Villena v. Immigration & Naturalization Service
| Decision Date | 04 June 1980 |
| Docket Number | No. 78-2954,78-2954 |
| Citation | 622 F.2d 1352 |
| Parties | Narciso Edgardo Inciong VILLENA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leslie J. Frank, Frank & Rappaport, Los Angeles, Cal., for petitioner.
Howard D. Gest, Asst. U. S. Atty., Los Angeles, Cal., for respondent.
Petition to Review a Decision of the U.S. Immigration & Naturalization Service.
Before WRIGHT, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG, and TANG, Circuit Judges. *
Villena petitions for review of decisions of the Board of Immigration Appeals (the Board) dismissing his appeal and denying his motion to reopen his deportation proceedings. The appeal to the Board was from the order of the immigration judge denying Villena's application for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254. The motion to reopen was filed while that appeal was pending and was based upon new facts supporting his claim of eligibility for relief. The issue raised is whether the Board abused its discretion by concluding that neither (1) the facts alleged in the application nor (2) those alleged in the motion established the extreme hardship required by § 244 of the Act, 8 U.S.C. § 1254. 1
We conclude that the Board did not abuse its discretion by denying the original application, but that the additional facts alleged in the motion to reopen entitled Villena to a hearing to determine whether he is eligible for and whether he merits the requested relief. Thus, we hold that the Board abused its discretion by denying Villena's motion to reopen his deportation proceedings, and we reverse and remand for proceedings consistent with this opinion.
Narciso Edgardo Inciong Villena is a 36-year-old native and citizen of the Philippines who entered the United States on September 1, 1965, as a nonimmigrant student. He is married to a Philippine citizen who similarly is seeking to reopen her deportation proceedings to apply for suspension of deportation. They have two United States citizen children, one born in June 1974 and the other in January 1977.
After obtaining a master of science degree in chemistry from the University of Oklahoma and the necessary authorization from the Immigration and Naturalization Service (the INS), Villena accepted employment as a chemist with an American corporation.
Villena was authorized to stay in this country until May 21, 1968. On May 20, 1968 he filed a petition seeking preference classification based upon his occupation, pursuant to § 203(a)(3) of the Act, 8 U.S.C. § 1153(a)(3). It was not until almost four years later, in April 1972, that the INS informed Villena that it could not accept his petition because he had listed two occupations 2 and because "Assistant Packaging Technologist" (Villena's job title) was not listed in the Dictionary of Occupational Titles.
The INS then notified Villena that, in view of the fact that his petition had not been accepted, he was to leave the country by May 6, 1972. Villena testified that he sought advice from his attorney 3 with regard to both notices. Apparently no further action was taken either by Villena or by his attorney.
Subsequently Villena was ordered to appear before a special inquiry officer in December 1972, but on the advice of his attorney he did not appear.
At his deportation hearing in 1976 Villena admitted deportability but requested suspension of deportation. Villena submitted numerous affidavits to the immigration judge evidencing his good moral character and his contributions to the community as well as a letter from a clinical psychologist detailing the hardship that Villena's citizen child would suffer if Villena were deported. The immigration judge found Villena to be "a worthwhile individual," but nonetheless denied the application on the ground that Villena had failed to establish the requisite extreme hardship. 4
Villena appealed the denial. While the appeal was pending before the Board, Villena moved to reopen his deportation proceedings, seeking suspension of deportation on the basis of five new facts discussed infra : (1) that his wife, who had by then accrued seven years of continuous presence in the United States, was applying to reopen her deportation proceedings to file for suspension of deportation; (2) that their second citizen child had been born; (3) that he and his wife had purchased a new home valued at $79,000; (4) that his brother had become a United States citizen; and (5) that his parents had become "legal residents of the United States" and were residing with Villena and his wife.
The Board dismissed Villena's appeal and denied the motion to reopen, concluding that the hardship claimed by Villena was not "the type of hardship contemplated by Congress" and that, considering the record as a whole, including the facts alleged in the motion to reopen, Villena had failed to meet his burden of proving eligibility for relief. Villena petitions this court for review of the Board's decisions.
