695 F.2d 181

Joaquin Marcelo Veron RAMOS and Maria Milagros Ramos, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 81-4479

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 14, 1983.

*182Eugenio Cazorla, Dallas, Tex., for petitioners.

Stephen M. Weglian, Jr., Lauri Steven Filppu, Crim. Div., U.S. Dept, of Justice, Washington, D.C., for respondent.

Before RUBIN, JOHNSON and GAR-WOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is a petition for review of an order of the Board of Immigration Appeals (“the Board”) denying petitioners’ application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). The primary questions are whether the Board failed to consider the noneconomic hardship that petitioners’ deportation might have on their family, especially on their two United States citizen children, and if so, whether the Board thereby failed to properly exercise its discretion. We hold that the Board’s decision fails to reflect consideration of all the relevant hardship factors asserted by petitioners in reaching its decision regarding the existence of “extreme hardship.” Accordingly, we remand the case to the Board for further proceedings so that the “extreme hardship” determination may be made upon a proper consideration of all the asserted hardship factors.

I.

Petitioners Joaquin and Maria Ramos are natives and citizens of the Philippines. On July 20, 1967, petitioners entered the United States at Savannah, Georgia, as nonimmigrant visitors for pleasure with permission to stay until October 20, 1967. They subsequently obtained permission to stay until April 20, 1968.

In February 1968, Mr. Ramos was hired by his present employer, the 3M National Advertising Company, to work in Chicago, Illinois. Mrs. Ramos obtained employment at a Chicago hospital as a medical technologist. While in Chicago, Mrs. Ramos gave birth to two children, Michael, who was born in May 1968, and Mark, who was born in December 1970. Because they were born in this country, both children are United States Citizens.

Petitioners lived and worked in Chicago with their two children until 1974, when 3M transferred Mr. Ramos to Dallas, Texas. Mrs. Ramos obtained employment in Dallas, again as a medical technologist. Petitioners and their children have lived in Dallas since that time. Mr. Ramos’s parents, who are aliens lawfully admitted for permanent residence and partially dependent on petitioners for support, also lived with them in Dallas for a while.1

Because petitioners failed to leave the' United States within the time authorized for their departure,2 deportation proceed*183ings were instituted against them. Petitioners conceded deportability, and applied for discretionary relief under 8 U.S.C. § 1254(a)(1).3 Petitioners asserted that if they were deported extreme hardship would result to themselves, to their United States citizen children, and to Mr. Ramos’s resident alien parents.

Following several hearings which concluded on January 26,1977, an immigration judge, in a written decision dated November 21, 1977, rejected petitioners’ claims of hardship and denied their application for suspension of deportation. Petitioners appealed to the Board, which, on March 19, 1980, remanded the case to the immigration judge, holding that:

“In view of the amount of time that has passed since the last hearing on [petitioners’] application, and the representations made on appeal concerning extreme hardship to the [petitioners’] two United States citizen children, we have concluded that the record must be remanded so that it may be updated.”

On remand, the immigration judge conducted a hearing on October 21, 1980, during which he received additional evidence. He then issued a written decision, dated April 8, 1981, which tracked almost word for word his initial decision denying suspension of deportation.4 In his decision, the immigration judge recited petitioners’ assertions respecting the acclimation of their children to the “American way of life” and the difficulty they would undergo as a result of a change of schools. And he referred to petitioners’ attempt to obtain a continuance for psychiatric evaluation of the effect a return to the Philippines might have on their children.5 But the judge’s *184only response to or evaluation of these assertions was that “the children could stay with a sister of Mr. Ramos.”6 The immigration judge instead concentrated almost exclusively on the economic hardship that petitioners’ deportation would have on themselves and on their children:

“The mere fact that an alien’s economic opportunity in a foreign country may be somewhat less than they are in the United States, is not, by itself, sufficient to establish the ‘extreme hardship’ required .... ”

Petitioners again appealed to the Board, which, by decision dated November 17, 1981, affirmed the immigration judge’s order. In its discussion respecting the “extreme hardship” issue, the Board, like the immigration judge, concentrated almost entirely on the assertions of economic hardship to petitioners and to their children, though the record plainly shows that petitioners did not rely primarily upon economic factors to establish extreme hardship.7 In addition, neither the immigration judge nor the Board recited or discussed the asserted hardship on Mr. Ramos’s parents.

