation under section 243(h) of the Immigration and Nationality Act (8 ;U.S.°. 1258) was specifically waived by respondent who was then represented by counsel. The relief of suspension of deportation under 'section 244(a) of the Immigration and Nationality Act (8 U.S.C. 1254) was not applied for at that time, apparently because respondent had not completed seven years' physical presence within the United States .as required by the statute. On September 26, 1963, the special inquiry officer denied the re- spondent's application for adjustment of his status to that of a 872 Interim Decision #1661

permanent resident. On April 24, 1961, this Board affirmed that decision of the special inquiry officer:. On June 1964, we denied the respondent's motion for reopening of the proceedings to permit him to Ale and prosecute an application for temporary withholding of -his deportation to Formosa. The case is now again before us for consideration by way of a motion to reopen the proceedings to per- mit the respondent to file and prbsecute applications for temporary withholding of his deportation under section 243(h) of the Immi- gration and Nationality Act, and/or suspension of his deportation under section 244(a) (1) of that Act. The Service oppose., the granting of this motion insofak as it is directed to permitting the respondent- to file and prosecute an appli- cation for suspension of deportation. It does so on the ground that favorable exercise of discretion. to grant suspension of deportation is not merited by the respondent who, following admission as a non- immigrant, has acquired minimum eligibility for such relief by taking advantage of every administrative and other remedy avail- 'able to him. The record before us supports the Service position in this respect. Accordingly, and on the basis of s prior precedent de- cision of this Board (Matter of L—, A-11196360, 5/27/66; Int. Dec. *1596), the respondent's motion is denied insofar as it is concerned with reopening the proceedings to permit him to file and prosecute an application for suspension of deportation. The Service is also _opposed to favorable action on the respondent's motion insofar as it relates to the question of temporary withholding of his deportation to Formosa. Basically, its position in this respect is predicated on the fact,that we denied. a similar motion on July 13, 1964, after carefully considering substantially the same facts on which the present motion is predicated. It indicates awareness of the fact that section 243(h) of the Immigration -and Nationality Act has been amended since the entry of our last order, but claims that the test for, this relief provided for under the new law is not so different from that spelled out in the old law as to require reopen- ing the proceedings now. It asserts that the evidence on this point which lire previously considered and is still relied on by respondent clearly does not meet the new statutory test and, therefore, does not require reexamination. Again, we agree with the Service and are of the opinion that favorable action on this portion of the respond- ent's motion is not warranted: 8 CFlt 242.17(d) requires an application for relief under section.' 243(h) of the Immigration and Nationality Act to be made in the course of the hearing before the special inquiry officer; and 8 CFR.

873 Interim Decision #1661 242.22 provides that a motion to reopen to consider an application for such relief will not be granted if the alien's right to apply was fully explained to him by the special inquiry officer, and he was afforded an opportunity to apply at the hearing. As indicated above, this record shows that the special inquiry officer complied strictly with the requirements of 8 CFR 242.22, and the respondent specifically waited his right to apply. The record. also reflects that the respondent was represented by competent and experienced coun- sel at the time he did so. We are aware that 8 CFR 242.22 does authorize reopening where the request therefor is based on circumstances arising after the hear- ing; that section 243(h) as originally enacted made the test for re- lief thereunder "physical persecution"; and that the October 3, 1965 amendment to the statute (P.L. 89-236, 89th Cong., H.R. 2580) al- tered the test to "persecution on account of race, religion or po- litical opinion." We, however, do not think these factors call for favorable action on the motion. On June 9, 1961, when this Board denied a similar motion in this case, our decision was based on a thorough review of evidence de- signed to establish that respondent's deportation-to Formosa would subject him to "physical persecution." Specifically, the evidence then considered was intended to show that respondent might be put to death by Formosan authorities. It revealed that his fear of such a fate was predicated on the fact that -he had received and/or re- quested from them funds. to further the purpose for which they had permitted him to come to the United. States, for their ultimate bene- fit as well as his, whereas he had, in fact, long since abandoned pur- suit of that goal and was advancing his own interests which were inconsistent therewith. The present motion is based on the same evidence we previously found wanting as proof of possible "physical" persecution. And- counsel's arguments in support of this motion are still directed to the respondent's fear of "physical" puitishment for conduct clearly criminal in nature rather than political. The contentions now voiced do not tend to show that respondent's case falls withiii the amended statute, to wit: that he fears "persecution on account of race, re- ligion or political opinion." Therefore, we find that this motion does not satisfy the requirements of 8 OFR 3.8 that it be based on new facts to be proved at the reopened hearing. • In other words, counsel seeks to avail himself of the statute as amended to delete the word "physical" from its provisions. How- ever, he argues solely that the respondent will be subject to "physi- 874 Interim Decision 411381 cal" persecution, an argument which has previously been considered and rejected by this Board. Accordingly, no useful purpose would be served to now reopen proceedings for consideration under the amended statute. The motion, therefore, will not be granted. ORDER: It is ordered that the motion be and the same is hereby denied.