Section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), grants the Attorney General discretion to suspend an alien's deportation and to adjust his status to that of a lawfully admitted permanent resident if the alien is deportable, has been physically present in the United States for a continuous period of not less than the seven years immediately preceding his application, has been a person of good moral character during all of that period, and establishes that deportation would result in extreme hardship to himself, or to his spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. The alien has the burden of proving both that he is eligible for discretionary relief and that he merits the favorable exercise of the Attorney General's discretion. Cf. Lee v. INS, 541 F.2d 1383, 1386 (9th Cir. 1976) (adjustment of status).
Where the Board denies an application on the ground that the alien is ineligible for relief, we will overturn the decision only if the Board has abused its discretion, see Banks v. INS, 594 F.2d 760, 762 (9th Cir. 1979), or if the Board has failed to exercise its discretion, Asimakopoulos v. INS, 445 F.2d 1362, 1365 (9th Cir. 1971).
The immigration judge found that Villena was ineligible for suspension of deportation because he had failed to establish the requisite extreme hardship. 5 The Board agreed. Villena asserts that he demonstrated extreme hardship to himself and to his son who is a United States citizen. On the basis of the facts alleged in the original application we cannot hold that the immigration judge and the Board abused their discretion by denying Villena the relief that he requested.
"Extreme hardship" is not a fixed and inflexible term; a discretionary determination of extreme hardship must be based on the particular facts of each case. Banks v. INS, 594 F.2d at 762.
Villena submitted affidavits attesting to his contributions to the community in projects such as organizing discussions to encourage better communication between teenagers and their parents. He claimed that he had adopted an American lifestyle, becoming completely integrated into the American culture, and that, if deported, he would be separated from friends and family who live in this country. Further, he contended that he would be unable to obtain comparable employment in his profession because industry in the Philippines has not yet reached sophisticated levels of research.
The Board should consider Villena's contribution to his community in ruling on his application. See Wang v. INS, 622 F.2d at 1345 n. 2 (9th Cir. 1980) (en banc). We know that the success of the community projects in which Villena participates does not rise or fall depending on Villena's presence. Nonetheless, his involvement in such projects does support his allegation that he has become integrated into the American culture. Moreover, separation from a community of people that one has come to identify with and become involved in results in a greater loss than does separation from people with whom nothing is shared. Thus, although this fact alone would not establish Villena's claim of extreme hardship, it should be weighed with other factors supporting the claim.
Separation from family may establish extreme hardship. See Urbano de Malaluan v. INS, 577 F.2d 589, 593-94 (9th Cir. 1978); Yong v. INS, 459 F.2d 1004, 1005 (9th Cir. 1972). At the time of his application Villena had only one brother in the United States; most of his family was in the Philippines. Thus, deportation would have reunited him with his family, rather than separating him from it.
Villena's claim that he will be unable to find comparable employment as a chemist in the Philippines has two dimensions: (1) that he will suffer economic hardship; and (2) that deportation will force him to forfeit his years of education, training, and research experience in chemistry. 6 We have stated that economic loss alone will not establish extreme hardship, e. g., Nishikage v. INS, 443 F.2d 904 (9th Cir. 1971); Kasravi v. INS, 400 F.2d 675, 676 (9th Cir. 1968), but economic hardship should be considered in conjunction with other factors supporting Villena's claim.
We believe that it may be a hardship for a person to be foreclosed from practicing his profession. However, we would distinguish between the inability to engage in a particular occupation and the inability to engage in any occupation as evidencing different degrees of hardship. See Kasravi v. INS, 400 F.2d at 676. Villena did not allege that he could not be a chemist or that he would be unable to obtain any job. Rather, he testified that he would be unable to do research at a sophisticated level. That may be a disadvantage to him, but alone it is not the extreme hardship contemplated by Congress in drafting the statute.
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