Urbano De Malaluan v. Immigration and Naturalization Service

• Decision Date: 27 June 1978
• Docket Number: No. 76-3120,76-3120
• Citation: 577 F.2d 589
• Parties: Erodina URBANO de MALALUAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 589

577 F.2d 589

Erodina URBANO de MALALUAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 76-3120.

United States Court of Appeals, Ninth Circuit.

June 27, 1978.

Sidney Broffman, Los Angeles, Cal., for petitioner.

Michael E. Wolfson, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

On Petition for Review of Deportation Order of the Immigration and Naturalization Service.

Before KENNEDY and HUG, Circuit Judges, and JAMESON ^*, Senior District Judge.

HUG, Circuit Judge:

Petitioner Erodina Urbano de Malaluan is a native and citizen of the Philippines who entered the United States on January 21, 1969 as a nonimmigrant visitor for an authorized stay of 30 days. At the time, she was a single woman, 26 years of age, who had entered for the purpose of visiting her two sisters and a brother who were United States citizens. Petitioner stayed beyond the 30 days. The Immigration and Naturalization Service commenced deportation proceedings on the ground that she had remained in the United States beyond the time authorized. A hearing was held on March 26, 1969 before an immigration judge who found petitioner deportable, but granted her the privilege of voluntary departure. Petitioner appealed the immigration judge's order to the Board of Immigration Appeals, which affirmed the order on July 24, 1969, extending the voluntary departure privilege to August 23, 1969.

The petitioner did not voluntarily depart the United States and continued to remain after the August 23, 1969 date. It then became the duty of the Immigration and Naturalization Service to effectuate the deportation by the issuance of a warrant and notification to the petitioner of the time and place she was to report for departure from the United States. Although the petitioner continued to remain in the United States, the Immigration and Naturalization Service did not communicate with her or take steps to effectuate her departure for six and one-half years.

During the intervening years, petitioner married and had two children, both born in the United States. She continued working as a secretary for Carte Blanche, Inc., a job she had held since March 4, 1969. She and her husband purchased a home in Los Angeles and, with their family, became part of the community. There is no indication that she attempted to conceal her identity or whereabouts.

On February 18, 1976, the Service communicated with petitioner for the first time, requesting that she report to its office for departure from the United States on March 18, 1976. Petitioner then filed a motion to reopen the deportation proceedings to permit her to apply for suspension of deportation pursuant to § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C., § 1254(a)(1). ¹

Section 244 of the Act provides that the Attorney General may, in his discretion, suspend deportation of the alien and adjust his or her status to that of an alien admitted for permanent residence, provided certain conditions of eligibility are met. ² To be eligible for the exercise of this discretion, the alien must establish: (1) physical presence in the United States for a continuous period of not less than seven years preceding the date of application; (2) good moral character during all such period; and (3) that the deportation would result in extreme hardship to the alien or to his or her spouse, parent or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The Service filed a brief in opposition to the motion to reopen and petitioner responded. On September 1, 1976, the Board of Immigration Appeals, on the basis of the written record, entered its order as follows:

PER CURIAM. The respondent moves to reopen the proceedings to apply for suspension of deportation. The respondent has failed to make a prima facie showing of eligibility for the relief sought. Matter of Sipus, Interim Decision 2172 (BIA 1972); Matter of Lam, Interim Decision 2136 (BIA 1972). Accordingly, this motion is denied.

Pursuant to Title 8 U.S.C., § 1105a, petitioner timely filed a petition for review by this court of that order of the Board.

This court has jurisdiction to review the denial of a motion to reopen deportation proceedings. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964). The proper inquiry on review by this court is whether the denial of the motion to reopen was an abuse of discretion. Velasquez Espinosa v. Immigration & Naturalization Service, 404 F.2d 544 (9th Cir. 1968).

Applications for suspension of deportation under § 244(a)(1) of the Act are normally required to be filed as a part of the initial deportation proceedings before the immigration judge and are foreclosed if not brought at that time. However, where circumstances change after the entry of the deportation order, the alien is permitted to petition to reopen the proceedings to seek the discretionary relief. The motion to reopen is addressed to the immigration judge for determination if the order of deportation has not been appealed. However, if the order of deportation has been appealed and a decision made by the Board, as in this case, jurisdiction lies with the Board to rule upon the motion to reopen. 8 C.F.R. § 3.2 and 8 C.F.R. 242.22. ³

It is not the function of the Board at this stage of the proceedings either to make a determination of the eligibility of the alien under § 244 or to exercise the discretion provided for in § 244; rather, it is the function of the Board to make a determination as to whether the alien has set forth a prima facie case for eligibility for relief under § 244.

In the event that the Board enters an order to reopen the deportation proceedings, the matter should be referred to the immigration judge for a hearing to determine the alien's eligibility for relief under § 244. Then, if the alien is found to be eligible, the immigration judge would exercise the discretion provided for by that section. The matter could then be appealed or certified to the Board of Immigration Appeals for a final decision.

It was obviously the intent of Congress, in enacting § 244, that where eligibility exists, the Attorney General or his designee should exercise discretion as to whether deportation should be suspended. The determination of the Board as to whether to reopen the deportation proceedings is not made on the basis of any hearing, but rather on the basis of the moving papers, together with affidavits or other evidence submitted in support thereof. Therefore, the determination by the Board must be limited to the question of whether or not a prima facie case for eligibility under the Act exists. If a prima facie case of eligibility does exist, it would be an abuse of discretion for the Board not to reopen the deportation proceeding to allow a hearing by the immigration judge to determine whether or not eligibility does, in fact, exist; and, if it does, to permit the immigration judge to exercise the discretion provided for in the statute. The decision of the immigration judge may then be appealed to the Board of Immigration Appeals upon the record developed. 8 C.F.R. § 3.1(b)(2).

The brief order of the Board of Immigration Appeals in this case does not state the reason for its ruling that a prima facie case does not exist. The Board merely cites two prior decisions of the Board of Immigration Appeals. In each case, the fact situation was quite different from that of petitioner Malaluan. In neither case cited was the disruption of a family, including United States citizen children, involved. In each case cited, the allegation of hardship was based solely upon economic detriment because the alien would be unable to find equivalent employment. There was no consideration of hardship to children who were United States citizens. ⁴ The reason for the Board's finding can only be adduced from its brief order. It is apparent from the moving papers of the petitioner that she has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of the application. She also provides evidence that she has been, during all of said period, a person of good moral character. There is no evidence in the record that would indicate to the contrary and the Service did not contest this issue. Therefore, the only basis upon which the Board's order could have been grounded is that the petitioner failed to meet the third requirement, that she be a person whose deportation would, in the Attorney General's opinion, result in extreme hardship to the alien or to her spouse, parent, or child, who is a citizen of the United States.

The motion of petitioner to reopen incorporates an application for the suspension of deportation, on the form provided by the Service, which is attached thereto with supporting documents. The application states that the deportation would result in hardship to herself and to her two United States-born children. The application further reveals that, in addition to her husband and children, a number of other members of the petitioner's family also reside in the Los Angeles area. The mother and brother of the petitioner are permanent residents living in Los Angeles. One sister, although not a permanent resident, is also living in Los Angeles. Two sisters and one brother, who are citizens of the United States, are residing in other cities in California. The application further reveals that petitioner and her husband are both employed in California and that the children were five years, four months old and one year, two months old at the time of the Board's order. There is a strong inference of hardship to petitioner and her children from the fact situation itself.

It is the contention of the Immigration and Naturalization Service that the petitioner failed to provide sufficient evidence that the deportation would result in extreme hardship to her or her children. The position of the Service is...