Ch 5-Motions before the Immigration Court - AILA webCLE

136 IMMIGRATION JUDGE BENCHBOOK
(BIA 1992); Matter of Barrera, 19 I&N Dec. 837 (BIA 1989); Matter of Rodriguez-Vera, 17 I&N Dec. 105
(BIA 1979); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of Lam, 14 I&N Dec. 98 (BIA 1972).
7. A motion to reopen will not be granted for the purpose of providing the alien an opportunity to apply for
any form of discretionary relief if the alien’s rights to make such application were fully explained to him or
her by the Immigration Judge and he or she was afforded an opportunity to apply at the hearing, unless the
relief is sought on the basis of circumstances that have arisen subsequent to the hearing. 8 C.F.R.
§§1003.23(b)(3); Matter of Barrera, 19 I&N Dec. 837 (1989).
8. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied
by the appropriate application for relief and all supporting documentation. 8 C.F.R. §§1003.23(b)(3),
1208.4(b)(3)-(4). But see Matter of Yewondwosen, 21 I&N Dec. 1025 (BIA 1997) (holding that where an
alien has not strictly complied with 8 C.F.R. §3.2(c)(1) (1997) by having failed to submit an application for
relief in support of a motion to reopen or remand, and the INS affirmatively joins the motion, the BIA or an
Immigration Judge may still grant the motion in the interests of fairness and administrative economy). Further,
an alien seeking to reopen proceedings to establish that a conviction has been vacated bears the burden
of proving that the conviction was not vacated solely for immigration purposes. Matter of Chavez-Martinez,
24 I&N Dec. 272 (BIA 2007).
9. An alien must show prima facie eligibility for the requested relief and that relief is warranted in the exercise
of discretion. INS v Abudu, 485 U.S. 94 (1988); INS v. Wang, 450 U.S. 139 (1981); Matter of C-C-, 23
I&N Dec. 899 (BIA 2006) (finding no prima facie showing of relief in alien’s motion to reopen based on
forced sterilization practices in China where evidence and country information do not establish forced sterilization
of other Chinese nationals with foreign-born children returning to the alien’s home province); Matter
of Coelho, 20 I&N Dec. 464 (BIA 1992); Matter of Barrera, 19 I&N Dec. 837 (1989); Hernandez-Ortiz v.
INS, 777 F.2d 509 (9th Cir. 1985) (could properly deny motion to reopen if it did not present prima facie
case); Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir.1985) (reopening to apply for asylum improperly
denied since there was an adequate prima facie showing which required a hearing); Marquez-Medina v. INS,
765 F.2d 673 (7th Cir. 1985) (same; suspension of deportation); Samini v. INS, 714 F.2d 992 (9th Cir. 1983)
(prima facie showing of eligibility based on totality of circumstances warranting hearing); Matter of Escobar,
18 I&N Dec. 412 (BIA 1983) (no prima facie showing of eligibility for suspension of deportation or asylum);
Matter of Patel, 16 I&N Dec. 600 (BIA 1978) (no prima facie showing of hardship where conclusory assertions
of hardship insufficient). A prima facie showing has been described as proof sufficiently strong to suffice
on its own until it is contradicted or overruled by other evidence. Conclusory and conjectural allegations
are insufficient to establish eligibility for reopening. Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA
1981), aff’d, 692 F.2d 595 (9th Cir. 1982); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972).
10. A prima facie showing of apparent eligibility entails statutory eligibility and that the relief may be warranted
as a matter of discretion. INS v. Wang, 450 U.S. 139 (1981); INS v. Bagamasbad, 429 U.S. 24 (1976);
Matter of Reyes, 18 I&N Dec. 249 (BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981),
aff’d, 692 F.2d 595 (9th Cir. 1982); Matter of Lett, 17 I&N Dec. 312 (BIA 1980); Matter of Cavazos, 17 I&N
Dec. 215 (BIA 1980); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979) (discretion clearly unwarranted
since applicant was serving sentence for recent murder of wife); Matter of Sipus, 14 I&N Dec. 229
(BIA 1972); Matter of Lam, 14 I&N Dec. 98 (BIA 1972).
11. Equities acquired after a final order of deportation may be given less weight than those acquired before
the alien was found deportable. Matter of Correa, 19 I&N Dec. 130, (BIA 1984). But see Matter of Rodarte,
21 I&N Dec. 150 (BIA 1996) (motion to reopen granted and remanded to Immigration Judge for a hearing on
adjustment of status and 212(c) applications; the new evidence requirement for reopening was satisfied by the
presentation of equities acquired since respondent’s deportation hearing).
12. Even if a prima facie case of apparent eligibility is shown, the motion to reopen can be denied in the exercise
of discretion. 8 C.F.R. §1003.23(b)(3); INS v. Rios-Pineda, 471 U.S. 444 (1985) (Board has broad dis-