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Millare v. Immigration and Naturalization Service

argued submitted honolulu hawaii: May 3, 1993.

VIRGINIA GAILA MILLARE, AKA VIRGINIA GANADO GAILA AKA VIRGINIA P. PARCASIO, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of a Decision of the Board of Immigration Appeals. INS No. A37-629-272.

Before: Goodwin, Tang, and Noonan, Circuit Judges.

MEMORANDUM

Virginia Gaila Millare appeals the July 12, 1990 decision of the Board of Immigration Appeals ("BIA") upholding the Immigration Judge's ("IJ") denial of discretionary relief from deportation, and the October 15, 1991 order denying Millare's motion to reopen proceedings and remand to the IJ.

Because the parties are familiar with the facts and background of this appeal, we need not repeat them except as necessary in discussing the points at issue.

Discussion

The BIA's denial of Millare's motion to reopen and remand is reviewed for an abuse of discretion. I.N.S. v. Doherty, 112 S. Ct. 719, 724-25 (1992); Ro v. I.N.S., 670 F.2d 114, 116 (9th Cir. 1982).

A motion to reopen may be granted if a petitioner introduces new and material evidence, establishes a prima facie case for relief, and demonstrates entitlement to relief as a matter of discretion. Doherty, 112 S. Ct. at 725. See also I.N.S. v. Wang, 450 U.S. 139, 141 (1981) (the applicant must establish a prima facie case of eligibility for the relief sought); I.N.S. v. Rios-Pineda, 471 U.S. 444, 449 (1985) (applicant must demonstrate that she warrants a favorable exercise of discretion).

Millare presented evidence that, since the date of the hearing before the IJ, she had divorced her first husband in the Philippines, married James Galinato, had a second child with Galinato, and had obtained a determination in a paternity proceeding that her first child was Galinato's son. Millare also showed that her new husband, Galinato, had become a naturalized citizen. Millare clearly introduced new facts which were unavailable at the previous hearing.

We have previously rejected the government's argument that this evidence had been available on appeal to the BIA and thus did not warrant reopening of the proceedings. In Ro, 670 F.2d at 116, for example, we reversed a BIA denial of a motion to reopen where the petitioner had sought to introduce evidence of the birth of a new child. We held that "petitioners' United States citizen child was not born until after the hearing before the IJ. Evidence of the birth therefore could not be presented 'at the former hearing.'" Id. The same is true regarding the evidence Millare sought to introduce.

Millare also established a prima facie case for discretionary relief. The BIA held that Millare had failed to establish a prima facie case, because, despite the evidence of two additional family members in the United States, these equities did not "counterbalance the numerous adverse factors present in the record." Because the factors adverse to discretionary relief were not "numerous," we conclude that the BIA, in effect, gave no weight to Millare's changed family circumstances. As we stated in Hernandez-Robledo v. I.N.S., 777 F.2d 536, 541 (9th Cir. 1985):

Congress' fundamental purpose in enacting section 241(f)(1) of the INA was to keep family units together by precluding deportation of aliens who had gained entry by fraud or misrepresentation, if the effect of deportation would be to separate families composed in part of a United States citizen or lawful permanent resident.

(Citations omitted.)

The BIA clearly did not give sufficient weight to Millare's additional family connections in the United States in considering her motion to reopen. In view of the BIA's determination in its July 12, 1990 decision that Millare's family connections in the Philippines outweighed those in the United States, the BIA abused its discretion in holding that Millare had not established a prima facie case for reopening the proceedings. See Samimi v. I.N.S., 714 F.2d 992, 995 (9th Cir. 1983) (it is an abuse of discretion for the BIA to deny the motion to reopen if petitioner has presented a prima facie case for relief).

Moreover, the BIA has not "provided a reasoned explanation for the exercise of its discretion to refuse to reopen based upon 'legitimate concerns.'" Mattis v. I.N.S., 774 F.2d 965, 968 (9th Cir. 1985), citing Rios-Pineda, 471 U.S. at 451-52. In its decision that Millare was not entitled to reopening as a discretionary matter, the BIA relied on the fact that Millare ...


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