Luna v. I.N.S.

• Decision Date: 16 June 1983
• Docket Number: 82-1863,Nos. 82-1311,s. 82-1311
• Citation: Luna v. I.N.S., 709 F.2d 126 (1st Cir. 1983)
• Parties: Emilio LUNA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 126

709 F.2d 126

Emilio LUNA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 82-1311, 82-1863.

United States Court of Appeals First Circuit.

Argued April 7, 1983.

Decided June 16, 1983.

Harvey Kaplan, Boston, Mass., with whom Eliza Klein, and Law Offices of Harvey Kaplan, Boston, Mass., were on brief, for petitioner.

Thomas W. Hussey, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Civ. Div., Charles E. Hamilton, III, Attorney, Margaret J. Perry, Attorney, Lauri Steven Filppu, Attorney, General Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D.C., were on brief, for respondent.

Before HAYNSWORTH, ^* Senior Circuit Judge, COFFIN and BREYER, Circuit Judges.

BREYER, Circuit Judge.

We here review a decision of the Immigration and Naturalization Service (INS) Board of Immigration Appeals not to reopen a deportation proceeding--a proceeding that in this case led to an order for the involuntary deportation of petitioner Emilio Luna. Because we conclude that the INS did not take proper account of various legally relevant factors, and in light of a special supervening circumstance (namely, the birth of a new child), we believe a reopening is required.

Luna entered the United States from the Dominican Republic in 1971 as an alien in transit without a visa. See 8 U.S.C. Sec. 1101(a)(15)(C). He overstayed his brief welcome; when he turned himself in to the INS, it ordered him deported. Although he agreed to leave "voluntarily", see id. at Sec. 1254(e), he did not leave. Subsequently his wife and family arrived, became lawful, permanent United States residents, and petitioned for a visa for Luna. See id. at Sec. 1153(a)(2). The prior deportation order, however, prevents Luna from regularizing his status, for under the law, once an involuntary deportee leaves the United States (which Luna must do to obtain his visa), he cannot return for five years. See id. at Sec. 1182(a)(17). Consequently, Luna asked the INS to reopen his proceedings: (1) to allow him to leave voluntarily, Case No. 82-1311, and (2) to suspend his deportation, Case No. 82-1863. The INS, in separate orders, denied each request.

Technically, we have before us two appeals--one from each separate denial--but, in light of our decision, we need reverse only the INS's refusal to reopen to consider suspending deportation. If Luna, on remand, succeeds in convincing the INS to suspend his deportation, he has achieved his objective. In fact, he can then leave voluntarily and pick up his visa in Canada. If Luna fails to convince the INS to "suspend," however, it is most unlikely he could convince it to allow "voluntary departure," for as far as is relevant here the legal standards for "voluntary departure" are less favorable to Luna than those for "suspension of deportation." Compare 8 U.S.C. Sec. 1254(e) (voluntary departure) with id. at Sec. 1254(a)(1) (suspension of deportation). See Lau, Wun Man v. INS, 426 F.2d 689, 690 (3d Cir.1970) (per curiam); In re Onyedibia, 15 I. & N. Dec. 37, 38 (B.I.A.1974).

To obtain a reopening of his proceedings to allow him to apply for suspension of deportation, Luna must at least establish "prima facie," see INS v. Jong Ha Wang, 450 U.S. 139, 141, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (per curiam ), that he falls within the terms of 8 U.S.C. Sec. 1254(a)(1), which allows suspension when:

deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse ... or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence....

The agency itself has considerable discretion to decide what constitutes "extreme hardship," see INS v. Jong Ha Wang, 450 U.S. at 144-45, 101 S.Ct. at 1031-1032; Antoine-Dorcelli v. INS, 703 F.2d 19, 21 (1st Cir.1983), and to decide whether or not to reopen, see INS v. Jong Ha Wang, 450 U.S. at 143 n. 5, 101 S.Ct. at 1030 n. 5; Chae Kim Ro v. INS, 670 F.2d 114, 116 (9th Cir.1982). Nonetheless, we believe that Luna has made out enough of a case of extreme hardship to require a reopening of the proceedings and full agency consideration of his application for suspension of deportation.

We do not see how the Board could reasonably determine that Luna had not even made a "prima facie" case of extreme hardship to his lawfully resident family. The Board based its conclusion upon a combination of three factors: (1) the children would suffer "no greater hardship" from separation than "they experienced" previously when Luna was in the United States and they were in the Dominican Republic; (2) the children had "only lived in the United States a short period and should have no trouble readjusting to life in their native country;" and (3) "there has been no showing" that Luna's wife "could not receive adequate medical care" for her medical problems in the Dominican Republic. These three reasons, in combination, might constitute sufficient grounds for a denial of suspension after a hearing. But, without a hearing, how can the Board know what "hardship" the children previously experienced? See Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981) ("separation from family alone may establish extreme hardship"), quoted with approval in Antoine-Dorcelli v. INS, 703 F.2d at 21. How does the Board know what attachments the children have formed after living in the United States for four years from ages 12 to 16, 10 to 14, 8 to 12, and 7 to 11? And, without a hearing, how can it dismiss so easily the fairly serious claims about Luna's wife's illness? Moreover, what of a factor the Board does not mention--the nonmedical hardship to Mrs. Luna. She, a lawful resident, apparently must choose between staying with one or both of her parents in the United States and leaving with her husband. Aside from, and in addition to, the physical hardship of moving, is not the status of the Luna family as "permanent residents" (which the statute equates with that of "citizens") entitled to some weight in the balance? After all, the Supreme Court has spoken of citizenship as a "most precious right." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159, 83 S.Ct. 554, 562, 9 L.Ed.2d 644 (1963). And, the fact that the American citizenship of a newborn child does not automatically allow its father to stay in America, INS v. Jong Ha Wang, supra; Vaughn v. INS, 643 F.2d 35, 38 (1st Cir.1981); Mamanee v. INS, 566 F.2d 1103, 1106 (9th Cir.1977); Davidson v. INS, 558 F.2d 1361, 1362-63 (9th Cir.1977), does not mean that the special privileges and attachments surrounding a lawful right to stay in this country count for nothing. Finally, what of Luna's claim of economic hardship to his family? The Board simply says that "economic hardship alone is not sufficient to warrant reopening," but economic hardship "is still a fact to consider." Mejia-Carrillo v. INS, 656 F.2d at 522; see Santana-Figueroa v. INS, 644 F.2d 1354, 1357-58 (9th Cir.1981).

Like the Ninth Circuit (in a different but related context), we believe it "most difficult to discern" the extent of the hardship "without a hearing." Urbano de Malaluan v. INS, 577 F.2d 589, 594 (9th Cir.1978). See also Villena v. INS, ...