Hernandez-Cordero v. U.S. I.N.S.

• Decision Date: 19 June 1987
• Docket Number: No. 85-4587,HERNANDEZ-CORDERO and M,85-4587
• Citation: 819 F.2d 558
• Parties: Patricioaria Guadalupe Ortega de Hernandez, Petitioners, v. UNITED STATES IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 558

819 F.2d 558

56 USLW 2001

Patricio HERNANDEZ-CORDERO and Maria Guadalupe Ortega de

Hernandez, Petitioners, v. UNITED STATES IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 85-4587.

United States Court of Appeals, Fifth Circuit.

June 19, 1987.

Barbara Hines, Austin, Tex., for petitioners.

Lawrence H. Rudnick, Philadelphia, Pa., for amicus curiae AM Immigration.

James M. Spears, Edwin Meese, III, Atty. Gen., Dept. of Justice, Robert L. Bombaugh, Director, Office of Immigration Litigation, Civ. Div., Allen W. Hausman, Asst. Director, Madelyn E. Johnson, Eloise Rosas, Richard M. Evans, Lauri Steven Filppu, Marshall Tamor Golding, Attys., Washington, D.C., for I.N.S.

Richard M. Casillas, Dist. Director, San Antonio, Tex., David H. Lambert, Dist. Director, I.N.S., New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Patricio Hernandez-Cordero and his wife, Maria Guadalupe Ortega de Hernandez, appeal the denial of their application for a suspension of deportation. 8 U.S.C. Sec. 1254(a)(1). We affirm.

I.

Mr. and Mrs. Hernandez are citizens of the Republic of Mexico. They have resided in the United States continuously since they were married in 1975. Mr. Hernandez is a self-employed trim-carpenter contractor and earns approximately $12,000 per year. Mrs. Hernandez is a housewife. The Hernandezes' assets are valued at approximately $70,000.

The Hernandezes have four children: Victor, age 14, Patricio Jr., age 11, Lisa, age 9 and Veronica, age 8. Victor is a Mexican citizen; the three youngest children are American citizens.

Mr. Hernandez is subject to deportation because he has never obtained a visa. 8 U.S.C. Sec. 1251(a)(1). Although Mrs. Hernandez obtained a visitor's permit upon her entry to the United States, she is also subject to deportation because she did not depart when it expired. 8 U.S.C. Sec. 1251(a)(2).

Mr. and Mrs. Hernandez applied for a suspension of deportation and contended that they were eligible for discretionary relief because deportation would cause them "extreme hardship." See 8 U.S.C. Sec. 1254(a)(1). The Hernandezes argued that deportation would cause economic hardship because they would be forced to sell their newly-bought home at a loss and would have difficulty finding work in Mexico. The evidence of economic hardship was supported by an affidavit from an economist who specializes in Latin America. The Hernandezes also argued that deportation would cause emotional and psychological hardship because they would be uprooted from the community to which they had grown accustomed. An affidavit was submitted from a licensed psychologist detailing the emotional difficulties the Hernandez family would likely suffer if deported. Six teachers also submitted affidavits regarding the diminished educational opportunity available in Mexico and the adverse impact this would likely have on the Hernandez children.

After evaluating all of the evidence, the immigration judge denied the application for a suspension of deportation. Although the immigration judge found that deportation would cause hardship for Mr. and Mrs. Hernandez and their children, he found that the hardship was not "extreme." The immigration judge recognized the economic hardship of selling a newly-bought home at a loss, but concluded that this was a "self-inflicted wound" because the house was built several months after deportation proceedings commenced. The immigration judge also recognized that the employment The Board of Immigration Appeals (BIA) upheld the denial of the application for a suspension of deportation. The BIA evaluated all of the alleged hardships that deportation would cause for the Hernandez family, including the financial hardship, the difficulties of adjusting to life in Mexico, and the educational burden on the children. In affirming the immigration judge's determination that deportation would not cause "extreme hardship," the BIA expressly stated that it had "considered all of the factors presented, both individually and cumulatively."

