Hernandez-Patino v. I.N.S.

• Decision Date: 11 December 1987
• Docket Number: No. 86-1146,P,HERNANDEZ-PATIN,86-1146
• Citation: 831 F.2d 750
• Parties: J. Carmenetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 750

831 F.2d 750

J. Carmen HERNANDEZ-PATINO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-1146.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1986.

Decided Oct. 6, 1987.

As Amended Dec. 11, 1987.

Susan R. Gzesh, Alexander, Fennerty & Fujimoto, Chicago, Ill., for petitioner.

Alison R. Drucker, Office of Immigration Litigation Civil Div., Dept. of Justice, Washington, D.C., for respondent.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Petitioner J. Carmen Hernandez-Patino seeks review of the decision of the Board of Immigration Appeals (BIA) denying his application for suspension of deportation. The BIA affirmed the decision of the immigration judge, finding both a lack of "extreme hardship" were Hernandez-Patino to be deported to Mexico, and, contrary to the immigration judge's conclusion, a lack of continuous physical presence in the United States for a period of seven years. This petition for review contests both findings of the BIA. This Court has jurisdiction under section 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a). See Marquez-Medina v. INS, 765 F.2d 673 (7th Cir.1985). We affirm the order of the BIA and dismiss the petition. ¹

I

Hernandez-Patino is a thirty-nine year old native and citizen of Mexico who migrated to the United States either in 1977 or in 1978. He entered the United States without inspection by an immigration officer, leaving his wife and children in Mexico. Since entering the country, he has worked as a cook in an Illinois restaurant, earning up to $200 per week. In 1980, Hernandez-Patino's wife and two of four Mexican-born children entered the United States to reunite with the petitioner. Since then, the family added three United States-born citizen children, ages four years, three years and eleven months, but the two oldest native Mexican children remain in Mexico.

In July 1983, the government charged Hernandez-Patino with deportability for entering the country without inspection by an immigration officer. 8 U.S.C. Sec. 1251(a)(2). He conceded deportability and at the subsequent deportation hearing the immigration judge denied an application to suspend deportation. The BIA denied Hernandez-Patino's appeal, sustaining the immigration judge's finding that the petitioner and his U.S. citizen children would not suffer "extreme hardship" were petitioner to be deported to Mexico, but reversing the judge's finding that petitioner had fulfilled the statutory requirement of continuous physical presence in the United States for a period of seven years. Hernandez-Patino petitions for review of the BIA decision.

II

Section 244 of the Immigration and Nationality Act, as amended, 8 U.S.C. Sec. 1254(a), accords the Attorney General discretion to suspend the deportation of an otherwise deportable alien if the alien has been present in the United States for a continuous period of at least seven years, is of good moral character and demonstrates that deportation would result in extreme hardship to the alien, or the alien's "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). Even if these prerequisites are satisfied, however, it remains in the discretion of the Attorney General to decide whether to suspend deportation. INS v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (1985). The Attorney General, as authorized by Congress, 8 U.S.C. Sec. 1103, has delegated the authority and discretion to suspend deportation to special inquiry officers, or immigration judges, whose decisions are subject to review by the BIA. 8 CFR Secs. 242.8, 242.21 (1985).

The burden is on the alien to demonstrate both statutory eligibility and equities meriting favorable exercise of the discretion vested in the Attorney General. Bueno-Carrillo v. Landon, 682 F.2d 143, 145 (7th Cir.1982). The Supreme Court has recognized that if the Attorney General decides relief should be denied as a matter of discretion, the statutory eligibility requirements need not be addressed. Rios-Pineda, 105 S.Ct. at 2102. Here, however, the application for suspension of deportation was denied for failure to satisfy statutory eligibility requirements, and thus, our role is different from that of this Court in Achacoso-Sanchez v. INS, 779 F.2d 1260 (7th Cir.1985), which reviewed a BIA decision made on purely discretionary grounds. Framing his petition accordingly, Hernandez-Patino contends the BIA decision finding a lack of continuous presence for seven years was not supported by substantial evidence and the decision finding a lack of extreme hardship was an abuse of discretion. This Court need only address the extreme hardship issue to affirm the decision of the BIA and dismiss the petition.

