50 F. 3d 14 - Flores-Martinez v. Immigration and Naturalization Service

Before: SCHROEDER and KLEINFELD, Circuit Judges, and KING, District Judge.**

MEMORANDUM***

Flores-Martinez argues that the BIA erred in refusing to reopen his deportation proceedings for a hearing on his eligibility for suspension of deportation under 8 U.S.C. Sec. 1254(a)(1). The BIA decided in the alternative that Flores-Martinez established no prima facie case of extreme hardship, but even if he had, it would deny reopening in the exercise of its discretion. The latter ground requires affirmance, so we do not reach the former.

Even if the petitioner makes out a prima facie case of eligibility, on a motion to reopen "the BIA may leap ahead, as it were, ... and simply determine that ... the movant would not be entitled to the discretionary grant of relief." INS v. Abudu, 485 U.S. 99, 104-05 (1988). The BIA properly denied reopening to a petitioner who, although making out a prima facie case, entered the United States illegally, and had not departed voluntarily despite gaining the right to do so. INS v. Rios-Pineda, 471 U.S. 444, 451 (1985). Flores-Martinez too entered the United States illegally and then failed to depart voluntarily even though he was granted the right to do so.

Under Abudu and Rios-Pineda, it was not an abuse of discretion for the BIA to deny reopening. INS v. Doherty, 112 S.Ct. 719, 725 (1992).

AFFIRMED.