Lee v. Immigration and Naturalization Service

• Decision Date: 24 March 1977
• Docket Number: No. 75-2260,75-2260
• Parties: Dong Hyung LEE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 554

550 F.2d 554

Dong Hyung LEE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 75-2260.

United States Court of Appeals Ninth Circuit.

March 24, 1977.

Jack T. Price, Los Angeles, Cal., for petitioner.

William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent.

On Petition for Review of Deportation Order of the Immigration and Naturalization Service.

Before BARNES and GOODWIN, Circuit Judges, and TAKASUGI, ^* District Judge.

GOODWIN, Circuit Judge:

Dong Hyung Lee appeals an order of the Board of Immigration Appeals which denied relief from a deportation order.

Lee, a native of Korea, entered the United States in 1965 as a visitor. The following year, he applied for permanent residence but his application was denied. In 1969, Lee was ordered to appear before a deportation hearing, but failed to do so. In 1971, Lee's wife entered the United States as a student, and in 1972 he again sought adjustment of his status. His request was again denied, and he was ordered deported. Lee did not seek voluntary departure, nor did he report for deportation. He appealed. In August 1973, Lee's wife gave birth to an American citizen. Lee bought a store and his income increased. In 1974, Lee applied for a suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), and sought to reopen his deportation proceedings. He relied upon the grounds that he had lived in this country for over seven years, was of good moral character, was the father of an American-born child, was the proprietor of his own business, and that deportation would create extreme hardship to his family.

In March 1975 Lee's motion to reopen deportation proceedings was denied. In April 1975, Lee filed another motion to reopen deportation, and in May 1975 this motion was denied. In June 1975, Lee filed this petition for review to this court under Section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a.

This court's review is limited to the question whether the Board has abused its discretion. Hun Chak Sun v. Immigration and Naturalization Service, 415 F.2d 791 (9th Cir. 1969), cert. denied, 397 U.S. 908, 90 S.Ct. 905, 25 L.Ed.2d 89 (1970); Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 346 (9th Cir. 1969). See also, Siu Fung Luk v. Rosenberg, 409 F.2d 555 (9th Cir.), cert. dismissed, 396 U.S. 801, 89 S.Ct. 2151, 24 L.Ed.2d 58 (1969).

An alien illegally present in the United States cannot gain a favored status merely by the birth of his citizen child. Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222, 1224 (5th Cir. 1975). The possibility of inconvenience to the citizen child is not a hardship of the degree contemplated by the statutory language of extreme hardship. Mendez v. Major, 340 F.2d 128 (8th Cir. 1965). In view of the relative ease with which aliens can enter this country as students or visitors and then delay their departure long enough to produce citizen children, the proposition urged by this petitioner would virtually do away with the limitations imposed by Congress upon immigration.

Here, the alien mother was brought into the country as a student some three years after Lee knew of his impending deportation. This does not appear to be the kind of fact situation that should cause the Immigration Service to exercise its discretion in the manner demanded by the petitioner, much less one that requires us to treat the action as an abuse of discretion.

The case is not substantially improved by the claim of economic hardship. Financial loss is not synonymous with extreme hardship. See Blanco-Dominquez v. Immigration and Naturalization Service, 528 F.2d 382, 383 (9th Cir. 1975); Nishikage v. Immigration and Naturalization Service, 443 F.2d 904 (9th Cir. 1971); Llacer v. Immigration and Naturalization Service, 388 F.2d 681 (9th Cir. 1968). Economic disadvantage has been consistently rejected by this court as a basis to compel a finding of extreme hardship. Fong Choi Yu v. Immigration and Naturalization Service, 439 F.2d 719 (9th Cir. 1971).

Virtually all of Lee's acquisitions of property and investment in his business enterprise occurred after he was under valid deportation orders. To reward him now would elevate thrift and industry above immigration policy, and would provide a blueprint for any like-minded alien to enter the country as a visitor and stay indefinitely. Such a result would also be an affront to those overseas aliens who are abiding by the law and waiting with whatever patience they can muster for an opportunity to enter legally as a permanent resident. We find no abuse of discretion.

The order of the Board is affirmed.

