Speech #1030106961

In my view. the balance of the equities. especially with respect to Mr. Malekis innocent U.S. citizen wife and his two young children. argue for a second look by the INS. It is my hope that delaying his deportation will provide an opportunity for that reassessment. It should provide his counsel time to move to reopen the case and request that the case be remanded for a rehearing when he becomes eligible. My action today does not grant him permanent residency status. It simply provides him an opportunity to make his case for asylum again in light of new evidence. and eventually for suspension of deportation and adjustment of his status to permanent resident. based on section 244(a)(2) of the Immigration and Nationality Act. This provision makes him eligible for reconsideration of his status at the discretion of the attorney general if he: First. has been physically present in the United States for no less than 10 years following a conviction. second. proves that during that period he has been a person of good moral character. and third. proves that his departure would result in exceptional hardship to his family members. I understand that this 10year rule is not a statute of limitations. but simply a threshold test which makes him eligible for reconsideration. I believe that when he is given another chance to make his case. the immigration judge will conclude. as I have. that it has considerable merit. Indeed. the original immigration judge concluded that although he had found insufficient evidence to affirm Mr. Malekis asylum claim. he believe his conviction should not preclude a positive decision either on an application for asylum or for withholding of deportation if he was otherwise eligible for adjustment of status under the law. He observed: Upon review of the facts of the case. I do not find that the respondents conviction in the U.S. constitutes a particularly serious offense which would preclude statutory consideration for withholding of deportation. or preclusion of an asylum application. as a matter of discretion. I believe the respondent has developed other equities in the U.S. which would offset the negative impact of his conviction. which would support a merit (sil decision if otherwise eligible. This case has required me to make a prudential judgment about the merits of Mr.