IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. BERNARDO RIOS-PINEDA AND ESTARNILADA RIOS-PINEDA DE RIOS No. 83-2032 In t e Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute and regulation involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 720 F.2d 529. The initial opinion of the court of appeals (App., infra, 16a-20a) is reported at 673 F.2d 225. The opinions of the Board of Immigration Appeals (App., infra, 11a-15a, 21a-24a) and the decision of the immigration judge (App., infra, 25a-30a), are not reported. JURISDICTION The judgment of the court of appeals (App., infra, 31a) was entered on November 9, 1983. A petition for rehearing was denied on January 13, 1984 (App., infra, 32a). Justice Blackmun extended the time for filing a petition for a writ of certiorari to and including June 11, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATION INVOLVED 8 U.S.C. 1254(a)(1) provides in pertinent part: As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and -- (1) is deportable under any law of the United States * * * ; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence * * * . 8 C.F.R. 3.2 provides in pertinent part: Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted * * * unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. QUESTION PRESENTED Whether the Attorney General and his delegates have discretion to deny an alien's motion to reopen deportation proceedings for the purpose of seeking suspension of deportation under 8 U.S.C. 1254(a)(1) because the alien has acquired the necessary seven years' "continuous physical presence" only by filing frivolous appeals and has in other ways exhibited disregard for the immigration laws. STATEMENT 1. Respondents, who are husband and wife, are natives and citizens of Mexico. Bernardo Rios-Pineda unlawfully entered the United States in the summer of 1972 (App., infra, 17a). In early 1974, he returned to Mexico under threat of deportation (id. at 12a, 17a, 27a). Two months later, on May 1, 1974, respondents entered the United States without inspection, contrary to 8 U.S.C. 1251(a)(2) (App., infra, 2a, 12a, 17a, 25a-26a). Respondents effected this entry with the assistance of an alien smuggler, whom they paid about $450 for his services (id. at 27a-28a). Subsequently, Mr. Rios-Pineda was apprehended by officers of the Immigration and Naturalization Service (INS) and was granted permission to return voluntarily to Mexico in lieu of deportation (App., infra, 28a). Although given at least two extensions of time to depart, Mr. Rios-Pineda did not do so (ibid.). The INS thereupon instituted deportation proceedings against both respondents in October 1978 (id. at 25a-26a; R. 112-113). /1/ At a deportation hearing in December 1978, respondents, through counsel, conceded deportability and orally requested relief from deportation, alleging that they had one citizen child and were expecting a second child, that Mr. Rios-Pineda was presently employed and that an application for labor certification had been filed on his behalf (App., infra, 26a-27a; R. 85-86, 87). The immigration judge treated this request as an application for suspension of deportation pursuant to 8 U.S.C. 1254(a)(1) and denied the application. The judge ruled that Mr. Rios-Pineda was ineligible for suspension of deportation because he had not attained the required seven years' "continuous physical presence" (App., infra, 27a, 29a). The judge noted that Mr. Rios-Pineda had initially entered the United States in the summer of 1972 and thus had not been in the United States for seven years at the time of the December 1978 deportation hearing. In any event, the judge ruled that Mr. Rios-Pineda's 1974 departure under threat of deportation constituted a break in the period of continuous physical presence. /2/ Respondents took an administrative appeal to the Board of Immigration Appeals, but did not seek review of the denial of their application for suspension of deportation (R. 69-70). The Board of Immigration Appeals dismissed the appeal (App., infra, 21a-24a). /3/ 2. In July 1980, respondents filed a petition for review in the court of appeals, thus automatically staying their deportation pursuant to 8 U.S.C. 1105a(a)(3). Respondents claimed that their constitutional rights had been violated because the immigration judge did not give them Miranda warnings before questioning them at the deportation hearing, that their deportation would constitute an unlawful de facto deportation of their two citizen children, and that the immigration judge erred in concluding that Mr. Rios-Pineda had not been physically present in the United States for a continuous period of seven years. /4/ Respondents urged the court to "order that (their) deportation * * * be suspended." /5/ In March 1982, the court of appeals reversed the decision of the Board and remanded the case for further proceedings (App., infra, 16a-20a). In so doing, the court did not address the merits of any of respondents' claims of error. Instead, it