Seyed Mohammad Samimi v. Immigration and Naturalization Service

Petitioner, Seyed Mohammad Samimi, entered the United States as a non-immigrant student. He overstayed his authorized time, submitting a late application for an extension. The INS began deportation proceedings grounded on his overstay. The Immigration Judge found him deportable. The Board of Immigration Appeals affirmed and denied a subsequent motion to reopen based on an application for asylum. The BIA found that Samimi failed to explain adequately his failure to pursue asylum at the prior hearing and had failed to make a prima facie showing of likelihood of persecution. Samimi appeals in this court the BIA’s order of deportation and its denial of the motion to reopen. We affirm the determination of deportability, but remand for a hearing on the application for asylum.

Discussion

I. Deportation

Samimi admitted the facts necessary to a finding that he is deportable as an overstay. He argues, however, that because he had a pending, albeit late, application for extension and remained a full-time student at all times, the violation of status for which he was found deportable was only technical and non-willful. He cites Mashi v. INS, 585 F.2d 1309 (5th Cir.1978) for the proposition…