Chookhae v. I.N.S., 84-7198
| Decision Date | 29 October 1984 |
| Docket Number | No. 84-7198,84-7198 |
| Citation | 756 F.2d 1350 |
| Parties | Punngarm CHOOKHAE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ken G. Kambara, Sam T. Ingudomnukul, Los Angeles, Cal., for petitioner.
Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Dzintra I. Janavs, Chief Asst. U.S. Attys., Los Angeles, Cal., for respondent.
Appeal from a Decision of the Immigration and Naturalization Service.
Before SCHROEDER, FERGUSON and NELSON, Circuit Judges.
Punngarm Chookhae petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her application for suspension of deportation. Chookhae challenges the decision of the BIA that her deportation would not cause extreme hardship to her or her two children. In addition to questioning the BIA's ultimate conclusion regarding her hardship status, Mrs. Chookhae also argues that the BIA abused its discretion by failing to consider all relevant factors relating to the hardship question and by relying on a five-year-old record to make its determination. The Immigration and Naturalization Service vigorously opposes all three of Mrs. Chookhae's contentions. We find that we need not, and indeed cannot, reach any conclusion on the BIA's hardship finding because of the failure of the BIA to conduct an inquiry in accordance with the prior mandate of this court. As a result, we once again reverse and remand this case for such an inquiry.
The petitioner, Punngarm Chookhae, is a Thailand citizen who entered the United States in November of 1969 as a nonimmigrant visa student. The petitioner's husband, also a citizen of Thailand, had previously entered the United States as a nonimmigrant student. The petitioner remained in the United States after the expiration of her one-year visa period. After her arrival in the United States, the petitioner gave birth to two children, one born in 1971 and one in 1977, which she and her husband have raised in the United States. On October 19, 1975 the Immigration and Naturalization Service (INS) initiated deportation proceedings against the petitioner.
Mrs. Chookhae conceded her deportability in 1977 and applied for suspension of the deportation proceedings pursuant to 8 U.S.C. Sec. 1254(a)(1). Her application was denied by an immigration judge in 1979 and the Board of Immigration Appeals (BIA) subsequently affirmed the denial of her suspension application. The immigration judge found that Mrs. Chookhae met two of the three criteria for suspension of deportation but she did not meet the third requirement of showing "extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States." 8 U.S.C. Sec. 1254(a)(1). In 1982, some five years after the deportation proceedings commenced, this court reversed the decision of the BIA on the ground that the BIA failed to consider Mrs. Chookhae's well supported claim of hardship to her two children. Chookhae v. Immigration & Naturalization Service, 685 F.2d 441 (memorandum) (9th Cir.1982).
As characterized by the BIA in its subsequent decision, "[t]he Ninth Circuit granted the respondent's petition, holding that the Board had abused its discretion in failing to consider all the factors which bear on hardship, and remanded the case to the Board for a de novo consideration of these factors." Excerpt of Administrative Record (EAR) 2. Despite the BIA's rather broad interpretation of this court's prior mandate to conduct an inquiry into "all the factors which bear on hardship," the BIA did not conduct any further administrative hearings and simply reaffirmed its finding of no extreme hardship based on the administrative record begun back in 1977 and completed in 1979. The petitioner objects to the resolution of her hardship claim based on a five-year-old record.
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...of deportation based on the facts existing at the time it decided the appeal from the order issued by the IJ. Chookhae v. INS, 756 F.2d 1350, 1352 (9th Cir.1984). This factual examination was required because, as we have noted, both the BIA and the IJ had been delegated the authority to gra......
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