Matter of Mladineo

On February 6, 1973, we dismissed for lack of jurisdiction as untimely respondent's appeal from an order of an immigration judge finding her to be deportable and granting her the privilege of voluntary departure. She retained new counsel, who on August 14, 1973 wrote a letter to the District Director requesting that the hearing be reopened to permit respondent to apply for withholding of deportation to Chile under section 243(h) of the Immigration and Nationality Act. Appended to the letter is an unsigned, unsworn declaration by respondent to the effect that she had been prejudiced economically in Chile because of her refusal to become a Socialist or a Communist. Contained in the record is a notice of appeal on Form I-290A dated August 15, 1973, purporting to appeal from a decision dated August 2, 1973. The record contains no decision of that date which is within our appellate jurisdiction. In a memorandum in the file dated October 2, 1973, the Service's trial attorney expressed the view that the purported appeal, even

if treated as a motion to reopen, will have to be adjudicated by the

Board. The record has been submitted to the Board by the Service,

presumably on the notion that our order dated February 6, 1973

brings this case within the purview of 8 CFR 32, which provides,

in pertinent part that, "Reopening or reconsideration of any case in which a decision has been made by the Board ... shall be only

upon written motion to the Board."

The quoted provision contemplates the situation where a deci-

sion on the merits has been made by us. Obviously, if a motion is

then made to reopen or reconsider our decision, the motion should

be considered and adjudicated by us. The same principles do not

apply where the Board's decision was not on the merits of the

case. Where, as here, dismissal by the Board was solely for lack of

jurisdiction, so that we made no adjudication on the merits, the

attempted appeal is nugatory and the decision of the immigration

judge remains undisturbed. If thereafter a motion is made to

reopen or reconsider that decision, there appears to be no reason

why the immigration judge should not adjudicate it, as he does in

other cases where there was no appeal from his prior order.

Rather than remand the record to the immigration judge for

adjudication, we shall take this case on certification under 8 CFR

3.1(c) and determine the motion ourselves. We do this because so

much time has already elapsed since the motion was filed and

because the request for reopening is so patently without merit.

Oral argument, which is requested, will be denied for the same

reasons.

The motion to reopen is unsworn and unsupported by affidavit

or other evidence. The respondent's conclusory declaration that

she had suffered economic and employment privation in Chile

because of her refusal to become a Socialist or a Communist does

not make out a prima facie showing that her fear of persecution in

Chile is well-founded, especially since the prevailing regime there

is now anti-Socialist and anti-Communist. Treating the papers

before us as a motion to reopen, we conclude that the motion

should be denied.

ORDER: The motion is denied.