Section 244(a)(1) of the Immigration and Nationality Act allows
the Attorney General to suspend an alien's deportation if the alien
has been present in the United States for a continuous period of at
least seven years, is of good moral character, and demonstrates
that deportation would result in extreme hardship to the alien or
to the alien's spouse or child, who is a United States citizen.
Even if these prerequisites are satisfied, the Attorney General has
discretion to refuse to suspend deportation. While the Act itself
does not provide for reopening suspension proceedings once
suspension has been denied, the Attorney General has promulgated
regulations under the Act providing that a motion to reopen will be
denied unless reopening is sought on the basis of circumstances
that have arisen subsequent to the original deportation hearing.
The Attorney General has delegated his authority and discretion to
suspend deportation to special inquiry officers of the Immigration
and Naturalization Service (INS), whose decisions are subject to
review by the Board of Immigration Appeals (BIA). Respondents
husband and wife, citizens of Mexico, were smuggled illegally into
the United States in 1974. Respondent husband was apprehended in
1978, and, although at his request he was granted permission to
return voluntarily to Mexico in lieu of deportation, he refused to
leave as promised. Deportation proceedings were then instituted
against respondents, who by that time had a child, who, being born
in the United States, was a United States citizen. Following a
December, 1978, hearing, an Immigration Judge denied respondents'
request for suspension of deportation and ordered their
deportation, and the BIA dismissed an appeal. After the Court of
Appeals in 1982 had reversed the BIA's decision and remanded the
case for further proceedings because respondents had accrued the
requisite seven years' presence in the United States during the
pendency of the appeal, respondents moved the BIA to reopen and
requested suspension of deportation, in the meantime having had a
second child born in the United States. The BIA denied the motion
to reopen on the grounds, inter alia,
that the seven
years' presence and an additional child were available only because
respondents had delayed departure by frivolous appeals, and that
respondents' conduct had shown a blatant disregard for
Page 471 U. S. 445
the immigration laws. The Court of Appeals reversed and directed
the BIA to reopen the proceeding, holding, inter alia,
that respondents had made out a prima facie
hardship, and that the factors relied on by the BIA did not justify
its refusal to reopen.
The refusal to reopen the suspension proceeding
was within the Attorney General's discretion. If, as was required
by the regulations, respondents' motion to reopen was based on
intervening circumstances demonstrating 7-year residence and
extreme hardship, the Attorney General, acting through the BIA,
nevertheless had the authority to deny the motion. Although, by the
time the BIA denied the motion, respondents had been in the United
States for seven years, that was not the case when suspension of
deportation was first denied; the seven years accrued during the
pendency of respondents' baseless appeals. And the Attorney General
did not abuse his discretion in denying reopening based on
respondents' flagrant violation of the immigration laws in entering
the United States, as well as respondent husband's willful failure
to depart voluntarily after his request to do so was honored by the
INS. Pp. 471 U. S.
720 F.2d 529, reversed.
WHITE, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
consideration or decision of the case.
JUSTICE WHITE delivered the opinion of the Court.
Section 244(a)(1) of the Immigration and Nationality Act (Act),
66 Stat. 214, as amended, 8 U.S.C. § 1254(a)(1), allows the
Attorney General to suspend the deportation of an alien. To warrant
such action, the alien must have been physically present in the
United States for a continuous period of at least seven years, be
of good moral character, and demonstrate that deportation would
result in extreme hardship to the alien, or the alien's "spouse,
parent, or child,
Page 471 U. S. 446
who is a citizen of the United States or an alien lawfully
admitted for permanent residence." Ibid.
Even if these
prerequisites are satisfied, it remains in the discretion of the
Attorney General to suspend, or refuse to suspend, deportation.
INS v. Jong Ha Wang, 450 U. S. 139
450 U. S. 144
n. 5 (1981); Jay v. Boyd, 351 U.
, 351 U. S. 353
(1956). Although Congress did not provide a statutory mechanism for
reopening suspension proceedings once suspension has been denied,
the Attorney General has promulgated regulations under the Act
allowing for such a procedure. 8 CFR § 3.2 (1985). Under the
regulations, a motion to reopen will be denied unless reopening is
sought on the basis of circumstances which have arisen subsequent
to the original hearing. Ibid.
The Attorney General,
authorized by Congress to do so, 8 U.S.C. § 1103, has delegated his
authority and discretion to suspend deportation to special inquiry
officers of the Immigration and Naturalization Service (INS), whose
decisions are subject to review by the Board of Immigration Appeals
(BIA). 8 CFR §§ 242.8, 242.21 (1985).