found that respondents had accrued the requisite seven years' "continuous physical presence" while their petition for review was pending, and it concluded that respondents had "'made a substantial showing that the Board should properly afford (them) relief on the basis of the additional evidence available subsequent to the initial hearing'" (id. at 19a, quoting Vargas-Gonzalez v. INS, 647 F.2d 457, 459 (5th Cir. 1981)). The court directed the Board to hold the proceedings in abeyance for 60 days to give respondents an opportunity to file a motion to reopen their deportation proceedings (App., infra, 20a). In addition, the court cautioned the Board "to give careful and thorough consideration to the * * * motion to reopen if, indeed, one is filed" (id. at 20a n.5). The court stated that if no motion to reopen were filed within 60 days, the Board could dismiss the proceedings (id. at 20a). 3. Respondents filed a motion to reopen, accompanied by applications for suspension of deportation. In their motion to reopen, respondents alleged that they had been in the United States for a continuous period of seven years from the time of their entry on May 1, 1974, that they are persons of good moral character, and that deportation would result in extreme hardship to them and their citizen children (R. 17-18). With respect to the latter claim, respondents alleged that their two citizen daughters, then seven and three years of age, would be deprived of their rights to an education in United States schools and to social assistance if respondents were deported. Specifically, respondents claimed that deportation would interrupt the education of their older daughter in United States schools and would require her to attend Mexican schools where classes are conducted in Spanish. Respondents also raised general claims of psychological and economic hardship to themselves arising from "their low skills and educations" and the lower standard of living in Mexico. R. 18. Contrary to 8 C.F.R. 3.8(a), respondents submitted no affidavits or other evidentiary materials that specifically addressed these allegations of hardship. The only materials attached to the motion to reopen were respondents' applications for suspension of deportation, copies of respondents' income tax returns, a purchase agreement for a house, a letter showing that Mr. Rios-Pineda was employed, a school record relating to respondents' older child, and birth and marriage records (R. 20-41). Apart from their allegations of hardship, respondents pointed to certain language in the court of appeals' decision which, they asserted, showed that the court had already accepted their extreme hardship claim (R. 19). /6/ The BIA denied respondents' motion to reopen (App., infra, 11a-15a). It held that respondents failed to make a prima facie showing of extreme hardship necessary to establish eligibility for suspension of deportation (id. at 13a-14a). The Board noted that respondents had submitted no affidavits in support of their extreme hardship claim (id. at 13a). It examined "the documents and the vague allegations forwarded by counsel" and concluded that they were not sufficient to establish a prima facie showing of extreme hardship (id. at 13a-14a). In addition, the Board concluded that the motion to reopen should in any event be denied in the exercise of its discretion (App., infra, 14a-15a). The BIA observed, in this regard, that respondents were able to acquire seven years' presence and the equity of a second child only by pursuing what it considered to be frivolous appeals, and it concluded that denial of a motion to reopen is appropriate where statutory eligibility for relief is acquired only by means of such dilatory tactics (id. at 14a). The BIA also noted that respondents entered the United States in May 1974 with the assistance of a paid smuggler and that on that occasion Mr. Rios-Pineda was returning within only two months of a forced departure after he had failed to depart voluntarily (id. at 14a-15a). Concluding that these adverse factors outweighed the equities in respondents' favor, the BIA denied the motion to reopen as a matter of discretion (id. at 15a). 4. The court of appeals again reversed and remanded (App., infra, 1a-10a). The court concluded that it had implicitly decided respondents' extreme hardship claim in their favor in its earlier decision and that this determination was binding on the Board as the "law of the case" (App. infra, 5a-7a). The court reviewed the factors supporting its earlier "holding" that respondents had established a prima facie case of extreme hardship and concluded that that holding was not clearly erroneous (id. at 7a). /7/ In the alternative, the court of appeals ruled that even if respondents' prima facie eligibility for suspension of deportation had not been decided by the court in its prior opinion, the Board abused its discretion in declining to find that respondents had made a sufficient showing of extreme hardship to warrant