Choe v. Immigration and Naturalization Service
| Decision Date | 04 April 1979 |
| Docket Number | No. 78-1390,78-1390 |
| Citation | 597 F.2d 168 |
| Parties | JONG SHIK CHOE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CARTER and WRIGHT, Circuit Judges, and SOLOMON, District Judge. *
Choe petitions for review of the denial of his motion to reopen his deportation proceedings. He contends that he should have been granted an evidentiary hearing on his application for suspension of deportation. We affirm the denial of his motion.
Choe, a native and citizen of Korea, entered the United States legally as a nonimmigrant student. He was authorized to remain here until April 16, 1974 but stayed longer than permitted. A deportation hearing was held and he was found deportable but granted voluntary departure on or before December 20, 1974.
On October 10, 1975 he filed his first motion to reopen his deportation proceedings and an application for suspension of deportation under § 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a). He had just completed the required seven-year period of continuous presence in the United States and alleged extreme hardship to himself because of the loss of the retail business in which he had invested in 1973. The motion was denied, and the petition for review was dismissed because it was not timely filed.
On August 8, 1977 Choe filed his second motion to reopen, incorporating his original application and also alleging extreme hardship to his citizen child who was born June 6, 1977. The Board of Immigration Appeals (the Board) found that, despite the birth of the child, Choe still had failed to make a prima facie showing of eligibility for suspension and denied his motion.
To be eligible for suspension of deportation an alien must prove: (1) continuous physical presence in the United States for the immediately preceding seven years; (2) good moral character; and (3) extreme hardship to himself or to his spouse, parent, or child, who is a United States citizen or a lawful permanent resident. 8 U.S.C. § 1254(a)(1).
When an application for suspension of deportation establishes a prima facie case of eligibility, it is an abuse of discretion to deny a motion to reopen deportation proceedings. Urbano de Malaluan v. INS, 577 F.2d 589, 592 (9th Cir. 1978). The only issue is whether Choe made a prima facie showing of extreme hardship.
Choe alleges economic hardship to himself and to his child. Hardship to citizen children must be considered by the Board in ruling on applications for suspension of deportation, but an alien cannot gain favored status merely by the birth of a child. Id. at 594; Lee v. INS, 550 F.2d 554, 555 (9th Cir. 1977).
The facts here are more similar to those in Lee, id. at 555, where this court affirmed the denial of a motion to reopen, than to those in Urbano de Malaluan, 577 F.2d at 595 n. 5,...
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...in Mexico); Hernandez-Patino v. INS, 831 F.2d 750, 755 (7th Cir. 1987); Holley v. INS, 727 F.2d 189 (1st Cir. 1984); Jong Shik Choe v. INS, 597 F.2d 168 (9th Cir. 1979); see also Shooshtary v. INS, supra, at 1051 (stating that the "extreme hardship requirement of section 212(h)(2) was not e......
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In re Cervantes-Gonzalez
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