II.

To be eligible for discretionary suspension of deportation under 8 U.S.C. § 1254(a)(1), an alien must show: (1) that he has been physically present in the United States for a continuous period of time not less than seven years immediately preceding an application for relief; (2) that during this period, he was and is a person of good moral character; and (3) that “in the opinion of the Attorney General,” his deportation would result in “extreme hardship” to himself or to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident. An alien who meets these requirements is merely eligible for suspension of deportation, and is in no way entitled to such relief. Faddah v. INS, 580 F.2d 132, 133 (5th Cir.1978). Thus, even where all the requirements are met, suspension of deportation may be denied in the exercise of discretion. Vaughn v. INS, 643 F.2d 35, 37 (1st Cir.1981). The decision whether to suspend the deportation of an alien who satisfies the three statutory requirements is therefore discretionary, and is *185subject only to a most restricted judicial review. Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281 (1963).

As to an alien’s eligibility for discretionary relief, the determination whether he has satisfied the first and second statutory requirements are “findings of fact,” and must “be supported by reasonable, substantial, and probative evidence on the record as a whole.” 8 U.S.C. § 1105a(a)(4).8 However, unlike the first two requirements, the third statutory requirement, that of extreme hardship, is phrased in terms of “in the opinion of the Attorney General,” rather than simply in terms of the ultimate standard (extreme hardship) itself.

In INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), the Supreme Court observed with respect to the words “extreme hardship” that “the Act commits this definition in the first instance to the Attorney General and his delegates,” id. at 144, 101 S.Ct. at 1031, and they “have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.” Id. at 145, 101 S.Ct. at 1031. We believe that the Supreme Court’s decision in Wang is inconsistent with those earlier Courts of Appeals decisions, such as Bastidas v. INS, 609 F.2d 101, 104 (3d Cir.1979), which held that determinations of no “extreme hardship” were reviewable under the conventional “substantial evidence” test of section 1105a(a)(4) to essentially the same extent as determinations of the seven continuous years of physical presence and good moral character requirements of section 1254(a)(1). Other pre-Wang Courts of Appeals decisions had indicated that review of no “extreme hardship” determinations was under a more limited “abuse of discretion” standard. See Brathwaite v. INS, 633 F.2d 657, 659-60 (2d Cir.1980) (recognizing differing standards, but not choosing between them).

Our own pre- Wang decisions, while not expressly referring to differing standards of review for “extreme hardship” determinations as contrasted to the other two requirements of eligibility for discretionary relief under section 1254(a)(1), appear to have followed an abuse of discretion approach. See Chokloikaew v. INS, 601 F.2d 216, 218 (5th Cir.1979).9 In view of Wang’s language concerning the authority of the Attorney General to define “extreme hardship” and to construe it narrowly, we doubt that there remains much, if any, scope for judicial substantive review, even under an “abuse of discretion” standard, of no “extreme hardship” determinations.

We do not believe, however, that Wang foreclosed all review in this area. Wang does not question Foti, which clearly held that in a deportation proceeding denial of requested suspension of deportation under section 1254(a)(1) was judicially reviewable pursuant to section 1105a(a). At the very least, then, it would appear that judicial review remains available to ensure that an alien, denied relief under section 1254(a)(1) by reason of a no “extreme hardship” determination, has had a fair and full considera*186tion of his claims in this regard.10 This seems to be the trend of the post-Wang decisions of other Courts of Appeals, and we are in general agreement with this view. See, eg., Prapavat v. INS, 638 F.2d 87 (9th Cir.1981), aff’d on rehearing, 662 F.2d 561, 562 (9th Cir.1982) (remanded to Board because it “did not consider all the factors relevant to the ‘extreme hardship’ determination”); Santana-Figueroa v. INS, 644 F.2d 1354, 1356-57 (9th Cir.1981) (same); Ravancho v. INS, 658 F.2d 169, 174-76 (3d Cir.1981) (same); Phinpathya v. INS, 673 F.2d 1013, 1016-17 (9th Cir.) (same; Mr. Phinpathya’s case), cert. granted,-U.S. -, 103 S.Ct. 291, 74 L.Ed.2d 275 (1982) (“question presented” relates to issue of “continuous physical presence” in Mrs. Phinpathya’s case). Cf. Bueno-Carrillo v. Landon, 682 F.2d 143 (7th Cir.1982).11