reopening of their deportation proceedings (App., infra, 7a-8a n.3). The court pointed out that Mr. Rios-Pineda had claimed his mother, a resident of Mexico, as a dependent on his federal income tax returns and that the Board had never considered the hardship to respondents that deportation might entail with respect to respondents' ability to continue supporting Mr. Rios-Pineda's mother (id. at 7a n.3). Furthermore, the court stated that the Board failed to consider the possibility that respondents' citizen children only speak English, thus increasing the educational and social hardship if they are forced to go to Mexico with their parents (id. at 8a n.3). /8/ The court of appeals also held that the BIA's discretionary denial of respondents' motion to reopen was based on improper factors (App., infra, 8a-9a). The court disagreed with the BIA's characterization of respondents' appeals as "frivolous," noting that the court had "twice considered petitions which, regardless of their ultimate success, have required further proceedings to fully and fairly decide the (respondents') claim of their right to stay in this country" (id. at 9a). In addition, the court concluded that the Board erred in relying on respondents' "disregard" of the immigration laws, as manifested by their use of a paid smuggler and by Mr. Rios-Pineda's repeated refusal to depart voluntarily, because "(s)uch 'disregard' is necessarily present in some form in most deportation proceedings" (ibid). REASONS FOR GRANTING THE PETITION Since respondents' entry with the assistance of a professional smuggler in 1974, they have never lawfully been in the United States. After Mr. Rios-Pineda's apprehension, the INS granted him ample opportunity to return voluntarily to Mexico in lieu of deportation, but he failed to depart. At their deportation hearing in December 1978, both respondents conceded deportability and were ordered deported. Respondents succeeded in avoiding deportation, however, by seeking discretionary relief from deportation despite their ineligibility for such relief and by filing frivolous appeals. By these dilatory tactics, respondents managed to satisfy the seven-year eligibility requirement for suspension of deportation. The court of appeals has concluded that the Attorney General may not exercise his discretion to deny respondents' motion to reopen based on their resort to dilatory tactics and their blatant disregard of the immigration laws. The decision below means that for respondents and other deportable aliens, the use of administrative and judicial review procedures for purposes of delay not only will be condoned, but will in fact be rewarded. This case thus presents an important question concerning the nature and scope of the Attorney General's authority to deny a deportable alien's motion to reopen deportation proceedings as a matter of administrative discretion, without regard to whether the alien has established a prima facie case of eligibility for the ultimate relief sought. This Court has held that the Attorney General and his delegates may exercise their discretion to deny an alien's request for extraordinary relief regardless of eligibility. INS v. Bagamasbad, 429 U.S. 24 (1976). In addition, the Court has adverted, in recent cases, to the broad discretion enjoyed by the Attorney General and his delegates in deciding whether to grant or deny a motion to reopen. INS v. Phinpathya, No. 82-91 (Jan. 10, 1984), slip op. 5 n.6; INS v. Wang, 450 U.S. 139, 143-144 n.5 (1981). The decision of the court of appeals, unless overturned, would severely restrict that broad discretion with respect to the thousands of motions to reopen filed each year by deportable aliens. 1. Both the ultimate relief requested by respondents (suspension of deportation) and the procedure by which they are attempting to obtain that relief (a motion to reopen deportation proceedings) are designed to deal with the extraordinary situation. In order to be eligible for suspension of deportation, an alien must have been physically present in the United States for a continuous period of seven years, must have been a person of good moral character during that time, and must be able to show that his deportation would cause "extreme hardship" to himself or to his spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence. 8 U.S.C. 1254(a)(1). The "extreme hardship" and "continuous physical presence" requirements both reflect the exceptional nature of the suspension remedy. See INS v. Wang, 450 U.S. at 145; INS v. Phinpathya, slip op. 7. If an alien meets all three eligibility requirements, the Attorney General must then decide whether suspension relief is warranted in the exercise of his "unfettered discretion." Jay v. Boyd, 351 U.S. 345, 354 (1956). See Kimm v. Rosenberg, 363 U.S. 405, 408 (1960). The Attorney General need not even decide whether an alien has satisfied the statutory eligibility requirements, however, where he determines that the alien's application would be denied as a matter of discretion. See INS v. Bagamasbad, supra; LeBlanc v. INS, 715 F.2d 685, 688-692 (1st Cir. 1983); Moore v. INS, 715 F.2d 13, 16 n.2 (1st Cir. 1983). As this Court observed in INS v. Wang, 450 U.S. at 140-141, the Immigration and Nationality Act does not expressly provide a vehicle for reopening deportation proceedings after a final order of deportation has been issued. The INS, however, has provided by regulation for such a procedure. 