Watkins v. I.N.S., s. 91-70600
| Decision Date | 16 August 1995 |
| Docket Number | Nos. 91-70600,93-70920,s. 91-70600 |
| Citation | 63 F.3d 844 |
| Parties | 95 Cal. Daily Op. Serv. 6444, 95 Daily Journal D.A.R. 11,041 Zenaida Adviento WATKINS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Milton Katz, San Francisco, CA, for petitioner.
Joseph F. Ciolino, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, DC, for respondent.
Before: GOODWIN, HUG, and FLETCHER, Circuit Judges.
Petitioner, a native and citizen of the Philippines, seeks review of the Board of Immigration Appeals' ("BIA") denial of her motion to reopen deportation proceedings to allow her to seek either adjustment of her status under section 245 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1255, or suspension of deportation, section 244(a)(1) of the Act, 8 U.S.C. Sec. 1254(a)(1). We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a). We reverse the BIA's decision for abuse of discretion.
Petitioner entered the United States in 1978 under a nonimmigrant temporary work visa (an H-1 visa). Her visa expired January 25, 1983. In December 1982, she married Theodore Watkins, a United States citizen, and in March 1983, she applied for permanent residence based on her recent marriage. An Immigration and Naturalization Service ("INS") investigation revealed that petitioner's marriage was a sham. Watkins and petitioner admitted this fact at an INS hearing.
Thereafter, the INS instituted deportation proceedings against petitioner. She conceded deportability and requested a grant of voluntary departure. On May 6, 1983, an immigration judge ("IJ") found petitioner deportable pursuant to 8 U.S.C. Sec. 1251(a)(2) and denied petitioner's application for voluntary departure. The IJ found that she lacked good moral character as evidenced by her attempt to circumvent immigration laws through a sham marriage and by giving false statements under oath. Petitioner appealed the denial of voluntary departure to the BIA.
During the pendency of her appeal to the BIA, on August 1, 1983, petitioner married Romulo Francisco, a naturalized United States citizen. On January 16, 1984, petitioner filed with the BIA a motion to remand for adjustment of status based on her second marriage. The BIA consolidated the appeal and the motion, and on December 24, 1985, it denied both. The BIA held that the IJ did not abuse its discretion by denying voluntary departure. Further, the BIA denied the motion to remand for adjustment of status because, even though petitioner had established prima facie eligibility, her prior sham marriage cast suspicion on her second marriage.
In July 1987, petitioner filed a motion to reopen for adjustment of status based on changed circumstances, pursuant to 8 U.S.C. Sec. 1255. In support of the motion, she submitted the birth certificate of her son, a United States citizen, and an immigrant visa petition filed by her husband on her behalf. On August 29, 1991, the BIA denied her motion to reopen. The BIA stated that even assuming that petitioner presented a prima facie case for adjustment of status, "it is unlikely that [she] would be granted adjustment of status in a favorable exercise of discretion" because of her previous disregard of the immigration laws.
Petitioner appealed the denial of her motion to reopen to this Court. On June 1, 1993, we entered an order withdrawing the appeal pending the filing of a motion to the BIA to reopen proceedings to apply for adjustment of status or suspension of deportation. Pursuant to our order, petitioner filed her second motion to reopen on June 29, 1993. Her motion asked the BIA to reopen the proceedings to provide petitioner the opportunity to apply for suspension of deportation, or in the alternative, adjustment of status. The motion was supplemented with the birth certificate of petitioner's second son, an affidavit from a licensed psychologist attesting to the son's medical condition--Attention - Deficit - Hyperactivity - Disorder ("ADHD"), and an affidavit from two residents of petitioner's husband's hometown in the Philippines attesting to the threat of retributive violence facing petitioner's husband and his family if they return to the Philippines.
On October 19, 1993, the BIA denied petitioner's second motion to reopen, finding that petitioner failed to demonstrate a prima facie claim for suspension of deportation because she failed to demonstrate "extreme hardship." The BIA also found that even assuming petitioner had demonstrated extreme hardship or a prima facie claim for adjustment of status, it would deny petitioner's motion for discretionary reasons. This appeal followed.
We review BIA denials of motions to reopen proceedings for abuse of discretion. INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985). "An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law." Jen Hung Ng v. INS, 804 F.2d 534, 538 (9th Cir.1986).
Petitioner contends that the BIA abused its discretion when it refused to reopen the proceedings against her to allow her to apply for suspension of deportation or adjustment of status based on her 11-year marriage to a United States citizen, the birth of her two United States citizen sons, the medical condition of her youngest child, her 16-year residence in the United States throughout which she worked as a registered nurse, her good moral character, and her family's fear of retributive violence if returned to the Philippines.
The BIA can deny petitioner's motion to reopen on any of three independent grounds: (1) "failure to establish a prima facie case for the relief sought," (2) "failure to introduce previously unavailable, material evidence," or (3) "a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992).
In the instant case, the BIA denied petitioner's motion on the first and third grounds: Petitioner failed to establish a prima facie case for suspension of deportation because she failed to prove extreme hardship, and alternatively, even if the BIA granted the motion to reopen, it would refuse to grant the underlying relief requested as an exercise of its discretion. We reverse because in both cases, the BIA abused its discretion.
The Board did not rule that petitioner failed to make out a prima facie claim for adjustment of status. In fact, the BIA noted in its December 24, 1985 decision that petitioner was, indeed, eligible for adjustment of status. It denied the relief as a matter of discretion. Petitioner thus failed to establish a prima facie case only for suspension of deportation.
Petitioner must meet three requirements to receive a suspension of deportation: (1) continuous physical presence in the United States for seven years preceding the filing of the application; (2) good moral character during such period; and (3) the deportation will result in "extreme hardship" to the alien, or to her United States citizen or permanent resident spouse or children. 8 U.S.C. Sec. 1254(a)(1). The BIA held that petitioner failed to make out a prima facie case of suspension of deportation because she did not show extreme hardship.
In finding that petitioner did not show extreme hardship, the BIA abused its discretion in three ways. It did not consider all relevant factors before ruling, it did not consider the cumulative effect of the factors it did consider, and it did not provide a reasoned explanation for its conclusions.
The BIA stated that "[w]e find the respondent has failed to make a prima facie showing that the professional and social changes she would face upon returning to the Philippines rise to the level of extreme hardship." It then concluded that the birth of a second child, in and of itself, did not constitute extreme hardship: Finally, the BIA stated that "respondent's children are still young, and should have little difficulty in adjusting to life in the Philippines, should they accompany their mother there." The BIA discounted testimony that the second child could not be adequately treated for his "emotional disorder" in the Philippines.
But the BIA failed to mention several relevant factors in its decision denying extreme hardship: the hardship to petitioner's United States citizen spouse of 11 years, her family's fear of retributive violence if returned to the Philippines, and her second son's inability to learn a foreign language.
The BIA has discretion to interpret "extreme hardship" narrowly if it so chooses, INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam), "as long as it considers all factors relevant to the hardship determination and states its reasons for denying the requested relief," Ramirez-Durazo v. INS, 794 F.2d 491, 498 (9th Cir.1986). "When the BIA distorts or disregards important aspects of the alien's claim, denial of relief is arbitrary, and the BIA is considered to have abused its discretion." Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985), modified, 785 F.2d 650 (9th Cir.1986); see also Jen Hung Ng, 804 F.2d at 538. "The BIA's denial of relief can be affirmed only on the basis articulated in the decision, and this court cannot assume that the BIA considered factors that it failed to mention in its decision." Jen Hung Ng, 804 F.2d at 538; see also Batoon v. INS, 707 F.2d 399, 402 (...
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