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Torres-Hernandez v. Immigration & Naturalization Serv. - 812 F.2d 1262 (9th Cir. 1987)

Rule:

A motion to reopen must be supported by newly discovered material evidence which establishes a "prima facie case for relief." A motion to reopen will be denied unless the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. 

Facts:

 Petitioner immigrant was admitted to the United States as a lawful permanent resident because of his marriage to a United States citizen. In 1980, petitioner was convicted in California of two counts of assault with a deadly weapon and sentenced to seven years in state prison. After petitioner's parole, respondent Immigration and Naturalization Service issued an order to show cause and a warrant of arrest under 8 U.S.C.S. § 1251(a)(4) (1982). Respondent found petitioner deportable under 8 U.S.C.S. § 1251(a)(4) and this was affirmed by the lower court. While on appeal to the court, petitioner made a motion to the lower court to reopen the deportation hearing under 8 C.F.R. § 3.2 (1986) claiming that new and material facts were discovered that were not available at the time of the deportation hearing which justified reopening the deportation proceedings. The lower court denied the motion. Petitioner contended that the lower court abused its discretion in denying his motion to reopen deportation proceedings for purposes of applying for discretionary relief under 8 U.S.C.S. § 1182(c).

Issue:

Did the lower court abuse its discretion in denying petitioner’s motion to reopen the deportation proceedings for purposes of applying for discretionary relief?

Answer:

No.

Conclusion:

The Court agreed with the ruling of the lower court and posited that the petitioner should not be entitled to evade the requirements of 8 U.S.C. § 1182(c) by filing a frivolous appeal. Furthermore, the Court noted that the evidence to be presented was not newly discovered.

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