Arrozal v. I.N.S., 97-70068

• Decision Date: 27 October 1998
• Docket Number: No. 97-70068,97-70068
• Citation: 159 F.3d 429
• Parties: 98 Cal. Daily Op. Serv. 7998, 98 Daily Journal D.A.R. 11,121 Remedios Canlas ARROZAL, a.k.a., Remedios Arrozal Yehdego, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 429

159 F.3d 429

98 Cal. Daily Op. Serv. 7998, 98 Daily Journal

D.A.R. 11,121

Remedios Canlas ARROZAL, a.k.a., Remedios Arrozal Yehdego, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-70068.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1998.

Decided Oct. 27, 1998.

Carol L. Edward, Seattle, WA, for petitioner.

Karen A. Hunold, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. I & NS No. A27 699 083.

Before: SCHROEDER, PREGERSON, and BRUNETTI, ^* Circuit Judges.

PREGERSON, Circuit Judge.

Remedios Arrozal Yehdego, a native of the Philippines, petitions for review of a Board of Immigration Appeals ("BIA") order denying her motion to reopen her deportation hearing. She seeks a reopening so that she can request suspension of deportation under § 244 of the Immigration and Naturalization Act ("INA"). Yehdego's request for relief from deportation is based in part on the hardship that her deportation would cause her American citizen husband and American-born children. Yehdego presented evidence that her husband, Emanuel Yehdego, who is originally from Eritrea, would have to stay in the United States because language and cultural barriers would prevent him from supporting their family in the Philippines. Yehdego's three U.S. citizen children, Kudus (eleven years old), Gabriel (seven years old), and Angelica (two years old), would suffer because they would be separated from one parent whether they stayed in this country or moved to the Philippines. Additionally, Kudus and Gabriel attend school in this country and are imbued with our American culture. Kudus and Gabriel are also asthmatic. According to their doctor, they would suffer from more frequent asthma attacks and probably develop a more chronic form of asthma if they moved to the Philippines.

DISCUSSION

The Immigration and Naturalization Service ("INS") argues that (1) we do not have jurisdiction to hear Yehdego's petition, (2) even if we have jurisdiction, we should dismiss this petition because Yehdego failed to report for deportation in 1990, and (3) in any event, the BIA did not abuse its discretion in denying Yehdego's motion to reopen. We deal with each of these arguments in turn.

I. Jurisdiction.

Both parties agree that Yehdego's petition falls under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as amended by Pub.L. No. 104-302, 110 Stat. 3656 (1996) ("IIRIRA").

Under the IIRIRA's transitional rules, unless an exception applies, this court has jurisdiction to hear Yehdego's appeal from the BIA's denial of her motion to reopen. See IIRIRA § 309(c)(1). The INS argues that an exception does apply. Specifically, the INS invokes § 309(c)(4)(E) of the IIRIRA, which precludes an appeal of "any discretionary decision under section ... 244." ¹ The INS contends that under Sarmadi v. INS, 121 F.3d 1319 (9th Cir.1997), we should treat the denial of Yehdego's motion to reopen as a discretionary decision But the petitioner in Sarmadi also intended to request suspension of deportation under § 244 and yet we did not treat his motion to reopen as a discretionary decision under § 244. See id. at 1320, 1322. Sarmadi, therefore, does not support treating the BIA's denial of Yehdego's motion to reopen as a decision under § 244.

under § 244 because she intends to request suspension of deportation under that section.

To the contrary, Sarmadi supports a finding that the transitional rules do not deny this court jurisdiction over motions to reopen. In Sarmadi, we considered whether the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") prohibits judicial review of an order denying a motion to reopen. Sarmadi, 121 F.3d at 1320-21. The AEDPA precludes review of any "final order of deportation against an alien who is deportable by reason of having committed ... any offense covered by [§ 237(a)(2)(A)(ii) of the INA]." Id. at 1321, n. 1. Section 237(a)(2)(A)(ii) of the INA makes any alien who "is convicted of two or more crimes involving moral turpitude ... deportable." See 8 U.S.C. § 1227 (codifying INA § 237). The BIA ordered Sarmadi deported because he had been convicted of two crimes involving moral turpitude. Sarmadi, 121 F.3d at 1320. Sarmadi then moved to reopen his immigration hearing so that he could request suspension of deportation under § 244. Id.

