Zamora-Garcia v. U.S. Dept. of Justice I.N.S.

• Decision Date: 30 July 1984
• Docket Number: P,No. 83-4350,ZAMORA-GARCI,83-4350
• Parties: Ramonaetitioner, v. UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION & NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 488

737 F.2d 488

Ramona ZAMORA-GARCIA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION &

NATURALIZATION SERVICE, Respondent.

No. 83-4350 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 30, 1984.

Robert A. Shivers, San Antonio, Tex., for petitioner.

William French Smith, Atty. Gen., U.S. Dept. of Justice, Hillary B. Burchuk, Charles E. Hamilton, III, Washington, D.C., David H. Lambert, Dist. Dir., INS, New Orleans, La., Richard M. Casillas, Dist. Dir., INS, San Antonio, Tex., for respondent.

Petition for Review of an Order of the Immigration & Naturalization Service.

ON PETITION FOR REHEARING

(Unpublished Opinion, 724 F.2d 974, January 13, 1984)

Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

On March 30, 1980, Ramona Zamora-Garcia was found to be a deportable alien who had entered the United States without valid entry documents in 1973. She filed for a Suspension of Deportation under 8 U.S.C. Sec. 1254 on that same date. On April 6, 1982, the Immigration Judge (ILJ) denied her request, she appealed this decision, and her appeal was dismissed by order of the Board of Immigration Appeals (Board) on May 18, 1983. The Board's dismissal was originally before us on appeal for a determination of whether the Board abused its discretion in failing to find that deportation would cause appellant "extreme hardship" sufficient to invoke the relief provided by Sec. 1254. We have reconsidered our original unpublished opinion in light of the Board's petition for rehearing, and find the issues worthy of further consideration as well as publication. The petition for rehearing is therefore GRANTED, and we substitute the following published opinion in lieu thereof.

Facts

Ramona Zamora-Garcia is a 32 year old unmarried native citizen of Mexico. She came to the United States in 1969, when she was 17 or 18 years old, and since then has lived with and been employed by Ms. Marilyn Chrisman. Ramona is the Chrismans' housekeeper, and has cared for the two Chrisman children since they were very small. Ms. Chrisman testified in Ramona's behalf in 1982 at the suspension hearing, and stated that the Chrismans consider Ramona "a member of our family." Ramona has lived with the Chrismans continuously since 1969, with the exception of a three week visit to her family in Mexico in 1973. Although she receives a two week vacation each year and has saved $4500, Ramona has chosen not to return to Mexico for her vacations because she no longer feels welcome in her father's home.

The relative to whom Ramona feels closest is her sister, Elia Zamora, who also came to the United States in 1969 and was initially found to be deportable along with Ramona. Elia, however, was granted a Suspension of Deportation because she had married a lawful permanent resident. Besides her father, who has remarried, Ramona's relatives in Mexico include three married sisters and brothers and one unmarried brother. Ramona stated that if she returned to Mexico, she could not live with her father because he lives in her stepmother's house and the two women are estranged. This is why she has not returned to Mexico for a visit in more than ten years. She further stated that her sisters and brothers now have lives of their own, and she could not live with them either.

To be considered for a Suspension of Deportation, the respondent has a duty to prove three things--first, that she has been physically present in the United States for a continuous period of not less than seven years; second, that she has been a person of good moral character during that time; and third, that deportation would cause her extreme hardship. See 8 U.S.C. Sec. 1254. There is no dispute that Ramona meets the first two criteria. However, the Board affirmed the ILJ's finding that she had failed to meet her burden of demonstrating extreme hardship. She therefore was not considered for a Suspension of Deportation.

Standard of Review

We recognize from the outset that the "decision whether to suspend the deportation of an alien who satisfies the three statutory requirements is discretionary, and is subject only to a most restricted judicial review." Ramos v. Immigration & Naturalization Service, 695 F.2d 181, 184-85 (5th Cir.1983). The first two requirements, continuous residency for at least seven years and good moral character, are findings of fact which are to be determined from the evidence "on the record as a whole." Thus, as to the first two requirements, we decline to rule upon decisions by the Board or ILJ that are supported by substantial evidence. See 8 U.S.C. Sec. 1105a(a)(4). As to the requirement of extreme hardship, however, we have held that under the Supreme Court's decision in Immigration and Naturalization Service v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), that factor is to be reviewed under the more limited "abuse of discretion" standard. Ramos, supra, 695 F.2d at 185. We recognized in Ramos that the Act specifically grants the Attorney General the authority to determine the existence of extreme hardship, and that the provision may be quite narrowly construed. Id.

