Barrera-Leyva v. Immigration and Naturalization Service

• Decision Date: 15 September 1980
• Docket Number: P,BARRERA-LEYV,No. 79-7391,79-7391
• Citation: 637 F.2d 640
• Parties: Marcosetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 640

637 F.2d 640

Marcos BARRERA-LEYVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 79-7391.

United States Court of Appeals,

Ninth Circuit.

Submitted May 6, 1980.

Decided Sept. 15, 1980.

Frank S. Pestana, Los Angeles, Cal., on briefs, for petitioner.

Andrea Sheridan Ordin, Los Angeles, Cal., on briefs, for respondent.

Petition to Review a Decision of the U.S. Immigration & Naturalization Service.

Before ALARCON and NELSON, Circuit Judges and JAMESON, ^* District Judge.

JAMESON, Senior District Judge:

Marcos Barrera-Leyva seeks review, pursuant to 8 U.S.C. § 1105a, of an order of the Board of Immigration Appeals (Board) dismissing his appeal from a decision by an immigration judge denying suspension of deportation under 8 U.S.C. § 1254(a)(1). ¹

I. Factual Background

Petitioner, a native and citizen of Mexico, who is now 33 years old, entered the United States without inspection in March, 1969. He was in Mexico briefly in 1974, and has not been out of the United States since then. He lives in Oxnard, California with his wife ² and seven children, five of whom were born in Mexico and two of whom are United States citizens. Petitioner's wife went to Mexico to give birth to each of the five older children. The children remained in Mexico until 1975, when they came to the United States. They are all now attending school in the United States. The two younger children were born in the United States on October 4, 1977, and September 15, 1978, respectively.

Petitioner has four sisters living in Chicago, and a brother in Farmersville, California. All are lawful permanent residents of the United States. Petitioner's parents, two other brothers, and two other sisters live in Mexico. His wife's entire family are lawful permanent residents, living in Oxnard.

Petitioner is the sole supporter of his wife and children. He earns about $250 per week as an agricultural worker. Before coming to the United States, petitioner worked in the fields in Mexico.

In May, 1978, nine years after petitioner came to the United States, deportation proceedings were initiated against him. At his deportation hearings, petitioner admitted deportability, but requested a suspension of deportation based on extreme hardship to himself and his citizen children, under 8 U.S.C. § 1254(a).

Petitioner argued that deportation would cause extreme hardship because of the high unemployment rate in Mexico, a much lower pay scale, lack of good food and health care, and because he would be unable to pay for his children's education. He also stated that the "main problem" is that the five older children do not want to go back to Mexico.

The immigration judge in an oral opinion found that petitioner met the seven years presence and good moral character requirements of the statute, but found him ineligible for relief because the nature of his hardship claim was primarily economic and thus insufficient to establish extreme hardship. The Board dismissed petitioner's appeal from this decision on the same grounds that his claimed hardship was merely economic.

The sole question presented on this appeal is whether the Board abused its discretion in upholding the finding of the immigration judge that petitioner was ineligible for suspension of deportation because he had failed to establish extreme hardship. This court recently considered the extreme hardship provision of § 1254(a)(1) in two en banc cases, Wang v. I&NS, 622 F.2d 1341 (9 Cir. 1980), and Villena v. I&NS, 622 F.2d 1352 (9 Cir. 1980). ³ We shall consider petitioner's contentions in the light of these cases.

II. Scope of Review

The discretionary determination of extreme hardship is not bound by any fixed rules; rather, it depends upon the facts and circumstances of a particular case, Banks v. I&NS, 594 F.2d 760, 762 (9 Cir. 1979), and we cannot substitute our opinion for that of the Attorney General. ⁴ Although the Attorney General's discretion under § 1254(a)(1) is broad, the statute should be liberally construed to effectuate its ameliorative purpose. See Wang, supra at 1346; Chan v. I&NS, 610 F.2d 651, 654 (9 Cir. 1979). This court has held failure to consider all the factors that bear on hardship to be an abuse of discretion. Chan, supra at 655; Wang, supra, at 1346; see also Villena, supra, at 1357-61. We find that the immigration judge and the Board abused their discretion in failing to consider the non-economic factors that may help to establish extreme hardship on petitioner and his citizen children if petitioner is deported.