TAKASUGI, District Judge, dissenting:

I respectfully dissent.

Petitioner seeks review of an order of the Board of Immigration Appeals (herein "Board") denying his motion to reopen deportation proceedings. Said motion was filed for the specific purpose of securing an adjustment of his status for permanent residence under 8 U.S.C. § 1254(a)(1). ¹

The pertinent provisions of section 1254(a)(1) deal with the issue of whether the deportation of petitioner would result in extreme hardship to him, to his wife or to his child, a citizen of the United States.

The Board determined that petitioner's motion to reopen proceedings rested solely upon the facts that he has met the seven years physical presence requirement and is the father of a United States Citizen.

Standard for Review

In deciding any cases under 8 U.S.C. § 1254(a)(1), the Board is required to make two separate and distinct determinations. Initially, it must decide petitioner's eligibility under the criteria of § 1254(a)(1). Once decided in the affirmative, the Board is then called upon to exercise its discretion as to whether such petitioner is entitled to relief. Gordon and Rosenfield, § 8.14, pp. 8-94 and 95. The Supreme Court noted in Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281,

"In the instant case the special inquiry officer not only found that petitioner failed to meet the eligibility requirements for suspension of deportation, since no hardship would result from his deportation, but further indicated that, even had the hardship requirement been met, relief would have been denied as a discretionary matter. Since a special inquiry officer cannot exercise his discretion to suspend deportation until he finds the alien statutorily eligible for suspension, a finding of eligibility and an exercise of (or refusal to exercise) discretion may properly be considered as distinct and separate matters." 375 U.S. at 228-229, n. 15, 84 S.Ct. at 313-314, 11 L.Ed.2d at 290.

In reviewing motions to reopen, many cases have held that the appellate court is limited to determining whether the Board abused its discretion. Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 489, n. 3 (9th Cir. 1975); Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 346 (9th Cir. 1969). This standard is correct for the Board's ultimate discretionary decision. However, the standard in reviewing the initial issue of eligibility appears to be the substantial evidence test (8 U.S.C. § 1105a(4)) as noted in Foti, supra, 375 U.S. at 228, 84 S.Ct. 306.

Facts

In May, 1965, petitioner, a native of Korea, was admitted to the United States as a professional musician under Sec. 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i). In 1966 his application for permanent resident status was denied. In 1969 he was summoned to a deportation hearing for having remained longer than permitted. Petitioner failed to appear. For a year and eight months after his entry he played with a musical troupe and performed various and sundry jobs. Next, he was employed as a teacher at the University of Washington and then as a glass worker, stacking and checking bottles. On June 29, 1971, his spouse entered the United States as a student. In that year, he purchased the first of two wig stores. One such store was burned in a fire and the other was damaged during the rioting in East Los Angeles. Thereafter, petitioner obtained employment as a retail clerk at a "7-11" Store for $800.00 per month.

In 1972 he again sought adjustment of his status. A hearing was held and petitioner was found to be deportable and deportation was ordered. Petitioner appealed to the Board of Immigration Appeals. The appeal was denied by the Board.

In August, 1973, a child was born to petitioner and his spouse. This birth occurred after the original deportation order.

Ultimately, petitioner purchased a "7-11" Store in Montebello, California. Between February and September, 1974, petitioner averaged earnings of some $3,000 monthly and had gross earnings of some $215,000 for that year.

In September, 1974, petitioner applied for a suspension of deportation under Section 244(a)(1) Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), and sought to reopen his deportation proceedings on the grounds he had lived in this country for over seven years, was of good moral character, was the father of an American-born child, was a proprietor of his own business and that deportation would create extreme hardship to his family. In March, 1975, petitioner's motion to reopen deportation proceedings was denied on the basis that the petitioner did not establish a prima facie case. In April, 1975, another motion to reopen deportation was filed with respondent. In May, 1976, said motion was denied. In June, 1975, petitioner filed the instant petition for review to this court under Section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a to reopen proceedings.

Discussion

In Yong v. Immigration and Naturalization Service, 459 F.2d 1004 (9th Cir. 1972) the court reversed an order denying petitioner's application for suspension of deportation pursuant to 8 U.S.C. § 1254 on the grounds that the...