8 C.F.R. 3.2, 3.8. /9/ The regulations permit the BIA to reevaluate its prior disposition of cases in which significant developments have occurred subsequent to the hearings and decisions therein. This Court in Wang addressed the nature of the BIA's discretionary authority over motions to reopen. The Court stated (450 U.S. at 143-144 n.5): The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened. See Villena v. INS, 622 F.2d 1352 (CA9 1980) (en banc) (Wallace, J., dissenting). In his dissent, Judge Wallace stated that INS had discretion beyond requiring proof of a prima facie case: "If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations." Id., at 1362. More recently, in INS v. Phinpathya, supra, the Court had occasion to discuss the broad discretion of the BIA with respect to motions to reopen. The issue before the Court in Phinpathya was whether the alien's three-month trip abroad in 1974 had broken the continuity of her physical presence in this country, thus rendering her ineligible for suspension of deportation under 8 U.S.C. 1254(a)(1). The alien argued that the case was moot because, since her return to this country in 1974, she had been physically present in the United States for a continuous period of seven years. This Court rejected the mootness argument, noting that although the alien had filed a motion with the BIA to reopen her deportation proceeding, "granting of the motion is entirely within BIA's discretion." INS v. Phinpathya, slip op. 5 n.6. Both Wang and Phinpathya make clear that the Attorney General and his delegates may exercise discretion to deny a motion to reopen "beyond requiring proof of a prima facie case" (Wang, 450 U.S. at 144 n.5). The decision below greatly restricts that discretionary authority. 2. The court of appeals assumed that the BIA retains discretion to deny motions to reopen regardless of whether the alien has established a prima facie case of eligibility for suspension of deportation (App., infra, 8a). The court concluded, however, that the factors considered by the BIA in exercising its discretion in this case were "improper and irrelevant" (id. at 9a). a. The court of appeals rejected the BIA's conclusion that respondents had satisfied the seven year "continuous physical presence" requirement of 8 U.S.C. 1254(a)(1) only by filing "frivolous appeals" (App., infra, 9a). But the lack of substantive merit in respondents' ongoing litigation is readily apparent. Respondents did not raise the suspension of deportation issue in their administrative appeal to the BIA (no doubt because they had not yet satisfied the continuous physical presence requirement), and the claims they did raise, which were patently insubstantial, were rejected out of hand by the BIA (App., infra, 21a-24a). See note 3, supra. In their initial petition for review in the court of appeals, respondents raised some of the same arguments that had been rejected by the BIA. /10/ In addition, respondents claimed eligibility for suspension of deportation, even though at the time they still had not accrued the requisite seven years' physical presence necessary for that relief. /11/ The court of appeals addressed none of the issues raised by respondents. Instead, the court found that respondents had acquired seven years' presence while their appeal was pending, and it accordingly remanded the case to the Board to permit respondents to seek reopening of their deportation proceedings in order to apply for suspension of deportation (App., infra, 20a & n.5). In rejecting the notion that respondents had pursued frivolous appeals, the court of appeals reasoned that the appeals could not have been frivolous because the court itself had granted relief (App., infra, 9a). But the relief that the court granted to respondents resulted solely from respondents' ability to delay their deportation by filing appeals lacking substantive merit. /12/ The net effect of the court's ruling is that any litigation that buys sufficient time to accrue seven years' physical presence cannot be considered frivolous. In substance, then, the court has held that delay is a valid purpose for pursuing administrative and judicial review. This decision conflicts with the decisions of numerous courts of appeals holding that the Attorney General may properly consider an alien's resort to dilatory tactics in denying a motion to reopen deportation proceedings as a matter of administrative discretion. See, e.g., LeBlanc v. INS, 715 F.2d at 693; Agustin v. INS, 700 F.2d 564, 566 (9th Cir. 1983); Muigai v. INS, 