III. Extreme Hardship

A. Factors to Consider

In Wang, supra, we noted that an alien need demonstrate extreme hardship to only one member of the class specified in the statute to establish eligibility for suspension of deportation. We also noted, however, that if extreme hardship to more than one of the class is alleged, the Board should consider the aggregate effect of deportation on all such persons. Wang, supra at 1347 and n. 6. In other words, even if the hardship to one person would not itself amount to extreme hardship, the Board should consider whether the aggregate effect on the protected class amounts to extreme hardship. See id at 1349.

Villena reinforces this reading of Wang. In reviewing the Board's denial of Villena's application for suspension of deportation, the court examined each of Villena's claimed hardships, noting that although any one factor alone "would not establish Villena's claim of extreme hardship, (each) should be weighed with other factors supporting the claim." Villena, supra at 1357. Taken together, Wang and Villena suggest that the Board should consider the combined effect of individual hardship factors on individual members of the specified class and on the class as a whole, in determining whether petitioner has demonstrated extreme hardship.

This court has recognized in many cases that economic detriment alone does not establish extreme hardship, but is a factor to consider with others in determining eligibility for suspension of deportation. Wang, supra at 1348; Villena, supra at 1358; Choe v. I&NS, 597 F.2d 168, 170 (9 Cir. 1979); Chan v. I&NS, 610 F.2d 651, 655 (9 Cir. 1979); Urbano de Malaluan v. I&NS, 577 F.2d 589, 594 (9 Cir. 1978). In at least one case, however, we distinguished between inability to find comparable employment and inability to find any employment, suggesting that the inability to secure any employment constitutes more than mere economic detriment. Kasravi v. I&NS, supra, 400 F.2d at 676; see also Villena, supra at 1358. It is also true that other personal hardships may flow from inability to obtain any employment, such as inadequate health care and diminished education and general material welfare.

Although some cases suggest otherwise, ⁵ in determining eligibility for suspension of deportation the Board can consider hardship only to members of the specified class. However, the existence of family or relatives outside the enumerated class is not irrelevant to the hardship determination. Breakup of close family ties is an important factor pertinent to hardship on an alien and especially his children. Villena, supra at 1359; Urbano de Malaluan, supra at 593-94. See also Chan, supra at 655, Yong v. I&NS, 459 F.2d 1004, 1005 (9 Cir. 1972).

Another important factor to weigh in the hardship determination is the difficulty of adjusting to a new country. The age of any children involved is a relevant consideration, see Choe v. I&NS, 597 F.2d at 170, and the degree to which roots have been established in this country must also be considered. See Urbano de Malaluan, supra at 595; Villena, supra at 1357. Every alien who is deported will require some adjustment; whether adjustment affects the hardship determination depends upon the degree of adjustment that will be required. That is, the degree of adjustment necessary must be greater than that required of the ordinary alien who is deported. Cf. Wang, supra at 1346.

B. Hardship in this Case

Petitioner contends that the immigration judge and the Board did not consider the hardship to himself and to his citizen children that would result from their separation from relatives residing in the United States. Petitioner has four sisters living in Chicago and a brother in Farmersville, California. The rest of his family, including his father, two brothers, and two sisters, live in Mexico. If these were the only family ties to consider, we would not be persuaded that petitioner had alleged sufficient facts to warrant consideration by the Board.

The Board should, however, have considered that petitioner's wife's family, a significant part of the family unit, reside in Oxnard, California. The Board's decision stated only that "(n)o evidence was submitted that the respondent's departure . . . would constitute a hardship to his lawful permanent resident siblings." The immigration judge and the Board ignored the effect on petitioner and his two citizen children that would result from breaking up the family unit. Hardship to the young children especially is likely should they be separated from their maternal grandmother and her children. Cf. Villena, supra at 1359. Given that Congress has expressed concern for the problem of keeping families of United States citizens and immigrants united, family separation is "a factor strongly militating against denial" of petitioner's application. Id. at 1360. The fact that members of the family unit are not within the class specified in the statute does not affect the closeness of family ties. We are considering here the effect of separation on petitioner and his citizen children, not on the resident family members.

Petitioner next argues that the hardship his family will suffer due to inadequate health care, diminished educational opportunity, and lower general material welfare should have been considered by the Board. We are not faced here with a mere likelihood of a lower standard of living. The...