Aguilar v. Immigration and Naturalization Service, 80-5171
| Decision Date | 07 January 1981 |
| Docket Number | No. 80-5171,80-5171 |
| Citation | 638 F.2d 717 |
| Parties | Guadencia AGUILAR and Neria Irene Magana De Iglesias, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael I. Rose, Miami, Fla., for petitioners.
James P. Morris, Atty., Benjamin R. Civiletti, Atty. Gen., Lawrence Lippe, Gregory C. Weiss, Attys., U. S. Dept. of Justice, Washington, D. C., for respondent.
Raymond A. Morris, Dist. Director, Immigration and Naturalization Service, Miami, Fla., Troy A. Adams, Jr., Dist. Director, Immigration and Naturalization Service, New Orleans, La., for other interested parties.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before HILL, FAY and ANDERSON, Circuit Judges.
Petitioners are mother (Aguilar) and daughter (Magana). They entered the United States as non-immigrant visitors in 1972. After overstaying her visa, Magana married a United States citizen on April 26, 1973. In June, 1975, Magana gave birth to a child. Both Aguilar and Magana were subsequently ordered deported by the judge of the Immigration Court. Following dismissal by the Board of Immigration Appeals of their appeal of the deportation order, 1 petitioners on August 23, 1979, filed a Motion to Reopen, Reconsider and Stay of Deportation with the Immigration and Naturalization Service so that they could file an Application for Suspension of Deportation based on § 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254 (1976). 2 On February 15, 1980, the Board of Immigration Appeals issued an order denying petitioners' Motion. On March 10, 1980, Aguilar and Magana petitioned this court for review on the ground that the Board of Immigration Appeals should not have taken jurisdiction of and decided the Motion. We deny petitioners' request for relief from the Board's refusal to reopen.
Petitioners argue that the Board of Immigration Appeals had no jurisdiction of their Motion to Reopen, Reconsider and Stay of Deportation and that the Motion should have been forwarded to the immigration judge for an evidentiary hearing. Contrary to petitioners' view, however, jurisdiction of their Motion to Reopen properly lay with the Board and not with the immigration judge because the immigration judge's order of deportation had been appealed to the Board and the Board had rendered a decision. 8 C.F.R. § 3.2 3; 8 C.F.R. § 242.22 (1979); Urbano de Malaluan v. Immigration and Naturalization Service, 577 F.2d 589, 592-93 (9th Cir. 1978).
The only remaining question is whether the Board abused its discretion when it denied the Motion to Reopen. In considering the Motion, the Board's responsibility was to determine, on the basis of the moving papers, affidavits, and other supporting evidence, whether petitioners presented a prima facie case of eligibility for suspension of deportation under 8 U.S.C. § 1254 (1976). Urbano de Malaluan v. Immigration and Naturalization Service, 577 F.2d 589, 593 (9th Cir. 1978). "If a prima facie case of eligibility does exist, it would be an abuse of discretion for the Board not to reopen the deportation proceeding to allow a hearing by the immigration judge to determine whether or not eligibility does, in fact, exist; and, if it does, to permit the immigration judge to exercise the discretion provided for in the statute." 577 F.2d at 593.
In the instant case, the Board found that petitioners had not made a prima facie showing that their deportation would result in extreme hardship to themselves or to the United States citizen child of Magana. (Record at 3). 4 In its decision, the Board noted that that no evidence was offered that the then four-year-old United States citizen child would suffer any specified hardship if returned to Belize with his mother or that petitioner Magana's United States citizen husband, from whom she was separated, would suffer such hardship. The Board noted further that petitioners' other immediate relatives live in Belize, not in the United States. Finally, the Board stated that "(t) he possibility of some economic loss to the ... (petitioners), if deported, is insufficient considering the other circumstances of this case to warrant a finding that a prima facie showing of extreme hardship has been made." (Record at 4).
We agree with the Board that petitioners have not made the necessary prima facie showing to become entitled to a hearing by the immigration judge. We hold that the Board did not abuse its discretion in finding that petitioners did not make a prima facie showing that deportation would result in extreme hardship to themselves or to their United States citizen relatives. The fact that one petitioner has a United States citizen child (who is the grandchild of the other petitioner) alone does not establish a prima facie case for suspension of deportation. The argument that deportation of the parent would amount to de facto deportation of the child and thus violate the constitutional rights of the child has been rejected. Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222 (5th Cir. 1975); accord Urbano de Malaluan v. Immigration and Naturalization Service, 577 F.2d 589 (9th Cir. 1978).
1 In their brief to this court, petitioners also argue that the Board of Immigration Appeals erred in its decision affirming the immigration judge's order of deportation. We do not consider this challenge to the order of deportation because it was...
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