Cerrillo-Perez v. I.N.S.

• Decision Date: 12 March 1987
• Docket Number: No. 85-7681,CERRILLO-PEREZ and M,85-7681
• Parties: Juanagdalena Cerrillo-Garcia, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1419

809 F.2d 1419

55 USLW 2457

Juan CERRILLO-PEREZ and Magdalena Cerrillo-Garcia, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7681.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 4, 1986.

Decided Feb. 10, 1987.

As Amended March 12, 1987.

Eric T. Nordlof, Kathleen M. Weber, Seattle, Wash., for petitioners.

Stewart Deutsch, Washington, D.C., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before FLETCHER, FERGUSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Petitioners Juan Cerrillo-Perez and Magdalena Cerrillo-Garcia, husband and wife, seek review of a decision by the Board of Immigration Appeals (BIA) upholding the immigration judge's denial of their applications for suspension of deportation. ¹ We vacate and remand because the BIA failed to consider the hardship to the three United States citizen children that might result were they to remain in this country following their parents' deportation.

I. FACTS

Juan and Magdalena Cerrillo entered the United States without inspection in 1975. Juan Cerrillo is forty-seven years old with a fourth grade education. Magdalena Cerrillo is forty years old with no formal education. The Cerrillos have nine children. The three youngest children are United States citizens whose ages are presently nine, eight and four. All the school-aged children are enrolled in public schools. English is the primary language of the three citizen children, although they speak Spanish when conversing with their parents.

The Cerrillos own their home which is located in Burlington, Washington. They currently have $22,000 worth of equity in that property. Mr. Cerrillo works as a tractor driver and earns approximately $300 a week. Mrs. Cerrillo works as a farm laborer and earns approximately $152 a week. In addition to the equity in their home, the Cerrillos have $7,000 worth of personal property.

In 1982, the Immigration and Naturalization Service (INS) issued orders to show cause, alleging that the Cerrillos were deportable because they had entered the United States without inspection. The Cerrillos conceded deportability and applied for discretionary relief in the forms of voluntary departure and suspension of deportation. The immigration judge found the Cerrillos ineligible for suspension of deportation due to their inability to prove extreme hardship and granted them voluntary departure. The Cerrillos appealed to the BIA. The BIA dismissed the appeal and affirmed the immigration judge's decision.

II. SCOPE OF REVIEW

The Attorney General has discretion to suspend deportation if an alien: (1) has been present in the United States for a period of not less than seven years; (2) is a person of good moral character; and (3) "is a person whose deportation would ... 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." 8 U.S.C. Sec. 1254(a)(1) (1982). Both the immigration judge and the BIA held that the Cerrillos satisfied the first two requirements, but failed to prove that their deportation would result in extreme hardship. The Cerrillos appeal from the latter finding.

We review BIA determinations regarding extreme hardship under an abuse of discretion standard. See INS v. Wang, 450 U.S. 139, 144-45, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam). The BIA has "the authority to construe 'extreme hardship' narrowly." Id. at 145, 101 S.Ct. at 1031. Nonetheless, in reaching its conclusions, "[w]e have consistently required the BIA to state its reasons and show proper consideration of all factors when weighing equities and denying relief." Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985); see also Sullivan v. INS, 772 F.2d 609, 610 (9th Cir.1985). The BIA is required to consider all relevant factors under 8 U.S.C. Sec. 1254(a)(1) "[b]ecause hardship depends on specific circumstances [and] discretion can be properly exercised only if the circumstances are actually considered." Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981). Accordingly, "[w]hen important aspects of the individual claim are distorted or disregarded," the BIA has abused its discretion. Id.

