Matter of Escobar (Board decision, June 28, 1983)

Plain-English summary

A citizen of El Salvador entered the United States without inspection, conceded deportability, and initially told the Immigration Judge that he did not want to apply for asylum. The Board held that his appeal was timely because the tenth day fell on a Saturday and the agency had not shown that its office was open that day. It rejected his requests for voluntary departure and his claim that the hearing was unfair because of the absence of counsel, finding no eligibility or prejudice. It denied his motion to reopen for asylum and withholding because he had not reasonably explained why he failed to apply before the hearing and had not shown prima facie eligibility.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1158(a), 1251(a)(2), and 1253(h); 8 C.F.R. §§ 1.1(h), 3.2, 3.3, 103.5, 208.11, 242.21, 242.22, 243.1, and 244.1
• Outcome: The Immigration Judge's decision was affirmed, the motion to reopen was denied, and the appeal was dismissed.
• Key point: When the last day of an appeal period falls on a Saturday, the period runs to the next non-weekend, non-holiday day when the agency office is not shown to be open on Saturday.

Full text (BIA official public release)

Interim Decision #2944

MATTER OF ESCOBAR

In Deportation Proceedings

A-26365952

Decided by Board June 28, 1983

(1) The regulations provide that an alien shall have 10 days within which to perfect an appeal from a decision of an immigration judge. 8 IC_F.R. 2422L The procedures for computing the period of time for taking an appeal are silent as to the effect of the last day of an appeal period falling on a Saturday. 8 C.F.R. 1.1(h). (2) The Service's interpretation of this ambiguity would have the effect of shortening the period under 8 C.F.R. 242.21 within which an alien could take an appeal. Absent a showing that the Service's oMees are open on Saturdays, there is no legitimate distinction between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect his appeaL (3) Consistent with the Congressional authorization and approval manifested in Rule 6(a), Fed. R. Civ. P., and the pa Maple of fairness, the last, day of an appeal shall be included, in computing the appeal period,, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. (4) Where the respondent conceded deportability at his hearing and does not contest that finding on appeal, has not shover) eligibility for voluntary departure, and specifically declined to apply for asylum, he has not shown that he was prejudiced by the absence of counsel or that he was denied a full and fair hearing as required by due process. (5) The respondent's motion to reopen for the purpose of applying for asylum will be denied where he has not reasonably explained his failure to assert the claim prior to the com- pletion of the deportation hearing and where prima facie eligibility for the requested relief has not been established. CHARGE: ORDER: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(2)(2)1—Entered without inspection
ON BEHALF OF BESPONDLNT: •
ON BEHALF OF SERVICE:
Marc Van Der Host, Esquire
Ronald E. LeFevre
3689 18th Street
Chief Legal Officer
San Francisco, California 94110
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The respondent appeals from the May 4, 1983, summary decision of the immigration judge, finding him deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and ordering his deportation to El Salvation During the pendency of the appeal, the

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respondent filed a motion to reopen for the purpose of applying for asylum. See 8 C.F.R. 208.11. The motion will be denied and the appeal dismissed. The respondent is a. 40-year-old native and citizen of El Salvador. He entered the United States without inspection on March 2, 1983. At his deportation hearing the respondent admitted the factual allegations, conceded deportability, and informed the immigration judge that he did not wish to apply for asylum. Before reaching the merits of the respondent's appeal we must address an initial question of our jurisdiction over this matter. The Service contends that the respondent's appeal was not timely .filed, that the immigration judge's decision is, therefore, administratively final, and that as a result this Board lacks jurisdiction to hear the appeal. The Service argues correctly that an appeal, in order to be timely, must be taken within 10 days after an immigration judge renders a decision, and that failure to do so results in the decision becoming administratively final. See 8 C.F.R. 3.3, 242.21, and 243.1. The Service concludes that as the respondent's appeal peribd ended on Saturday, May 14, 1 lP2, in order to perfect his appeal he was required to file his Notice of Appeal (Form I-290A) by the dose of business on Friday, May 13, 1983. This conclusion is based on the Service's interpretation of 8 C.F.R. 1.1(h) 1 thatwhenthelastdayoftheapealperiodfalsonaSaturdaythatday is included in computing the 10 day appeal period. We do not agree with this interpretation. We note that the language of 8 C.F.R. 1.1(h) tracks the language contained in Rule 6(a) of the Federal Rules of Civil Procedure prior to that rule's amendment in 1963. 2 Rule 6(a) was amended in 1963 to bring it into conformity with the amendment of Rule 77(c), deleting Saturday as a day in which the clerk's office was to be open during business hours. Rule 6(a) now provides: In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of cocoa, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be