682 F.2d 334, 337 (2d Cir. 1982); Men Keng Chang v. Jiugni, 669 F.2d 275, 278 (5th Cir. 1982); Pang Kiu Fung v. INS, 663 F.2d 417, 419 (2d Cir. 1981); Hibbert v. INS, 554 F.2d 17, 21 (2d Cir. 1977); Lam Chuen Ching v. INS, 467 F.2d 644, 645 (3d Cir. 1972). b. In denying respondents' motion to reopen as a matter of discretion, the BIA also took into account respondents' repeated disregard for this Nation's immigration laws, as reflected by their use of a paid smuggler when entering this country illegally and their abuse of the privilege of voluntary departure. The court of appeals cavalierly concluded that the Board's consideration of this factor was arbitrary and irrational because disregard of the immigration laws is present in most deportation proceedings (App., infra, 9a). But the fact that all deportable aliens have violated the immigration laws to some extent does not mean that the BIA in exercising discretion may not differentiate among such aliens on the basis of the degree to which they have flouted the immigration process. Indeed, other courts have expressly recognized the BIA's authority to consider an alien's adverse immigration history in ruling on a motion to reopen. See, e.g., LeBlanc v. INS, 715 F.2d at 693; Agustin v. INS, 700 F.2d at 566; Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1212 (9th Cir. 1983). This Court concluded in Wang (450 U.S. at 143-144 n.5) that the Attorney General has broad discretion to deny a motion to reopen. If this discretion means anything, it must mean that the Attorney General may deny reopening where it is undisputed that the alien movant has engaged in actions that repeatedly manifest contempt for the immigration laws. This is particularly true where the motion to reopen is for the purpose of seeking the ultimate relief of suspension of deportation, which is itself discretionary and which Congress designed as an exceptional remedy to be granted to only a limited number of aliens. See INS v. Wang, 450 U.S. at 145; INS v. Phinpathya, slip op. 7. 3. The court of appeals' decision restricting the Attorney General's discretionary authority to deny motions to reopen deportation proceedings will have severe adverse effects on the administration of the immigration laws. Motions to reopen are not limited to cases involving applications for suspension of deportation; rather, a motion to reopen may be filed in virtually every deportation case. /13/ Such procedural devices are often used to frustrate deportation and prolong an alien's illegal stay in this country. See, e.g., Oum v. INS, 613 F.2d 51, 52-54 (4th Cir. 1980); Hibbert v. INS, 544 F.2d at 21; Schieber v. INS, 520 F.2d 44 (D.C. Cir. 1975). By disabling the Attorney General from denying relief as a matter of discretion to aliens who have used dilatory tactics in an effort to satisfy the eligibility criteria for suspension of deportation, the decision below will inevitably encourage aliens to file frivolous motions and appeals. Moreover, by restricting the Attorney General's discretion to sift out from the many motions to reopen only those that appear to have a reasonable likelihood of success, the decision below will impose a substantial burden on the administrative agency to reopen deportation proceedings in order to hold hearings on, and review the merits of, numerous requests for discretionary relief. In short, this case reveals the need to reaffirm the BIA's "'right to be restrictive'" (INS v. Wang, 450 U.S. at 144 n.5, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting)) in exercising its discretionary authority over immigration matters. It is inconceivable to us that Congress, in enacting the suspension of deportation statute, and the Attorney General, in promulgating the regulations concerning motions to reopen, meant to preclude the immigration authorities from considering an alien's prolonged and willful abuse of the immigration process itself as a basis for denying the alien's request for discretionary relief. /14/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General ELLIOTT SCHULDER Assistant to the Solicitor General JAMES A. HUNOLT Attorney June 1984 /1/ "R." refers to the certified administrative record. /2/ Although the immigration judge expressly addressed only Mr. Rios-Pineda's lack of eligibility for suspension of deportation, the necessary implication of his decision was that Mrs. Rios-Pineda was also ineligible for suspension because she too lacked the requisite seven years' "continuous physical presence." In addition, the immigration judge denied respondents' application for voluntary departure, pursuant to 8 U.S.C. 1254(e), noting, inter alia, that respondents had used a professional smuggler to enter this country, and that Mr. Rios-Pineda failed to depart voluntarily prior to institution of deportation proceedings and had reentered this country in 1974 only two months after his departure under the threat of deportation (App., infra, 29a-30a). /3/ In their appeal to the BIA, respondents