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Wang v. Ashcroft

An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the BIA -- either on direct appeal or in a motion to reopen.

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Petition for Review of an Order of the Board of Immigration Appeals

The petitioner, Kuang-Te Wang, a native of Taiwan, entered the United States on January 18, 1985 as a nonimmigrant visitor authorized to remain for a period not to exceed one year. Petitioner’s wife, Yu-Fen Wang, entered the United States approximately one month later in February 1985. Wang and his wife remained illegally in the United States beyond the expiration of the one year period. In 1989, federal agents, without a warrant, entered Wang’s home and arrested him on suspicion of transporting illegal aliens.*fn1 During the course of the arrest, Wang’s status as an illegal alien was revealed. Consequently, on May 24, 1989, the Immigration and Naturalization Service (INS) issued an Order to Show Cause, charging Wang as being deportable pursuant to � 241(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. � 1251(a)(2), in that he remained in the United States beyond the time authorized.

At Wang’s deportation hearing, his counsel filed a motion to suppress the evidence submitted by the INS to establish the deportability charge. The motion alleged that the evidence was inadmissible as the fruits of an illegal search. The immigration judge denied the motion to suppress and found Wang deportable. Wang appealed and the Board of Immigration Appeals (“BIA” or “the Board”) affirmed. Wang did not petition this Court to review the Board’s decision. Instead, on August 23, 1993, Wang timely filed a motion to reopen his deportation proceedings before the BIA, arguing that he was eligible for suspension of deportation under INA � 244(a), as he had been in continuous physical presence in the United States for seven years. During the pendency of this motion two significant events occurred. First, a new regulation was approved by the Attorney General, effective July 1, 1996, providing that:

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