Respondents, a married couple, are natives and citizens of
Mexico. Respondent husband illegally entered the United States in
1972. Apprehended, he returned to Mexico in early 1974 under threat
of deportation. Two months later, he and respondent wife paid a
professional smuggler $450 to transport them into this country,
entering the United States without inspection through the
smuggler's efforts. Respondent husband was again apprehended by INS
agents in 1978. At his request, he was granted permission to return
voluntarily to Mexico in lieu of deportation. He was also granted
two subsequent extensions of time to depart, but he ultimately
declined to leave as promised. INS then instituted deportation
proceedings against both respondents. By that time, respondent wife
had given birth to a child, who, born in the United States, was a
citizen of this country. A deportation hearing was held in
December, 1978. Respondents conceded illegal entry, conceded
deportability, but requested
Page 471 U. S. 447
suspension of deportation. The Immigration Judge, ruling that
respondents were ineligible for suspension because they had not
satisfied the requirement of seven years' continuous physical
presence, ordered their deportation. Respondents appealed the order
to the BIA, asserting a variety of arguments to establish that the
deportation violated their rights or the rights of their child. The
BIA rejected these arguments and dismissed the appeal.
In July, 1980, respondents filed a petition for review in the
Court of Appeals, which automatically stayed their deportation
pursuant to 8 U.S.C. § 1105a(a)(3). Asking that the court order
their deportation suspended, respondents asserted substantially the
same claims rejected by the BIA: that the Immigration Judge should
have given them Miranda
warnings, that their deportation
was an unlawful de facto
deportation of their citizen
child, and that respondent husband should have been considered
present in the United States for seven years. In March, 1982, 15
months after the briefs were filed, the Court of Appeals reversed
the decision of the BIA and remanded the case for further
proceedings. Rios-Pineda v. United States Department of
673 F.2d 225 (CA8). The Court of Appeals was of the
view that, during the pendency of the appeals, respondents had
accrued the requisite seven years' continuous physical presence in
the United States. Id.
at 227. Because of this
development, the court directed the BIA to allow respondents 60
days to file a motion to reopen their deportation proceeding, and
cautioned the BIA "to give careful and thorough consideration to
the . . . motion to reopen if, indeed, one is filed." Id.
at 228, n. 5. During the pendency of the appeals, respondent wife
gave birth to a second citizen child.
Respondents then moved the BIA to reopen, and requested
suspension of deportation. They alleged that deportation would
result in extreme hardship in that their two citizen children would
be deprived of their right to an education in United States schools
and to social assistance. Respondents
Page 471 U. S. 448
also alleged general harm to themselves from their "low skills
and educations" and the lower standard of living in Mexico.
The BIA denied the motion to reopen. First, the motion was not
timely filed, as respondents had not served it on the proper
official within the specified 60 days. Second, discretionary relief
was unwarranted, since the additional facts -- seven years'
continuous physical presence and an additional child -- were
available only because respondents had delayed departure by
frivolous appeals. Third, respondent husband's conduct in returning
to the country only two months after his 1974 departure,
respondents' payment to a professional smuggler to enter this
country illegally, and respondent husband's refusal to depart
voluntarily after promising to do so, all evinced a blatant
disregard for the immigration laws, disentitling respondents to the
favorable exercise of discretion.
The Court of Appeals reversed and directed the BIA to reopen the
proceeding. Rios-Pineda v. United States Department of
720 F.2d 529 (CA8 1983). The motion to reopen, the
panel concluded, was timely filed, [Footnote 1
] respondents had made out a prima
case of hardship, and the factors relied on by the BIA
did not justify its refusal to reopen. Although the court did not
find merit in any of the legal arguments respondents had pressed
during their prior appeals, their appeals were not frivolous.
Neither could the BIA deny a motion to reopen because of
respondents' disregard of the immigration laws, since such
disregard is present in some measure in all deportation cases.
We granted certiorari, 469 U.S. 1071 (1984), because this case
involves important issues bearing on the scope of the Attorney
General's discretion in acting on motions to reopen civil requests
for suspension of deportation.
Page 471 U. S. 449
We have recently indicated that granting a motion to reopen is a
discretionary matter with BIA. INS v. Phinpathya,
464 U. S. 183
464 U. S. 188
n. 6 (1984). Thus, even assuming that respondents' motion to reopen
made out a prima facie
case of eligibility for suspension
of deportation, the Attorney General had discretion to deny the
motion to reopen. INS v. Jong Ha Wan, 450 U.
, 450 U. S. 144
n. 5 (1981). We have also held that, if the Attorney General
decides that relief should be denied as a matter of discretion, he
need not consider whether the threshold statutory eligibility
requirements are met. INS v. Bagamasbad, 429 U. S.
(1976); see also Jong Ha Wan,
450 U.S. at
450 U. S.
-144, n. 5.
Given the Attorney General's broad discretion in this context,
we cannot agree with the Court of Appeals' holding that denial of
the motion to reopen was an impermissible exercise of that
discretion. If, as was required by the regulations, respondents'
motion to reopen was based on intervening circumstances
demonstrating 7-year residence and extreme hardship, the Attorney
General, acting through the BIA, nevertheless had the authority to
deny the motion for two separate and quite adequate reasons.
First, although, by the time the BIA denied the motion,
respondents had been in this country for seven years, that was not
the case when suspension of deportation was first denied; [Footnote 2
] the seven years accrued
during the pendency of
Page 471 U. S. 450
respondents' appeals. The BIA noted that respondents' issues on
appeals were without merit, and held that the 7-year requirement
satisfied in this manner should not be recognized. In our view, it
did not exceed its discretion in doing so.