claimed that their deportation would result in the unconstitutional de facto deportation of their citizen child. The BIA rejected this claim as without merit (App., infra, 22a-23a, citing, e.g., Rubio de Cachu v. INS, 568 F.2d 625 (9th Cir. 1977); Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977); Gonzalez-Cuevas v. INS, 515 F.2d 1222 (5th Cir. 1975); Faustino v. INS, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921 (1971)). Respondents also claimed that they were entitled to relief under 8 U.S.C. 1182(c), which permits relief from exclusion or deportation for "aliens lawfully admitted for permanent residence." The BIA found respondents ineligible for such relief because they had never been admitted as lawful permanent residents (App., infra, 23a). Respondents further contended that their privilege against self-incrimination was violated when they responded to the immigration judge's questions at their deportation hearing. The BIA concluded that this contention was insubstantial, noting that respondents, who were represented by counsel at the hearing, did not assert that their responses to the questions would violate their privilege and that respondents submitted no evidence that their testimony had been compelled (App., infra, 24a). Indeed, the BIA observed (ibid.) that counsel had freely conceded respondents' deportability and had waived the reading of their rights pursuant to 8 C.F.R. 242.16. Respondents' final argument was that the order to show cause was invalid as to Mr. Rios-Pineda because at the time it was issued an application for labor certification was pending before a state agency. The BIA held that the commencement of deportation proceedings against a deportable alien is a matter within the discretion of the District Director (App., infra, 23a). /4/ Brief for Petitioners at 2-3, Rios-Pineda v. U.S. Department of Justice, No. 80-1619 (8th Cir.). /5/ Id. at 4. /6/ The portion of the court of appeals' opinion relied on by respondents stated (App., infra, 19a): Here, Bernardo and Estarnilada have been physically present in the United States continuously since May 1, 1974. Our review of the record indicates that Bernardo, in addition to being a homeowner in Omaha, has been gainfully employed at Union Packing since May of 1974. Both of Bernardo and Estarnilada's children, Ana Belia and Brenda Lee, were born in Omaha and have resided there since birth. /7/ These factors were that Mr. Rios-Pineda had been regularly employed since 1974, that respondents had made a substantial down payment on a home, and that their citizen children had lived in the United States since birth (App., infra, 7a). /8/ The court of appeals failed to mention that respondents' motion to reopen did not refer to respondents' obligation to support Mr. Rios-Pineda's mother and did not allege that respondents' daughters only speak English. /9/ 8 C.F.R. 3.2 provides in pertinent part: Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted * * * unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. In addition, 8 C.F.R. 3.8(a) provides that the motion to reopen shall "state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." /10/ Respondents contended that their privilege against self-incrimination had been violated because the immigration judge did not give them Miranda warnings before questioning them at the deportation hearing. Respondents made no claim that they were in custody, and they presented no evidence that their responses to the judge's questions were compelled. Moreover, as the BIA observed in rejecting this claim (App., infra, 24a), respondents were represented at the hearing by counsel who conceded their deportability and waived the reading of their rights. Respondents' claim that their deportation would result in the unconstitutional deportation of their citizen children was correctly dismissed by the BIA as patently without merit (id. at 22a-23a). Finally, respondents' argument that the immigration judge erred in concluding that Mr. Rios-Pineda had failed to show seven years' "continuous physical presence" was frivolous on its face. /11/ Respondents' brief in the court of appeals was filed on November 29, 1980, less than seven years after their May 1974 entry. /12/ In concluding that respondents' initial petition for review was not frivolous, the court of appeals may have been adverting to its ruling, in another portion of the decision below (App., infra, 5a-7a), that in its first decision remanding the case to the BIA to consider respondents' motion to reopen, the court in fact held that respondents had made a prima facie showing of eligibility for suspension of deportation. We seriously doubt whether the court's initial decision may be so construed, since the court merely directed the Board to consider respondents' motion to reopen if one was filed (id. at 20a & n.5). Indeed, the court itself noted the "ambiguity" of its earlier decision (id. at 6a n.2). (Because of that "ambiguity," the INS cannot be faulted (as the court below sought to do) for not challenging the court's intial decision. See FTC v. Minneapolis-Honeywell Co., 344 U.S. 206, 211-212 (1952)). In any event, it was only due to the passage of time resulting from respondents' frivolous appeals that the court could possibly have concluded that respondents met the seven years' presence requirement. Beyond this, it is clear that the court of appeals had no authority to find, in the first instance, that respondents had established prima facie eligibility for suspension of deportation relief. Prior to the court of appeals' initial decision, neither the BIA nor the immigration judge considered whether respondents had made a prima facie showing of extreme hardship. The immigration judge denied suspension of deportation solely because Mr. Rios-Pineda had not met the threshold requirement of seven years' "continuous physical presence;" accordingly, there was no reason for the judge to address whether Mr. Rios-Pineda had satisfied either the "good moral character" or the "extreme hardship" requirements of the statute. Respondents did not pursue their application for suspension of deportation before the BIA; as a result, the BIA had no occasion even to consider respondents' eligibility for suspension of deportation. Thus, to the extent that the court of appeals' initial decision may be construed as embodying a "holding" for respondents on the "extreme hardship" question, the court was entirely without authority to issue such a "holding." If the court in fact intended to determine respondents' prima facie eligibility for suspension of deportation, "it usurped an administrative function." FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952). See South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 805-806 (1976); NLRB v. Food Store Employees Union, Local 347, 417 U.S. 1, 9-10 (1974). It therefore follows that the court below could not properly rely on its earlier "holding" as support for the proposition that respondents' prior appeals were not frivolous. /13/ The Executive Office of Immigration Review in the Department of Justice advises us that approximately 3,000 motions to reopen were considered by immigration judges during the year ending in April 1984. During 1983, the Board of Immigration Appeals adjudicated approximately 450 motions to reopen deportation proceedings. (A motion to reopen is addressed to the immigration judge if the outstanding order of deportation has not been appealed. 8 C.F.R. 103.5 and 242.22. However, where, as here, the order of deportation has been upheld by the Board, the Board retains jurisdiction to rule on the motion. 8 C.F.R. 3.2 and 3.8.) /14/ We note that if the court of appeals had upheld the BIA's reasonable exercise of discretion in denying the motion to reopen, the court would have had no occasion to reach the erroneous conclusion that respondents had made a prima facie showing of eligibility for suspension of deportation. The latter ruling is manifestly incorrect. First, the court's reliance on the "law of the case" doctrine is misplaced because, as we have already pointed out (see note 12, supra), if the court in its initial decision in fact held that respondents made out a prima facie case, it acted outside the scope of its authority by usurping the administrative function of the immigration authorities in passing on applications for suspension of deportation. Second, the court's alternative holding, that respondents established prima facie eligibility in their motion to reopen, is directly contrary to this Court's holding in INS v. Wang, supra. Here, as in Wang, the motion to reopen was not accompanied by affidavits or evidentiary materials specifically addressed to the "extreme hardship" claims as required by the applicable regulations (8 C.F.R. 3.2 and 3.8(a)). Compare App., infra, 13a, with 450 U.S. at 143. Moreover, in both this case and Wang, the court "improvidently encroached" on the authority of the Attorney General and his delegates "to construe 'extreme hardship' narrowly." Id. at 144, 145. The vague and conclusory allegations of hardship in this case are virtually identical to those in Wang. Compare App., infra, 13a-14a, with 450 U.S. at 144-145. Indeed, the decision below is even more egregious than the lower court decision that the Court reversed in Wang. Here, the court found that the BIA erred in failing to consider certain hardship factors that the court itself gleaned from the various documents submitted by respondents (App., infra, 7a-8a n.3). The court faulted the Board in this regard even though respondents themselves did not even cite these factors in their motion to reopen. See page 8 and note 8, supra. Although we believe that the decision below is clearly contrary to Wang on the prima facie eligibility issue, we have not presented this point as a separate question in this petition because reversal of the decision of the discretion issue would render the prima facie issue essentially moot. APPENDIX