Leblanc v. I.N.S.

• Decision Date: 18 August 1983
• Docket Number: No. 82-1829,82-1829
• Citation: 715 F.2d 685
• Parties: Thomas LeBLANC and Marie Margaret Leblanc, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 685

715 F.2d 685

Thomas LeBLANC and Marie Margaret Leblanc, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 82-1829.

United States Court of Appeals First Circuit.

Argued June 7, 1983.

Decided Aug. 18, 1983.

Carlos V. Garcia Gutierrez, Santurce, P.R., for petitioners.

Francesco Isgro, Atty., Dept. of Justice, with whom J. Paul McGrath, Asst. Atty. Gen., Civ. Div., and Charles E. Hamilton, III, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondent.

Before CAMPBELL, Chief Judge, McGOWAN, ^* Senior Circuit Judge, and SELYA, ^** District Judge.

McGOWAN, Senior Circuit Judge.

Mr. and Mrs. LeBlanc entered the United States as nonimmigrants, overstayed their period of legal entry, and have been ordered to be deported. Pursuant to 8 U.S.C. § 1254(a)(1) (1976 & Supp. V 1981) ("section 1254(a)(1)"), ¹ they petitioned the Board of Immigration Appeals (the "Board") to reopen its most recent determination in their cause, to consider their motion to suspend their deportations, and to change their status to lawful permanent residents. This, their fourth petition to reopen, was denied, and they appeal. For the reasons stated below, we uphold the Board's decision.

I

Thomas Leblanc left Dominica, British West Indies, for Puerto Rico in August of 1974. Thomas was a resident and citizen of Dominica and he entered the United States as a nonimmigrant visitor for pleasure for a two-week period. He has never left the United States, however. He began work as an electrician shortly after his arrival in Puerto Rico and he continues to work in that trade.

Marie Margaret Commodore entered the United States in December of 1973. She too was a citizen and resident of Dominica who entered the United States in Puerto Rico, ostensibly for a short pleasure visit. She began work as a domestic not long after; she went to Dominica in March, 1975 to visit her ailing mother; she returned to Puerto Rico in June, 1975 with permission to remain for five days; and she has remained there continuously since then. Marie and Thomas were married in October of 1975. Their first child, Thompson, was born in December of that year. A second child, Christopher, followed in July, 1979.

Neither Thomas nor Marie applied for extensions of their initial visitation periods. In January, 1978 they appeared before the INS voluntarily in the hope that they could legitimize their presence in the United States, apparently believing this was necessary in order for Thomas to pursue a claim for back wages against a former employer. In April, 1978 an immigration judge found them deportable and granted them leave to depart voluntarily by July of 1978 or face involuntary deportation. They did not leave voluntarily. Instead they sought and received many extensions, ultimately obtaining a voluntary departure date of no later than September 30, 1981.

In addition to moving for their various extensions of time, the Leblancs attempted to reverse the initial decision to deport them. First they moved to reopen the deportation in order to apply for political asylum. An immigration judge denied the motion as frivolous. They again moved to reopen, this time to allow them to move to suspend their deportation under section 1254(a)(1). The motion was denied by an immigration judge in September 1980, it being clearly without merit as neither Leblanc had yet satisfied the seven-year continuous residence requirement of that section, see supra note 1. The Board of Immigration Appeals dismissed their appeal from the denial in March of 1981, the Board being of the opinion that they still did not satisfy the seven-year requirement. It denied their motion to reconsider in October of 1981, and this court affirmed that decision in July of 1982, concluding that the Board did not abuse its discretion. Leblanc v. United States Department of Justice, No. 81-1860 (1st Cir. July 7, 1982) (memorandum and order). This court noted that the Leblancs had by then satisfied the seven-year requirement but expressed the opinion that "petitioners who satisfy the seven year requirement by abusing the immigration laws and procedures should not gain favored status over those who comply with the applicable rules." Id.

