Turri v. I.N.S., 91-9525

• Decision Date: 09 July 1993
• Docket Number: No. 91-9525,91-9525
• Citation: 997 F.2d 1306
• Parties: Maria Miriam TURRI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. . Filed
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1306

997 F.2d 1306

Maria Miriam TURRI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 91-9525.

United States Court of Appeals Tenth Circuit.

Filed July 9, 1993.

Daniel M. Kowalski, Denver, CO, for petitioner.

Stuart M. Gerson, Asst. Atty. Gen., Civil Div., Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, Civil Div., Anne C. Arries, Atty., U.S. Dept. of Justice, Office of Immigration Litigation, Civil Div., Washington, DC, for respondent.

Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER, ^* District Judge.

PER CURIAM.

Petitioner seeks review of two decisions of the Board of Immigration Appeals, ¹ the first of which found petitioner deportable and denied her request for a suspension of deportation pursuant to 8 U.S.C. § 1254(a) on the ground that she had not established she would suffer "extreme hardship" if deported. The second decision denied petitioner's motions to reopen the proceedings and to reconsider her request for suspension of deportation. We have jurisdiction to review the Board's decisions under 8 U.S.C. § 1105a, and we reverse and remand for further consideration.

I.

Petitioner came to the United States from Italy in 1976 at the age of twenty-seven on a nonimmigrant student visa to pursue graduate work. In connection with her studies at the University of Denver Graduate School of Social Work, petitioner was instrumental in establishing and running the Denver branch of an international program that brings people to the United States to work and observe American techniques, mostly in the social sciences.

Although she has remained in the United States solely on the basis of her student visas, petitioner has not pursued any studies since December of 1986. Instead, she has continued her work with the international program and has developed a thriving free-lance business teaching Italian language and culture courses, translating documents, and assisting business people seeking to enter markets in Italy. Petitioner is highly regarded in the Denver community, as evidenced by the 105 people who attended her deportation hearing and the many people who submitted letters or affidavits in support of petitioner's application for suspension and her motions to reconsider and to reopen. Although petitioner's business has been profitable and well received by the community, it has not been sanctioned by the INS.

In 1989, petitioner essentially turned herself in to the INS in the hopes that she could obtain a suspension from deportation, the only avenue she believed available to secure more permanent residence in the United States. The Attorney General has discretion, under 8 U.S.C. § 1254(a)(1), to suspend the deportation of an otherwise deportable alien who has been physically present in the United States for at least seven years, has been a person of good moral character during those seven years, and "is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." At issue in this case is whether petitioner's deportation would result in extreme hardship to her, as petitioner has no family in the United States.

II.

Petitioner has the burden of proving her eligibility for suspension of deportation. See Hernandez-Cordero v. United States INS, 819 F.2d 558, 560 (5th Cir.1987) (en banc). The first two requirements, seven years' continuous residence and good moral character, are factual questions that we review for substantial evidence. Id.; Amezquita-Soto v. INS, 708 F.2d 898, 902 (3d Cir.1983). These requirements are not at issue here. The third requirement, that deportation would result in extreme hardship, is a discretionary matter that we review only for an abuse of discretion. ² Hernandez-Cordero, 819 F.2d at 560; Amezquita-Soto, 708 F.2d at 902-03 & n. 11.

Our review of the Board's determination on extreme hardship is limited. See Hernandez-Cordero, 819 F.2d at 562 (" '[W]e doubt that there remains much, if any, scope for judicial substantive review, even under an "abuse of discretion" standard, of no "extreme hardship" determinations.' ") (quoting Ramos v. INS, 695 F.2d 181, 185 (5th Cir.1983)). So long as the Board considers all the relevant factors, this court cannot second-guess the weight, if any, to be given any factor. See, e.g., Sanchez v. United States INS, 755 F.2d 1158, 1161 (5th Cir.1985).

Nonetheless, "we may still scrutinize the [Board's] decision for procedural regularity." Hernandez-Cordero, 819 F.2d at 563; see also Ravancho v. INS, 658 F.2d 169, 176 (3d Cir.1981). One of the procedural requirements this and other circuits have recognized is that the Board must actually consider all factors relevant to a particular alien's claim of hardship. See Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987); Carrete-Michel v. INS, 749 F.2d 490, 493 (8th Cir.1984); Ravancho, 658 F.2d at 175; Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981); cf. Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir.1992) (application for waiver of deportation).