The factors generally relevant to a determination of extreme hardship are summarized as follows in Bueno-Carrillo:

“We do not believe that Congress intended the immigration courts to suspend the deportation of all those who will be unable to maintain the standard of living at home which they have managed to achieve in this country.... It is only when other factors such as advanced age, illness, family ties, etc. combine with economic detriment that deportation becomes an extreme hardship.” Id. at 146 (emphasis added).

The relevance of close family ties seems implicit in the statutory provision that the “extreme hardship” requirement may be met by showing such hardship to the citizen or legal resident spouse, parent, or child of the alien, even though no such hardship would result directly to the alien himself.12 And there is ample authority in other Circuits for the proposition that imposing on grade school age citizen children, who have lived their entire lives in the United States, the alternatives of either prolonged and geographically extensive separation from both parents or removal to a country of a vastly different culture where they do not speak the language, is a matter which normally must be considered by the INS in its determination of whether “extreme hardship” has been shown. Ravancho13; Prapavat 14; Phinpathya.15 This Circuit has not expressly so held, but we believe our prior decisions are not inconsistent with this ap*187proach. In Chokloikaew, we held that a determination of no “extreme hardship” was not an abuse of discretion, noting with respect to the alien’s various assertions of hardship, that the immigration judge “considered each of those factors.” Id. at 218. We went on to point out that “[e]conomie detriment ... does not compel a finding of ‘extreme hardship’,” id. at 218, and that:

“He [the alien] lived in Thailand, where his family lives now, until he was twenty-one years old and should not suffer ‘extreme hardship’ in readjusting to social and economic conditions there. Compare Acosta v. Landon, S.D.Cal., 1954, 125 F.Supp. 434 (suspension of deportation granted to alien who had been in this country legally for almost forty years, had married a native-born United States citizen, and had four American-born children).” Id. at 218.16

*188The discretionary determination respecting extreme hardship is not bound by any fixed rules; rather it depends upon the facts and circumstances of the particular case. Because this is so, the Attorney General can properly fulfill his duty to exercise his discretion only if he or his delegates actually consider those facts and circumstances. Santana-Figueroa at 135617; Phinpathya at 1016. The Board’s decision must reflect that it has meaningfully addressed and reached a reasoned conclusion on the alien’s specific assertions of hardship that are based on evidence. The Board has a duty “to ‘give reasons which show that it has properly considered the facts which bear on its decision.’ Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981).” Prapavat, 662 F.2d at 562. The reasons given by the Board for denial of relief must “reflect[] consideration of” the relevant evidence of claimed hardship. Phinpathya at 1016. As the reviewing Court, we must “make our decision,” concerning the factors considered by the Board, “based on the Board’s own articulation of its actions,” rather than on assumptions. Ravancho at 175. As stated in Santana-Figueroa:

“. .. [W]hen allegations are specific and supported by evidentiary material, and the Board denies eligibility for relief, it must give reasons for its decisions showing that it has properly considered the circumstances.... To affirm on the theory that the Board necessarily considered whatever the petitioner asserted would free the Board of the obligation to articulate a reasoned basis for its decisions, eliminating any guaranty of rationality . ...” Id. at 1357.

See also 8 C.F.R. §§ 103.3, 242.18(a) (1982); Perez v. INS, 643 F.2d 640, 641 (9th Cir.), modified, 665 F.2d 269 (9th Cir.1981), petition for cert. filed,-U.S.-, 103 S.Ct. 320, 74 L.Ed.2d 296 (1982) (“question presented” relates to whether Court of Appeals erred in holding verification requirements for motions to reopen deportation proceedings could be disregarded in light of Wang).

III.