Undaunted, the Leblancs moved to reopen their deportations to allow them to apply for suspension in August, 1982. Their motion was denied on September 16, 1982, because it lacked any evidentiary support. See generally infra pp. 688-689 (regulations requiring evidentiary support). They each filed another motion to reopen to allow them to suspend on September 13, 1982, this time accompanied by a considerable amount of evidentiary material. On October 8, 1982, the Board denied the motions.

The Board made it quite clear that its denial of the motions was an exercise of discretion and was independent of the Leblancs' eligibility vel non under the terms of the statute. Indeed, the Board made no findings as to statutory eligibility. The Board cited INS v. Bagamasbad, 429 U.S. 24, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam), as authority for such discretion, and it relied primarily on three factors in denying the Leblancs' motions. First, Thomas and Marie began to work in this country almost immediately after their arrival. This violation of the immigration laws was considered an adverse factor, and the Board thought it suggested that Marie had misrepresented her purposes in returning to the United States in 1975. Second, although the Leblancs appeared voluntarily in 1978, they have gone to great lengths since then to avoid departure. Third, each of their previous motions lacked any merit, and, as noted by this court, such delay should not be rewarded. In sum, the Board felt that the Leblancs had shown consistent disregard for the immigration laws. Although they now present some evidence to support their claims of extreme hardship, a legal prerequisite for relief, the Board held that these equities do not outweigh the adverse factors cited and that many of the causes of hardship only developed well after the Leblancs were first ordered to depart.

II

The Leblancs appeal the Board's decision, alleging three defects in the proceedings. First, they claim that the Board was obligated to determine whether they stated a prima facie case for relief, that they did in fact make such a case, and therefore the Board was obligated to remand their petitions to an immigration judge for a hearing. Second, even if the Board was not obligated to remand for a hearing, it was an abuse of discretion not to do so in this case. Finally, they claim that they were denied effective assistance of counsel until the present proceedings and that this also supplied a basis to mandate a hearing on the merits of their petition now.

A. Board Discretion

Congress has afforded the Attorney General the power, in his discretion, to suspend the deportation of individuals who satisfy four criteria: (1) they are deportable; (2) they have resided in the United States for at least seven uninterrupted years prior to their petition to suspend; (3) they have been of good moral character throughout that period; and (4) deporting them would, "in the opinion of the Attorney General, result in extreme hardship." 8 U.S.C. § 1254(a)(1) (1976). ² Eligibility for suspension is determined in the first instance by the Immigration and Naturalization Service ("INS"). Typically a motion to suspend would be made during a deportation hearing, but it is not unusual for an alien to request either the immigration judge who heard his case or the Board who heard his appeal to reopen the proceedings to entertain the motion pursuant to 8 C.F.R. §§ 3.2, 3.8(a) (1983). See INS v. Jong Ha Wang, 450 U.S. 139, 140, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (per curiam).

The regulations provide that

[m]otions to reopen ... shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted ... unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.

8 C.F.R. § 3.2 (1983). It is further provided that "[m]otions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." Id. § 3.8(a). The statute and regulations thus confer considerable discretion on the Attorney General and his delegates, and such circumscription of discretion as exists would tend to make reopening less, not more, available.

The contours of our discussion of the Board's obligations and the range of its discretion are formed by two Supreme Court decisions. In INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), a Korean couple sought relief under section 1254(a)(1) after unsuccessful attempts to become permanent residents under other provisions of the Immigration and Nationality Act. They claimed that deportation would cause extreme hardship because their English-speaking children would be deprived of educational opportunities in Korea, and the couple would suffer some economic detriment. None of these allegations were sworn to or supported by evidence. Without a hearing, the Board denied the motion to reopen, finding that the couple had failed to make out a prima facie case of extreme hardship under the statute. The Ninth Circuit reversed en banc. Jong Ha Wang v. INS, 622 F.2d 1341 (9th Cir.1980) (en banc), rev'd, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam). The court said that the couple had alleged facts sufficient to get a hearing and that providing a hearing would comport with the statute's ameliorative purposes. Id. at 1349.

The Supreme Court reversed the Ninth Circuit for two reasons. First, the...