III

As a preliminary matter, we note that rules and constitutional constraints do exist and that review of the BIA's consideration of the extreme hardship issue is by the abuse of discretion standard. This Court has said that an abuse of discretion arises when a decision

was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.

Achacoso-Sanchez, 779 F.2d at 1265. A sudden change in the rules the BIA uses constitutes an "unexplained departure," Achacoso-Sanchez, 779 F.2d at 1266, and "[a]ction on the basis of a falsehood is action 'without a rational explanation.' " 779 F.2d at 1266. The BIA "must consider all relevant factors in making its determination," Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.1982), and "in the aggregate, not in isolation." Bueno-Carrillo, 682 F.2d at 146 n. 3.

As this Court has declared, "[t]he scope of 'extreme hardship' is not self-explanatory," Bueno-Carrillo, 682 F.2d at 145, although the inclination is to construe the words "narrowly." 682 F.2d at 145 (citing INS v. Jong Ha Wang, 450 U.S. 139, 144, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981)). The present suspension of deportation provision is the product of nearly fifty years of "modern" legislation, before which no authority existed for doing anything but deporting an illegal alien. See INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Legislation in 1940 authorized suspension of deportation upon a showing of "serious economic detriment." Viewing this standard to be too lenient, framers of the 1952 Act restricted the availability of suspension only to a person whose deportation would, in the opinion of the Attorney General, result in "exceptional and extremely unusual hardship." In 1962, the statute was again amended, authorizing suspension upon a showing of "extreme hardship." However, unlike the 1952 revision, the present language was substituted sans clarification, without any expressed intention of either restricting or loosening the remedy.

Petitioner cites this Court's footnote in Bueno-Carrillo, hoping to glean some support for his argument that in the 1962 amendment Congress intended to eradicate the notion of "unique" hardship from the hardship requirement. The hardship need be "extreme" but not "significantly different" or "unusual" according to the petitioner and, therefore, less weight need be accorded comparable deportation cases with similar facts but unfavorable results. In Bueno-Carrillo we noted:

Under the statutory predecessor of Sec. 244, suspension of deportation was to be granted where the alien was able to demonstrate "exceptional and extremely unusual hardship" to himself or his spouse, parent, or child who was a citizen or a lawful permanent resident alien. Immigration and Nationality Act of 1952, Sec. 244(a)(1), Pub.L. 82-414, 66 Stat. 214. The relief was intended to be limited to situations where the hardship would be unusual and where deportation would be unconscionable. S.Rep. No. 1137, 82d Cong., 2d Sess. 25 (1952). In 1962 the requirement of "exceptional and extremely unusual hardship" was amended to the current requirement of "extreme hardship." Act of Oct. 24, 1962, Pub.L. No. 87-885, Sec. 4, 76 Stat. 1248.

682 F.2d at 145 n. 1.

The Supreme Court, likewise, has taken note of the evolving suspension provision. INS v. Phinpathya, 464 U.S. 183, 191 n. 9, 104 S.Ct. 584, 590 n. 9, 78 L.Ed.2d 401 (1984). But nowhere do we find concrete support for the proposition that the amendment of "exceptional and extremely unusual" to merely "extreme" hardship entails a broadening of the remedy, much less a departure from norms established by the BIA and approved by the courts. These norms require comparisons of like applications for relief. It is through this means the BIA avoids reaching arbitrary results. Besides, it is not clear how, if it is supposed that the petitioner is not required to show "unique" hardship, the BIA is then precluded from considering relative claims. We need not now gratuitously extract from ambiguity a construction not warranted by the language or legislative history of the statute.

The better view may be to accept the fact that Congress, in refusing to define "extreme" hardship fully, avoided the substantive policy decision and has deferred to agency expertise. Given the power to define extreme hardship, the BIA need merely follow established procedures, support conclusions with evidence and articulate reasons for its decision. See Hernandez-Cordero v. INS, 819 F.2d 558 (5th Cir.1987).

When confronted with ambiguous legislation, prudential considerations alone should cause some hesitation for courts in these circumstances, as the Supreme Court has remarked:

While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices--resolving the competing interests which Congress itself either inadvertently...