It is undisputed that petitioners satisfied the first and second requirements of section 1254(a)(1). The immigration judge and the Board, however, held that petitioners failed to show extreme hardship, and thus, they were statutorily ineligible for discretionary relief.18

At the initial hearing before the immigration judge on January 26,1977, petitioners introduced evidence that their children, who were then eight and six years old, are in all respects culturally American; that they both speak English; that they do not speak the language of the Philippines, which is Tagalog (an Austronesian language); and that they have no emotional ties to the Philippines. Petitioners also testified that when they moved to Dallas from Chicago, their oldest son, Michael, had been emotionally traumatized by the relocation, and that a move to the Philippines would cause a more serious trauma because of the different culture.19 In this same connection, petitioners testified to their concern about the effect the different culture of the Philippines would have on both children. Petitioners also testified to the hardship that their deportation would have on Mr. Ramos’s parents.

It is evident from the written decisions of the immigration judge that he did not consider the emotional and other noneconomic hardships that petitioners asserted would result to their children and to Mr. Ramos’s *189parents should they be deported, even though the Board, on the first appeal, had remanded the ease to the immigration judge to update the record, partly in response to petitioners’ assertions of hardship to their children.

In its opinion on the second appeal, the Board recited petitioners’ contentions that “they [i.e., petitioners] would go through agony if separated from their United States citizen children,” and that “the favorable factors in their cases, when combined with the economic detriment that they would allegedly suffer if deported, establish extreme hardship.” The Board also recognized that extreme hardship “depends upon the facts and circumstances of each particular case”; that “[i]n determining whether such hardships exist one must consider all the factors involved in a case”20; and that “what circumstances constitute ‘extreme hardship’ require a delicate balancing and are rarely made by the Board on the basis of a single factor alone.” The Board, however, proceeded to discuss only the economic detriment that would be caused by the petitioners’ deportation:

“In concluding that extreme hardship has not been established in the instant case, we acknowledge that the [petitioners] may encounter some difficulty in obtaining similar employment for similar pay in the Philippines. See Guadarrama-Rogel v. INS, 638 F.2d 1228 (9th Cir. 1981). Any economic detriment caused by their deportation, however, in and of itself is insufficient to support the statutory requirement of ‘extreme hardship.’ See Blanco-Dominguez v. INS, 528 F.2d 382 (9th Cir.1975); Pelaez v. INS, 513 F.2d 303 (5th Cir.1975), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 (1975). The [petitioners] are still comparatively young and have accumulated considerable financial assets in this country. We do not find the possibility of their being unable to find jobs that pay as well as the ones in the United States to be so severe as to result in ‘extreme hardship’ if they are deported to the Philippines. In any event, they should benefit from the experience and maturity gained in the United States.” (Emphasis added except in citations.)

The Board did not in any way address the asserted noneconomic hardship to petitioners themselves or to their children, and it also totally ignored the asserted hardship to Mr. Ramos’s parents, even though these assertions were based on evidence. And, the Board accordingly also failed to consider cumulatively the hardship factors pertaining to each member of the statutory class. These failures amounted to a denial of the consideration which Mr. and Mrs. Ramos were entitled to have the Board give to their claims.

While we emphasize that we “do not question the Board’s finding on the basis of our own view of what constitutes extreme hardship,” we do hold that in making a determination of what constitutes extreme hardship, the decision of the immigration authorities must affirmatively reflect that they have meaningfully addressed and reached a reasoned conclusion concerning all the factors relevant to that determination which are based on evidence, a requirement that the Board itself abstractly recognized, but did not apply. Prapavat at 562.

We recognize that the immigration authorities are burdened by a heavy case load. It is not our intention to require of them lengthy exegeses on immigration law or extended discussion of evidentiary minutiae. All we insist upon is a sufficient indication that they have a fair understanding of what the alien’s various relevant contentions of hardship, supported by the evidence, actually are; that they have meaningfully considered and evaluated each of *190these contentions; and that they provide a statement of the reasons why, in their opinion, these contentions do not, individually and in the aggregate, establish “extreme hardship.”

We reverse the Board’s order as to both petitioners and remand the case to it for further proceedings consistent with this opinion.21

REVERSED AND REMANDED.

Ramos v. Immigration & Naturalization Service
695 F.2d 181

Case Details

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Ramos v. Immigration & Naturalization Service
Decision Date
Jan 14, 1983
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695 F.2d 181

Jurisdiction
United States

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