8 C.F.R. L1(h) provides:
The term "day" when computing the period of tune for taking any actiun provided in this chapter including the taking of an appeal, shall include Sundays and legal holidays, except that when the last day of the period so computed falls on a Sunday or a legal holiday, the period shall run until the end of the next day which is neither a Sunday nor a legal holiday.
2 Rule 6(a) provided in relevant pa...
In computing any period oftime prescribed or allowed by these rules; by order of court, or by any applicable statute, the day Of the act, event, or default after which the designated period of time begins to run is not to he included. The last day of the period so computed is to be included, unless itis a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday.

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included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The amended language clearly reflects Congress' intent not to include as the last day of an appeal period a day in which the clerk's office is not open for business. The regulations provide that an alien shall have 10.days within which to perfect an appeal from a decision of an immigration judge. 8 C.F.R. 242.21. The procedUres outlined in 8 C.F. R. 1.1ChMor computing the period of time for taking an appeal are silent, as to the effect of the last day of an appeal period falling on a Saturday. The Service's interpreta- tion of this ambiguity would have the effect of shortening the period under 8 C.F.R. 242.21 within which an* alien could take an appeal. Absent a showing that the Service's offices are open on Saturdays, there is no legitimate distinction between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect his appeal. We decline, therefore, to adopt the Service's interpretation of 8 C.F.R. 1.1(h). We defer, instead, to the Congressional authorization and approval mani- fested in Rule 6(a), Fed. R.. Civ. P., and the interest of fairness in holding that in computing the period of time under 8 C.F.R. 1.1(h) for taking an appeal, the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. In the present case, the respondent's appeal period ended on Saturday, May 14, 1983. He filed his Notice of Appeal with the Service's San Francisco office on Monday, May 16, 1983, that office apparently not being open on Saturday. We conclude, pursuant to our interpretation of 8 C.F.R. 1.1(h), that the respondent's appeal was timely filed and.that we may properly exercise our jurisdiction over this matter. See 8 C.F.R. 3.1(b)(2). On appeal, the respondent contends that the immigration judge should have granted him voluntary departure and that he was denied his right to effective assistance to counsel. The appeal is without merit. The respondent freely conceded his deportability for entry without inspection under section 241(a)(2) of the Act and does not now contest that finding. His deportability has been established by evidence which is clear, convincing, and unequivocal as required by Woodby v. INS, 385 U.S. 276 (1966). Furthermore, we find no indication in the record or in the respondent's brief and supporting documents on appeal that he requested or was eligible for voluntary departure. There has been no ,

showing that the respondent had theavaable funds and the immediate means with which to depart promptly from the United States as required by the regulations. 8 C.F.R. 244.1. Accordingly, there is no basis to conclude that the respondent was improperly denied voluntary departure. Nor is there any basis to conclude that the respondent was denied his 414
 Interim Decision #2944 right to counsel or that he was prejudiced by the absence of counsel at his deportation hearing. Respondent's counsel states on appeal that he is informed that the respondent waived his right to counsel. There is no evidence in the record and none submitted by the respondent on appeal that his waiver was not competently, understandingly, and voluntarily made. The requirements of due process under the Fifth Amendment are satisfied by a full and fair hearing. Ramirez v. INS, 550 F.2d 560 (9 Cif.. 1977). An alien has been denied a full and fair hearing as required by due process only if the matter complained of causes the alien to suffer some prejudnce. Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979). The respondent has not shown that he was prejudiced by the absence of counsel at his deportation hearing. The respondent conceded his deportability for entry without inspection and does not contest his deportability on appeaL He has not shown that he was statutorily eligible for voluntary departure and specifically informed the immigration judge that he did not wish to apply for asylum. The only remaining issue to be decided is the respondent's motion to reopen for the purpose of applying for asylum and withholding of depor- ,

