Narciso Edgardo Inciong Villena v. Immigration & Naturalization Service

622 F.2d 1352 Narciso Edgardo Inciong VILLENA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 78-2954. United States Court of Appeals, Ninth Circuit. June 4, 1980. Leslie J. Frank, Frank & Rappaport, Los Angeles, Cal., for petitioner. Howard D. Gest, Asst. U. S. Atty., Los Angeles, Cal., for respondent. Petition to Review a Decision of the U.S. Immigration & Naturalization Service. Before WRIGHT, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG, and TANG, Circuit Judges. * CHOY, Circuit Judge: 1 Villena petitions for review of decisions of the Board of Immigration Appeals (the Board) dismissing his appeal and denying his motion to reopen his deportation proceedings. The appeal to the Board was from the order of the immigration judge denying Villena's application for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254 . The motion to reopen was filed while that appeal was pending and was based upon new facts supporting his claim of eligibility for relief. The issue raised is whether the Board abused its discretion by concluding that neither (1) the facts alleged in the application…

Villena petitions for review of decisions of the Board of Immigration Appeals (the Board) dismissing his appeal and denying his motion to reopen his deportation proceedings. The appeal to the Board was from the order of the immigration judge denying Villena’s application for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254 . The motion to reopen was filed while that appeal was pending and was based upon new facts supporting his claim of eligibility for relief. The issue raised is whether the Board abused its discretion by concluding that neither (1) the facts alleged in the application nor (2) those alleged in the motion established the extreme hardship required by § 244 of the Act, 8 U.S.C. § 1254 .

We conclude that the Board did not abuse its discretion by denying the original application, but that the additional facts alleged in the motion to reopen entitled Villena to a hearing to determine whether he is eligible for and whether he merits the requested relief. Thus, we hold that the Board abused its discretion by denying Villena’s motion to reopen his deportation proceedings, and we reverse and remand for proceedings…

dissenting:

The majority adopts a standard of review for denials of motions to reopen which substantially, and unwisely, restricts the discretion of the Immigration and Naturalization Service (INS) in deciding when to reopen a case. I concur in Judge Goodwin’s dissent in Wang v. INS, 9 Cir., 622 F.2d 1341 , ante 622 F.2d at 1351 , and I agree with Judge Sneed’s conclusion, in his dissent to that same opinion, that the discretion of the INS should be broad. I write separately to indicate my disagreement with the majority’s holding that a prima facie showing of eligibility for discretionary relief is sufficient to require reopening.

Motions to reopen are created by regulation; they have no origin in statute. They permit the INS to take a fresh look at a case which it has previously decided, but in which significant developments have occurred since the case was last opened:

8 C.F.R. § 3.2 (1980). By requiring material new developments in a case, this regulation, which stipulates when the INS cannot reopen rather than when it must reopen, suggests that reopening should occur when the old deportation order would be unfair in the light of new developments. Identification of such…

specially concurring.

I concur under the compulsion of the majority opinion in Wang v. I&NS decided this day, 9 Cir., 622 F.2d 1341 . I believe that Wang marks an unwise change in the immigration law of the circuit. But that change has been made and the court is bound by it.

(with whom KENNEDY, Circuit Judge, concurs) (concurring in the result only and dissenting from the majority opinion in its entirety):

I would reverse and remand this case for the reasons set forth in my opinion in Wang v. INS, 9 Cir., 622 F.2d 1341 .