Although we held in Ramos that there was little opportunity for "substantive" judicial review of adverse determinations of extreme hardship, we may review these determinations "procedurally" to ensure that the complaining alien has received full and fair consideration of all circumstances that give rise to his or her claims. Id. at 186. Under such circumstances, Courts of Appeal have remanded to the Board for reconsideration in light of the relevant factors it may have failed to consider. See, e.g., Prapavat v. Immigration & Naturalization Service, 638 F.2d 87 (9th Cir.1981), aff'd on rehearing, 662 F.2d 561, 562 (9th Cir.1982); Santana-Figueroa v. Immigration & Naturalization Service, 644 F.2d 1354, 1356-57 (9th Cir.1981); Ravancho v. Immigration & Naturalization Service, 658 F.2d 169, 174-76 (3d Cir.1981); Antoine-Dorcelli v. Immigration & Naturalization Service, 703 F.2d 19, 21 (1st Cir.1983).

We held in Ramos that for the Attorney General properly to fulfill his discretionary obligation, he or his delegates must actually consider "the facts and circumstances respecting each petitioner's claim of extreme hardship." Ramos, supra, 695 F.2d at 188, citing Santana-Figueroa, supra, 644 F.2d at 1356. We require that the Board "meaningfully address ... each of the alien's assertions of hardship that are based on evidence," giving reasons for denying relief that reflect full consideration of the evidence. Ramos at 188. In reviewing Board decisions on hardship, we base our decision on the Board's articulation of its reasons for denying relief rather than our own assumptions. Id.

Extreme Hardship: Relevant Factors

It is well established that the adverse economic impact of deportation alone is insufficient to justify a finding of extreme hardship. In this case the ILJ found, and the Board affirmed, that the "most that can be said of respondent's case is that deportation to Mexico would result in economic hardship because employment opportunities in that country are not equal to ours." The ILJ found that Ramona's case was "not unlike" Pelaez v. Immigration & Naturalization Service, 513 F.2d 303 (5th Cir.) cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 (1975), where we affirmed the Board's finding of no extreme hardship in the petitioner's claims. In Pelaez, the alien based her claim of hardship on the difficulty in obtaining employment and the lower standard of living in her native country, coupled with the impossibility of obtaining a return visa and the inability to continue to contribute to the support of her family. Id. at 305, n. 1. In Pelaez, we pointed out but did not specifically address the petitioner's claim that deportation would disrupt "the way of life to which she had become accustomed." Id. at 304. We therefore cannot determine in this situation that the ILJ's citation to Pelaez amounted to adequate consideration of Ramona's noneconomic claims of extreme hardship. We find instead that this case presented several factors not present in Pelaez that were relevant to Ramona's claims of hardship, yet were not considered in the proceedings below in accordance with the standards we have set out.

First, both petitioner and her friend and employer, Ms. Chrisman, testified that Ramona is considered a member of the Chrisman family. She has "reared" the Chrisman children for 14 years now, and she participates in family activities. Ms. Chrisman was concerned by the fact that Ramona did not wish to return to Mexico for her vacations and took it upon herself to speak to Ramona's father about the problem, which has never been resolved. When Ramona became involved in some minor trouble with the police, ¹ the Chrismans were fully supportive of her and now vouch for her complete honesty and high moral character.

The estrangement from her natural family, coupled with the development of close ties with her "American" family calls into question the ILJ's finding that Ramona has no "close family ties in this country." ² We are in accord with the First Circuit in finding that it "is unrealistic as well as unjust to adopt such a rigid view of the family unit" as to find that only blood relations may constitute "family." Antoine-Dorcelli v. Immigration & Naturalization Service, 703 F.2d 19, 21 (1st Cir.1983). In Antoine-Dorcelli, the Government sought deportation of a 49 year old native Haitian woman who had been in Puerto Rico since 1970. Prior to her arrival in Puerto Rico, she had lived and worked in Haiti for about 20 years as a servant to the mother of the woman with whom she came to stay in Puerto Rico, Mrs. Craig. Antoine-Dorcelli, like Ramona, had developed a particular attachment to Mrs. Craig's children and indeed had arrived in Puerto Rico in 1970, a year later than Ramona arrived in Texas. The First Circuit...