                opportunities in Mexico are not as favorable as those in the United States, but noted that it is well-established that economic hardship alone cannot constitute "extreme hardship."   See, e.g., Zamora-Garcia v. INS, 737 F.2d 488, 491 (5th Cir.1984).  Even considering the combined effect of economic hardship with the other potential hardship factors, the immigration judge found that the hardship was not "extreme."    The Hernandezes are young, healthy and have significant family ties in Mexico where their parents and most of their brothers and sisters reside.  The immigration judge specifically found that deportation would not cause "extreme hardship" to any of the three American citizen children who, notably, are bilingual
                

Mr. and Mrs. Hernandez brought the instant appeal, arguing that the BIA abused its discretion in denying the application for a suspension of deportation. A panel of this court agreed and reversed the BIA, finding that "the mere recitation that all of the factors were considered cumulatively is not sufficient." Hernandez-Cordero v. INS, 783 F.2d 1266, 1269 (5th Cir.1986). For the reasons that follow, we affirm the determination of the BIA.

II.

Section 244(a)(1) of the Immigration and Nationality Act creates a two-tiered statutory framework for suspension of deportation. 8 U.S.C. Sec. 1254(a)(1). First, eligibility for a suspension of deportation is only available to an alien who: (1) has been physically present in the United States for a continuous period of at least seven years immediately preceding the application; (2) is a person of good moral character; and (3) 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 for permanent residence. 8 U.S.C. Sec. 1254(a)(1). The burden is on the alien to establish his eligibility for a suspension of deportation. Gomez-Martinez v. INS, 593 F.2d 10 (5th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979).

Second, even if these eligibility requirements are satisfied, the Attorney General retains the discretion to suspend, or refuse to suspend, deportation. INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (1985). As a corollary to this ultimate discretion to deny relief to an otherwise eligible alien, the Supreme Court has explained that "if the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met." Id. at 2102.

The standard of review varies depending on which aspect of the statutory scheme is at issue. Under the first tier, we review the BIA's findings of continuous residency and good moral character under the "substantial evidence" test. Zamora-Garcia, 737 F.2d at 490. A BIA finding regarding the "extreme hardship" requirement is reviewed under the more limited "abuse of discretion" standard. Id.

The standard of review is exceedingly narrow for the Attorney General's ultimate decision under the second tier of the statute. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). The Attorney General enjoys "unfettered" discretion to decide whether to suspend the deportation of an alien. Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 924, 100 L.Ed. 1242 (1956). It has been said that the ultimate decision whether to suspend deportation The Attorney General's power under the Act has been delegated to the Commissioner of Immigration and Naturalization who in turn has redelegated the authority to specified INS personnel. 8 C.F.R. Sec. 2.1. The specific power to rule on applications for suspensions of deportation has been delegated to immigration judges, ¹ 8 C.F.R. Sec. 242.8, whose decisions are subject to review by the BIA. 8 C.F.R. Sec. 242.21. The BIA's authority similarly derives from the Attorney General. 8 C.F.R. Secs. 3.0, 3.1.

"is a matter of grace," similar to a Presidential pardon. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.1950) (L. Hand). See also, United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957). Judicial review of such a highly discretionary decision is strictly limited because the subject is uniquely within the competence and power of the political branches. See Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1477; Mathews v. Diaz, 426 U.S. at 81-82, 96 S.Ct. at 1892.

In the instant case, Mr. and Mrs. Hernandez challenge the BIA's determination under the first tier of the statute that, "in the opinion of the Attorney General," deportation would not cause "extreme hardship." The INS has stipulated that Mr. and Mrs. Hernandez have good moral character and satisfy the seven year residency requirement.

The Hernandezes' argument on appeal is twofold. First, they seek substantive review of the BIA's narrow definition of "extreme hardship." Second, they seek procedural review of the BIA's alleged failure to analyze the relevant hardship factors both individually and cumulatively. We reject both of these arguments in turn.

III.

The Supreme Court has recognized the broad discretion of the BIA to narrowly define "extreme hardship." INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). In Wang, a Korean family alleged that deportation would result in "extreme hardship" to their two American born children because neither child spoke Korean. Id. at 142, 101 S.Ct. at 1030. Although the BIA found that the...