Although we defer to administrative agency findings, Wang, 450 U.S. at 145, 101 S.Ct. at 1031, we "set aside an agency action if [we] find that [t]he agency has relied on factors that may not be taken into account under, or has ignored factors that must be taken into account under, any [governing] source[ ] of law." A Restatement of Scope-of-Review Doctrine, 38 Ad.L.Rev. 235, 235 (1986) (Sec. (b)(2)). Where an agency is required by statute "to 'consider' a factor, the agency must reach 'an "express and considered conclusion " about the bearing of (the factor).' " Central Vermont Railway, Inc. v. ICC, 711 F.2d 331, 336 (D.C.Cir.1983) (emphasis added) (quoting Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 516 (D.C.Cir.1983) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C.Cir.1978))). Moreover, "a litigant may [properly] contend that the applicable statute does not permit the administrator ... to refuse to consider a possibly relevant factor." Regulatory Procedures Act of 1981: Hearings on H.R. 746 Before the Subcomm. on Administrative Law and Gov'tal Relations of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 953 (1981) (memorandum prepared for ABA Coordinating Group on Regulatory Reform). Where a possibly relevant factor is "significant enough to step over a threshold requirement of materiality[,] ... any lack of agency response or consideration becomes of concern." Portland Cement Ass'n v. Ruckleshaus, 486 F.2d 375, 394 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); see also Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Ad.L.Rev. 239, 263 (1986) (Agency "action should be held arbitrary more readily if the agency does not respond to comments made by participants in the proceeding."). Compare Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553-54, 98 S.Ct. 1197, 1216-17, 55 L.Ed.2d 460 (1978) ("cryptic and obscure reference" to a factor cannot serve as basis for "seeking to have that agency's determination vacated on the ground that the agency failed to consider matters 'forcefully presented' ").

III. HARDSHIP TO THE UNITED STATES CITIZEN CHILDREN

In determining extreme hardship, the BIA must consider the adverse consequences flowing from the deportation of the alien--both to the alien and to his "spouse, parent, or child who is a citizen of the United States." 8 U.S.C. Sec. 1254(a)(1). The Supreme Court recently noted that because "the plain language of the statute [is] so compelling, ... the Board is not required ... to consider the hardship to a third party other than a spouse, parent, or child, as defined by the Act." INS v. Hector, --- U.S. ----, 107 S.Ct. 379, 381, 93 L.Ed.2d 326 (1986) (per curiam).

The hardship to a citizen or permanent resident child may be sufficient to warrant suspension of the parents' deportation. 8 U.S.C. Sec. 1254(a)(1). Here, the Cerrillos have three United States citizen children. The BIA is required to consider all of the possibly relevant factors and to reach an "express and considered conclusion" as to the hardship to them. See Central Vt. Ry., 711 F.2d at 336; see also Santana-Figueroa, 644 F.2d at 1356 (noting BIA's obligation actually to consider the specific circumstances in hardship determinations).

The Cerrillos contend that the BIA failed to consider a relevant factor--the hardship to their United States citizen children if those children remain in the United States following their parents' deportation. The importance and centrality of the family in American life is firmly established both in our traditions and in our jurisprudence. The Supreme Court has said, "[o]ur decisions establish that the Constitution protects the sanctity of the family precisely because it is deeply rooted in the Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977). Moreover, the preservation of family unity is recognized as a critical factor in admitting refugees to a country. See United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 43-4 (1979). Equally important, it is universally recognized that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the state." Universal Declaration of Human Rights, G.A.Res. 217, U.N.Doc. A/810. According to H.R.Rep. No. 85-1199, "[t]he legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united." H.R.Rep. No. 1199, 85th Cong., 1st Sess. 7, reprinted in 1957 U.S.Code, Cong. & Admin. News 2016, 2020. It is against this background that the BIA must examine the eligibility of an alien to remain in this country when his or her deportation might result in the break-up of a family or otherwise cause hardship to a "spouse, parent, or child, who is a citizen ... or permanent residen[t]" of the United States. 8 U.S.C. Sec. 1254(a)(1).

Here, the BIA considered the hardship the citizen children would suffer if they were to accompany their parents to Mexico. The BIA found that because the children were young and were capable of speaking some Spanish, they would be able to adjust readily to life in a foreign country. Although it acknowledged that the children would have to make an adjustment to "a new way of life and educational system in Mexico," the BIA held that "such [an] adjustment is not significantly...