No single factor is dispositive of extreme hardship; the Board must evaluate the cumulative effect of all the relevant factors in determining whether an alien has established extreme hardship. See Hernandez-Cordero, 819 F.2d at 563; Bueno-Carrillo v. Landon, 682 F.2d 143, 146 n. 3 (7th Cir.1982); Ravancho, 658 F.2d at 175; Santana-Figueroa, 644 F.2d at 1356. Failure to actually consider all the relevant factors constitutes an abuse of discretion. See Ravancho, 658 F.2d at 175; Santana-Figueroa, 644 F.2d at 1356; cf. Diaz-Resendez, 960 F.2d at 495 (application for waiver of deportation). Therefore, the Board must articulate its reasons for denying relief sufficiently for us, as the reviewing court, to be able to see that the Board considered all the relevant factors.

In her petition for review, petitioner asserts that the Board failed to actually consider all the evidence relating to her assistance to, and position in, the community; the difficulty of finding housing and employment in Italy; and the psychological trauma petitioner would suffer if she returned to Italy and her family in light of her history of being abused by her father and having problematic relations with her family. We agree that the Board did not sufficiently articulate its reasons for denying relief to establish that it actually considered all the relevant evidence.

III.

In its initial opinion denying petitioner's application for suspension, the Board stated:

In determining whether deportation will cause an alien to suffer extreme hardship, the following factors are taken into consideration: age of the subject; family ties in the United States and abroad; length of residence in the United States; condition of health; conditions in the country to which an alien is returnable, both economic and political; financial status, including business and occupation; the possibility of other means of adjustment of status; whether of special assistance to the United States or community; immigration history; and position in the community. See Matter of Anderson, 16 I & N Dec. 596 (BIA 1978).

R. at 363.

In the next paragraph, the Board said: "We have carefully reviewed the record in this case, and have concluded that all of the factors presented, considered in their entirety, do not constitute extreme hardship within the meaning of the Act." Id. Thereafter, the Board specifically discussed petitioner's ability to obtain employment in Italy and her problematic family relations, but never discussed whether petitioner was of special assistance to the community, her position in the community, or her financial status, including her business, ³ even though petitioner submitted extensive evidence relevant to these factors.

The circuits do not agree about what constitutes sufficient articulation of the Board's reasons for denying relief. Compare Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985) (holding that Board fails to show proper consideration of all relevant facts when it dismisses alien's claims with "conclusory or laconic statements"), amended, 785 F.2d 650 (9th Cir.1986), and Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir.1984) (rejecting Board's "conclusory statement that it considered all factors [because the statement] fails to delineate its reasoning adequately") with Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992) (concluding that Board's concentration on a single factor in last paragraph of opinion was reasonable because it was strongest factor for relief and Board's notation of other relevant factors elsewhere in its opinion established that Board actually considered those factors) and Hernandez-Cordero, 819 F.2d at 563 (quoting Sanchez, 755 F.2d at 1160, in an en banc opinion for the proposition that review " 'is limited to ascertaining whether any consideration has been given' by the [Board] to the factors establishing 'extreme hardship,' " and rejecting panel opinion that Board failed to analyze cumulative effect of individual claims of hardship given that Board "specifically stated that it 'considered all of the factors presented, both individually and cumulatively' "). But see Diaz-Resendez, 960 F.2d at 497 (stating in subsequent panel opinion that "[t]he Board must do more than just refer to relevant factors in passing").

In Becerra-Jimenez v. INS, 829 F.2d at 1000, we followed the general standards set forth in Osuchukwu v. INS, 744 F.2d 1136, 1143 (5th Cir.1984), and Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir.1986), in determining that the Board adequately articulated its reasons for finding the alien deportable and denying him voluntary departure.

In Osuchukwu, the court noted:

"It [BIA] has no duty to write an exegesis on every contention. What is required is merely that it consider the issues...