In considering Sarmadi's motion to reopen, we pointed out that the motion to reopen was intertwined with the deportation order. Id. at 1322. Because the deportation order was issued under the moral turpitude section, § 237(a)(2)(A)(ii) of the INA, we concluded that the order denying Sarmadi's motion to reopen also should be treated as an order under that moral turpitude section. See id. Thus, we concluded that the AEDPA's limitation against reviewing any final order under the moral turpitude section precluded review of the order denying Sarmadi's motion to reopen. Id. at 1321.

In this case, Yehdego's deportation order was issued under § 241(a)(2) of the INA for overstaying her visa. Following the rationale of Sarmadi, the BIA's order denying Yehdego's motion to reopen should be treated as an order under § 241(a)(2), the overstay section of the INA. But § 241 is not one of the INA sections listed in § 309(c)(4)(E) of the IIRIRA, the section that precludes an appeal from certain discretionary decisions.

Hence, this court has jurisdiction under the IIRIRA's transitional rules to hear Yehdego's appeal from the BIA's denial of her motion to reopen.

II. Dismissal for Failing to Report for Deportation.

The INS next argues that even if we have jurisdiction, we should dismiss Yehdego's petition under Hussein v. INS, 817 F.2d 63 (9th Cir.1986) because she failed to report for deportation in 1990. In Hussein, we dismissed a petition for review of a BIA order because the petitioner had escaped from federal custody. Id. Yehdego's conduct, however, markedly differs from the egregious conduct that led to the dismissal of the appeal in Hussein. Unlike the petitioner in Hussein, Yehdego is not a fugitive from justice seeking relief in absentia. See Katz v. United States, 920 F.2d 610, 612 (9th Cir.1990) (refusing to dismiss appeal because at the time Katz appealed, he was no longer a fugitive from justice) abrogated on other grounds by Lozada v. Deeds, 964 F.2d 956, 956-57 (9th Cir.1992). Thus, unlike the petitioner in Hussein, Yehdego "remains subject to [this court's] jurisdiction and its mandate no matter the result." Id.

III. BIA's Denial of Yehdego's Motion to Reopen.

This court reviews for abuse of discretion the BIA's denial of a motion to reopen. Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995). The BIA abuses its discretion when it "fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief." Id. at 849 (emphasis added) (quoting Yepes-Prado v. INS, 10 F.3d 1363, 1366 (9th Cir.1993)). "The BIA ... decides whether an applicant is entitled to a favorable exercise of agency discretion on a case by case basis by 'taking into account the social and humane considerations presented in an applicant's favor and

                balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident.' "  Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir.1994) (emphasis added) (quoting Yepes-Prado, 10 F.3d at 1365-66).   In its determination, the BIA must take into account all relevant factors.  Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533 (9th Cir.1996).  And in balancing the factors, the BIA must "weigh both favorable and unfavorable factors by evaluating all of them, assigning weight or importance to each one separately and then to all of them cumulatively."  Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.1993) (internal quotations omitted).  Moreover, the BIA must indicate how it weighed these factors and indicate with specificity that it heard and considered petitioner's claims.  Id. A conclusory statement by the BIA concerning favorable factors is insufficient.  Id.; Yepes-Prado, 10 F.3d at 1370;  Jara-Navarrete v. INS, 813 F.2d 1340, 1342 (9th Cir.1986)
                

A.

Yehdego contends that the BIA abused its discretion by failing to consider all the factors in her favor. We agree.

Yehdego presented evidence about her community involvement, her marriage to a United States citizen, the hardship that her deportation would cause her citizen children's health and well-being, and information concerning the human rights record of the Philippines. All these factors must be considered by the BIA in exercising its discretionary powers. See Villena v. INS, 622 F.2d 1352, 1357-60 (9th Cir.1980); Tukhowinich v. INS, 64 F.3d 460, 463-64 (9th Cir.1995).

The BIA, however, brushed aside the factors in Yehdego's favor merely by stating that it "recognize[d] the respondent's significant equities, particularly those related to her United States citizen children who are in no way responsible for their parent's past conduct." This cursory and generalized analysis of Yehdego's favorable factors does not suffice. See Jara-Navarrete, 813 F.2d at 1342 (holding that the BIA's superficial mentioning of petitioner's favorable factors was an abuse of discretion).

Such a cursory review of Yehdego's claim is especially inappropriate when considering the adverse effect that Yehdego's deportation would have on Kudus, Gabriel, and Angelica, her American-born children. The BIA must give careful and individualized consideration to the hardship that United States citizen children would suffer as a result of the deportation of a parent. See Jara-Navarrete, 813 F.2d at 1342-43. Moreover, the BIA cannot simply discount a citizen child's medical problems. Watkins, 63 F.3d at 849; Jara-Navarrete, 813 F.2d at 1343....