tation under sections 208(a) and 243(h) of the Act, 8 U.S.C. 1158(a) and 1253(h).3 For the reasons stated.helow, the motion will be denied. A motion to reopen deportationproceedings for the purpose of apply- ing for asylum or withholding of deportation will not be gralited where prima fade eligibility for such relief has not been established or the alien has not reasonably explained his failure to assert the claim prior to completion of the deportation hearing. 8 C.F.R. 208.11. See Martinez- Romero v. INS, 692 F.2d 595 (9 Cir. 1982), affg Matter of Martinez- Romero, 18 I&N Dec. 75 (BIA 1981). Nor will it be granted unless the evidence sought to be offered is material, was not available, and could not have been discovered or presented at the time of the original hearing. 8 C.F.R. 3.2, 103.5, and 242.22. The respondent's motion does not satisfy the requirements set forth in the regulations. The evidence submitted with the motion in support of the persecution claim was available at the time of the deportation hearing. The respondent has not reasonably explained his failure to timely file his asylum application. The vague and unsubstantiated assertion that he was operating under misinformation when he infornied the immigration judge that he did not wish to apply for asylum is not sufficient. 8 C.F.R. 208.11. See Matter of Jean, 17 I&N Dec. 100. (PIA 1979). We find the respondent's explanation incredible in view of his abandonment of fam- ily and country and his journey from El Salvador to the United States for the claimed purpose of seeking asylum. Moreover, the respondent

8 Asylum requests made after the institution of deportation proceedings shall also be considered requests for withholding of deportation. 8 C.P.R. 208.3(b).

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has not shown prima fade eligibility for the requested relief.
The law is well settled that an applicant for asylum or withholding of deportation hears, the burden of proving that he has a well founded fear
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of persecution if returned to his native land. See Haitian Refuyee Center v. Smith., 676 F.2d 1023 (5 Cir. 1982); Fleurinorv. INS, 585 F.2d 129 (5 Cir. 1978). This language refers to more than the alien's subjective state of mind. He must demonstrate a realistic likelihood that he will be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion. See McMullen v. INS; 658 F.2d 1312 (9 Cir. 1981); Khalil v. District Director of Immigration and Naturalization Service, 457 F.2d 1276 (9 Cir. 1$72); Kovac v. INS, 407 F.2d 102 Cir. 1969). The respondent has not shown that he will be persecuted or that helms a well-founded fear of persecution within the meaning of section 208(a) or 243(h) of the Act. Our conclusion as to the respondent's claim is the same whether we apply a standard of "dear probability," "good reason," or "realistic likellood." See Rejaie v. INS, 691 F.2d 139 (3 Cir. 1982).
The respondent has presented no objective evidence which indicates that he as an individual would be persecuted or supports his generalized assertions of persecution. Such assertions, standing alone, are not sufficient. See Rejaiev_ 7NS surav, - Mogheinion, v. United States Depart- ,

' ment of Justice, 577 F.2d 141 (9 Cir. 1978). Although the respondent stated that he was arrested and detained for 30 days, there is no evi- dence that he was fiirther threatened or harmed following his release. We note that the respondent stated that, in fear of being persecuted he abandoned his family and country and fled to Mexico where he lived for several months. There is no indication that the respondent sought asy- lum in Mexico. Moreover, in spite of his claimed fear of being persecuted, he returned to El Salvador and resumed living with his family where he remained for several months before departing for the United States.