Sullivan v. I.N.S.

• Citation: 772 F.2d 609
• Decision Date: 30 September 1985
• Docket Number: No. 84-7317,84-7317
• Parties: Anthony Corbett SULLIVAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 609

772 F.2d 609

Anthony Corbett SULLIVAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7317.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 5, 1984.

Decided Sept. 30, 1985.

David M. Brown, Brown, Weston & Sarno, Beverly Hills, Cal., for petitioner.

Dzintra I. Janavs, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Appeal from the Board of Immigration Appeals.

Before CHAMBERS, KENNEDY, and PREGERSON, Circuit Judges.

KENNEDY, Circuit Judge:

Petitioner Anthony Sullivan appeals from a decision of the Board of Immigration Appeals (BIA) denying his application for suspension of deportation. The BIA did not abuse its discretion in determining that no extreme hardship is disclosed in the application, and we affirm.

Sullivan, a native and citizen of Australia, entered the United States in February 1973 as a nonimmigrant visitor authorized to remain in the country until January 1974. In April 1975, the Immagration and Naturalization Service (INS) commenced deportation proceedings against him, and in June a continuance of the deportation hearing was granted to permit Sullivan to file for asylum on the ground that, as a homosexual, he would be persecuted upon his return to Australia. In April 1975, Sullivan and one Richard Adams obtained a marriage license and participated in a marriage ceremony conducted by a minister in Colorado. Adams attempted to obtain an immigrant visa for Sullivan on the basis of Sullivan's newly acquired status as an alleged spouse of an American citizen, and the deportation proceedings against Sullivan were adjourned during the pendency of Adams' visa petition. The visa petition was denied by the INS, a decision that we affirmed. Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982). We held that even assuming for analytic purposes the validity of the marriage under Colorado law, the marriage would be insufficient to confer spousal status for purposes of federal immigration laws. Id. at 1040.

The deportation hearings resumed in February 1980, and Sullivan requested a further continuance to apply for suspension of deportation on the ground that his deportation would result in extreme hardship both to himself and to Adams. Sullivan's argument is based on two principal points first, that severance of his relation with Adams will cause him personal anguish and hurt, and, second, that deportation to Australia will cause him undue hardship because homosexuals are not accepted in that society and because the members of his own family who live in Australia have turned against him. Even if all of Sullivan's arguments are accepted at face value, they do not necessarily constitute a showing of extreme hardship as the term is defined in the immigration laws. We further find the Board has given adequate consideration to the individual claims in the case to exercise its discretion to deny the application.

We review the BIA's finding of no extreme hardship for an abuse of discretion. Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984); see also INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam). The BIA, however, must articulate its reasons for denying relief and must demonstrate that it has considered all factors relevant to the hardship determination. Mattis v. INS, 756 F.2d 748, 750 (9th Cir.1985); Patel v. INS, 741 F.2d 1134, 1137 (9th Cir.1984); Zavala-Bonilla, 730 F.2d at 567; Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983) (per curiam); Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.1981) (per curiam).

The requirement of articulated findings by the BIA serves two purposes. First, it ensures that each alien receives consideration of the circumstances unique to his or her case. Second, it provides the reviewing court with a record from which it can determine whether the BIA properly exercised its discretion. The BIA has satisfied these requirements in the case before us. The BIA decision demonstrates particular attention to the specific claims raised by petitioner and provides us with an adequate record upon which to review the BIA's discretionary determination. The BIA summarized Sullivan's arguments as follows:

The respondent claims that his deportation would result in "extreme hardship" to himself and to his United States citizen male "spouse" or "life partner." He alleges extreme hardship to himself based on the separation from his "life partner" whom he "married" and has lived with continuously since April 1975, and who would probably not qualify as an immigrant under Australian immigration laws. He claims that as a result of his open homosexuality his family and friends in Australia have disowned him and that he no longer has any family ties there. He further claims the inability to find suitable employment if returned to Australia due to the economic conditions in that country, its hostility toward homosexuals, and his absence from the job market for more than 10 years. The respondent stated that he is a viable and respected member of the Los Angeles community and in particular a leader in the Gay Community there.