The Court of Appeals thought the appeal had not been frivolous
because it had resulted in further proceedings. But this was true
only because seven years of residence had accrued during the
pendency of the appeal. No substance was found in any of the points
raised on appeal, in and of themselves, and we agree with the BIA
that they were without merit. The purpose of an appeal is to
correct legal errors which occurred at the initial determination of
deportability; it is not to permit an indefinite stalling of
physical departure in the hope of eventually satisfying legal
prerequisites. One illegally present in the United States who
wishes to remain already has a substantial incentive to prolong
litigation in order to delay physical deportation for as long as
possible. See, e.g., Sung Ja Oum v. INS,
613 F.2d 51,
52-54 (CA4 1980); Hibbert v. INS,
554 F.2d 17, 19-21 (CA2
1977). The Attorney General can, in exercising his discretion,
legitimately avoid creating a further incentive for stalling by
refusing to reopen suspension proceedings for those who became
eligible for such suspension only because of the passage of time
while their meritless appeals dragged on. See Leblanc v.
715 F.2d 685, 693 (CA1 1983); Agustin v. INS,
700 F.2d 564, 566 (CA9 1983); Balani v. INS,
1157, 1160-1162 (CA6 1982); Der-Rong Chour v. INS,
F.2d 464, 467-468 (CA2 1978), cert. denied,
440 U.S. 980
(1979); Schieber v. INS,
171 U.S.App.D.C. 312, 320-321,
520 F.2d 44, 52-53 (1975).
The impact of any other rule is pointed out by this case.
Respondents were apprehended in 1978, and they conceded
deportability. Nonetheless, over six years later, they remain in
the United States by virtue of their baseless appeals. In
administering this country's immigration laws, the Attorney General
and the INS confront an onerous task even without
Page 471 U. S. 451
the addition of judicially augmented incentives to take
meritless appeals, engage in repeated violations, and undertake
other conduct solely to drag out the deportation process.
Administering the 7-year requirement in this manner is within the
authority of the Attorney General. The Act commits the definition
of the standards in the Act to the Attorney General and his
delegate in the first instance,
"and their construction and application of th[ese] standard[s]
should not be overturned by a reviewing court simply because it may
prefer another interpretation of the statute."
INS v. Jong Ha Wang, supra,
at 450 U. S.
Second, we are sure that the Attorney General did not abuse his
discretion in denying reopening based on respondents' flagrant
violation of the federal law in entering the United States, as well
as respondent husband's willful failure to depart voluntarily after
his request to do so was honored by the INS. The Court of Appeals'
rejection of these considerations as "irrelevant" is unpersuasive.
While all aliens illegally present in the United States have, in
some way, violated the immigration laws, it is untenable to suggest
that the Attorney General has no discretion to consider their
individual conduct and distinguish among them on the basis of the
flagrancy and nature of their violations. There is a difference in
degree between one who enters the country legally, staying beyond
the terms of a visa, and one who enters the country without
inspection. Nor does everyone who illegally enters the country do
so repeatedly and with the assistance of a professional smuggler.
Furthermore, the Attorney General can certainly distinguish between
those who, once apprehended, comply with the laws, and those who
refuse to honor previous agreements to report for voluntary
departure. Accordingly, we are convinced that the BIA did not abuse
its discretion in denying reopening because of respondents' prior
This case, therefore, does not involve the unreasoned or
arbitrary exercise of discretion. Here the BIA's explanation of its
decision was grounded in legitimate concerns about the
Page 471 U. S. 452
administration of the immigration laws and was determined on the
basis of the particular conduct of respondents. In this government
of separated powers, it is not for the judiciary to usurp Congress'
grant of authority to the Attorney General by applying what
approximates de novo
appellate review. See Jong Ha
450 U.S. at 450 U. S.
464 U.S. at 464 U. S.
-196. Because we conclude that, here, the refusal to
reopen the suspension proceeding was within the discretion of the
Attorney General, we reverse the decision of the Court of
JUSTICE POWELL took no part in the consideration or decision of
The issue of whether the motion to reopen was timely filed is
not before this Court, and we assume, without deciding, that timely
filing was established by service of the motion on the wrong
official within the period required by the Court of Appeals' first
720 F.2d at 532.
Even prior to our decision in INS v. Phinpathya,
464 U. S. 183
(1984), while the administrative practice treated some minor
absences as not breaking the continuous presence period, neither
the courts nor the Attorney General had ever considered a departure
under threat of deportation, coupled with a subsequent illegal
entry after two months' absence, anything less than a meaningful
interruption of the period. Not only had the Immigration Judge
explained, both at the deportation hearing and in his written
decision, App. to Pet. for Cert. 27a, that such an absence was an
interruption of the period of continuous presence, the law itself
was clear. See Heitland v. INS,
551 F.2d 495, 503-504
(CA2), cert. denied,
434 U.S. 819 (1977);
Segura-Viachi v. INS,
538 F.2d 91, 92 (CA5 1976);
Barragan-Sanchez v. Rosenberg,
471 F.2d 758, 760 (CA9
1972); see generally Phinpathya, supra,
at 464 U. S.