Contreras-Buenfil v. Immigration and Naturalization Service, CONTRERAS-BUENFI

• Decision Date: 01 August 1983
• Docket Number: No. 82-7217,P,CONTRERAS-BUENFI,82-7217
• Citation: 712 F.2d 401
• Parties: Florentinoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 401

712 F.2d 401

Florentino CONTRERAS-BUENFIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 82-7217.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1983.

Decided Aug. 1, 1983.

Linton Joaquin, Los Angeles, Cal., for petitioner.

George H. Wu, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

On Petition to Review a Decision of the Board of Immigration Appeals.

Before BROWNING, Chief Judge, CHOY and FERGUSON, Circuit Judges.

PER CURIAM:

Contreras-Buenfil seeks review of a Board of Immigration Appeals decision dismissing his appeal from a decision of the Immigration Judge denying his application for suspension of deportation.

In May 1971, Florentino Contreras-Buenfil entered the United States illegally, leaving a wife and four children in Mexico. Contreras-Buenfil has resided continuously in California, living since 1975 with Flora Lopez. Together, they support two children--Flora's son, Jose, from a prior relationship, and a daughter, Carol, by Contreras-Buenfil. Flora also entered the United States without inspection. Both her children, however, are citizens by birth. Jose was five years old and Carol two months old at the time of Contreras-Buenfil's 1979 deportation hearing.

Contreras-Buenfil conceded deportability and applied for suspension of deportation under section 244(a)(1) of the Immigration and Naturalization Act, 8 U.S.C. § 1254(a)(1). He testified that deportation would cause him hardship because (1) he had a work-related back injury for which he required medical treatment unavailable in Mexico, (2) he would be separated from the woman he loved and her children, one of whom was also his own, and (3) he would be unable to work in Mexico and, therefore, be unable to continue supporting his original family.

The Immigration Judge held that because Contreras-Buenfil and Flora were not married, Contreras-Buenfil could not base his application on alleged hardship to either Jose or Carol. The application was denied and Contreras-Buenfil was permitted voluntary departure.

Contreras-Buenfil appealed to the Board, arguing the Immigration Judge erred in refusing to consider his medical history, the hardship to the two citizen children, or the hardship he would suffer from the separation from his California family. The Board dismissed the appeal on the grounds Contreras-Buenfil had submitted no evidence he continued to require medical treatment and, except for his infant daughter, all his family ties were in Mexico.

An alien is eligible for suspension of deportation if he has resided continuously in the United States for seven years, is of good moral character, 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 ...." 8 U.S.C. § 1254(a)(1).

The grant of suspension of deportation for hardship is discretionary, and we may not substitute our definition of "extreme hardship" for that of the Board. INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981). We may reverse the Board's denial of relief only if the Board's exercise of its discretion was "arbitrary, irrational, or contrary to law." Santana-Figueroa v. INS, 644 F.2d 1354, 1355-56 (9th Cir.1981). Denial of relief is arbitrary if important factors relevant to the hardship determination are not considered; the Board, therefore, must state its reasons for denying relief showing it has properly considered all factors. Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981); Santana-Figueroa, 644 F.2d at 1356. We first consider the allegation that the Immigration Judge and the Board failed to consider potential hardship to the two children.

The definition of "child" in the Immigration and Naturalization Act includes "a child legitimated under the law of the child's residence or domicile." 8 U.S.C. § 1101(b)(1)(C). Cal.Civ.Code § 7004(a)(4) provides that "[a] man is presumed to be the natural father of a child if he .... receives the child into his home and openly holds out the child as his natural child." The INS conceded before the Board that because under California law Contreras-Buenfil would be presumed to be Carol's father, she should be considered his "child" for purposes of applying the hardship statute. Nonetheless, the Board affirmed the Immigration Judge's denial of relief...