The BIA further recognized that, "[t]he elements to establish 'extreme hardship' are necessarily dependent upon the facts and circumstances of each case."

Mindful of this principle, the BIA considered each of the individual hardships alleged by Sullivan in his application. It concluded that his separation from Adams did not amount to extreme hardship because "[s]eparation from those upon whom one has become dependent is common to most aliens who have spent a considerable amount of time in the United States." It found petitioner's claims regarding the difficulty of readjustment to life in Australia to be "the type of hardship experienced by most aliens who have spent time abroad." It found that the claimed lack of job opportunities did not amount to extreme hardship and, in so finding, noted that Sullivan "has not worked in the United States since 1977...." Finally, it discounted petitioner's community ties in Los Angeles because they were acquired during the period he was illegally present in this country. The BIA refused to consider the hardship to Adams because he was not "a qualifying relative to whom hardship may be shown under the express provisions of the statute." This interpretation of the statute fully comports with the law of this circuit. Adams, 673 F.2d at 1040. The BIA, after explicitly considering all factors relevant to the hardship determination in this case, concluded that these factors did not amount to the special and unique circumstances required to support a finding of extreme hardship sufficient to warrant suspension of deportation.

Deportation rarely occurs without personal distress and emotional hurt. Various courts have previously upheld orders of the BIA that resulted in the separation of aliens from members of their families, see, e.g., Amezquita-Soto v. INS, 708 F.2d 898, 902 (3d Cir.1983); Guadarrama-Rogel v. INS, 638 F.2d 1228, 1230 (9th Cir.1981); Banks v. INS, 594 F.2d 760, 763 (9th Cir.1979) (per curiam); Noel v. Chapman, 508 F.2d 1023, 1027-28 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975), or placed aliens in war-torn countries in which life can be deemed harsh, if not brutal, see, e.g., Saballo-Cortez v. INS, 749 F.2d 1354, 1357-58 (9th Cir.1984); Zepeda-Melendez v. INS, 741 F.2d 285, 289-90 (9th Cir.1984); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). Against this background, the individual application before us does not demonstrate that the BIA abused its discretion. The Board considered the petitioner's individual claims on their merits and acted within its authority in denying the application.

The BIA has discretion to construe extreme hardship narrowly when dealing with suspension of deportation. Wang, 450 U.S. at 145, 101 S.Ct. at 1031. It did not abuse that discretion here.

The decision of the BIA is AFFIRMED.

PREGERSON Circuit, Judge, dissenting.

I dissent. For the reasons stated below, I believe the BIA abused its discretion in denying Sullivan's application for suspension of deportation.

As the majority correctly notes, immigration authorities may construe "extreme hardship" narrowly in cases concerning suspension of deportation. INS v. Wang, 450 U.S. 139, 144-45, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1980) (per curiam). However, "[w]hen important aspects of the individual claim are distorted or disregarded, denial of relief is arbitrary." Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981). See also Zavala-Bonilla, 730 F.2d 562, 567 (9th Cir. 1984)(the BIA must consider all circumstances relevant to the hardship determination); Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983) (per curiam) (same). Further, when the BIA employs conclusory statements in dismissing an alien's claims, a court may decide that the BIA abused its discretion by failing to " 'give reasons which show that it has properly considered the facts which bear on its decision.' " Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.1981) (per curiam) (quoting Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981) ). See also De La Luz v. INS, 713 F.2d 545, 546 (9th Cir.1983) (per curiam) (BIA must view situation realistically). Here, the BIA failed to comply with these guidelines. And, in concluding that the BIA adequately considered each of Sullivan's alleged hardships, I believe the majority overlooks these requirements as well.

Sullivan alleged that his deportation would result in "extreme hardship" because of a number of unique and special circumstances. Sullivan alleged extreme personal and emotional hardship due to his forced separation from Adams, whom he "married" and has lived with continuously since 1972. Sullivan contended that information from the Australian government suggested that Adams, a car rental agent, would...