Matter of Kim
| Decision Date | 22 August 1974 |
| Docket Number | Interim Decision Number 2318,A-14516808,A-14409745 |
| Citation | 15 I&N Dec. 88 |
| Parties | MATTER OF KIM In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated April 27, 1973, the immigration judge found the respondents deportable as charged, and granted their applications for suspension of deportation. The Service has appealed from that decision. The appeal will be sustained, and the record will be remanded to the immigration judge.
At the hearing, the respondents conceded deportability and applied for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act. Neither of the respondents is within any of the categories listed in section 244(a)(2) of the Act, each respondent is a person of good moral character, and each respondent has satisfied the seven-year physical presence requirement of section 244(a)(1). The sole issue on appeal is whether the respondents have established the "extreme hardship" which is a requisite for eligibility for suspension of deportation under section 244(a)(1).
The respondents, husband and wife, are both natives and citizens of Korea. They both entered the United States as nonimmigrant students and they both remained longer than their authorized stay. The respondents were married in 1966 and are the parents of two United States citizen children. One child is six and one half years old and the other child is three years old. The respondents claim that their deportation would result in extreme hardship to them and to their United States citizen children.
The respondents base their claim of extreme hardship to themselves on their alleged inability to find suitable employment if they returned to Korea. They also testified that if deported they would take their sons with them to Korea. They contend that this would be extreme hardship on the children because they would be deprived of the educational and economic advantages that are available to United States citizens in this country. The respondents also claim that the oldest child would suffer hardship because he has not learned to speak Korean.
The immigration judge stated that he was skeptical of the respondents' claims that they would have great difficulty in securing suitable employment in Korea. In this respect, he noted that both respondents have college educations, and that therefore they would both have more opportunities than the average person in Korea. Moreover, the mere fact that an alien's economic opportunities in a foreign country may be somewhat less than they are in the United States is not, by itself, sufficient to establish the "extreme hardship" required for suspension of deportation under section 244(a)(1) of the Act. Matter of Kojoory, 12 I. & N. Dec. 215 (BIA 1967); Matter of Sangster, 11 I. & N. Dec. 309 (BIA 1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965). We agree with the immigration judge's conclusion that the respondents' deportation would not result in "extreme hardship" to them.
The United States. He concluded, after considering the rights and interests of the citizen children, that it would be "extreme hardship" on the children to take them to Korea. We agree with the Service's contention that this conclusion is erroneous.
"Extreme hardship" is not a term of fixed and inflexible content or meaning. The question of whether there is "extreme hardship" depends upon the facts and circumstances peculiar to each case. Matter of Sangster, supra; Matter of Uy, supra; Matter of Hwang, 10 I. & N. Dec. 448 (BIA 1964). In the present case, no facts have been presented to show that the respondents' citizen children would suffer "extreme hardship." The only "facts" presented in the record are several general statements by the respondents to the effect that their children would have better economic and educational opportunities in the United States than in Korea.
This case does not involve the separation of a family. As the immigration judge pointed out, the children are so young that no claim can be made that they could not adjust to living in Korea (Tr. p. 50). Nor is there any evidence that the respondents could not support and educate the children in Korea.
One of the respondents' children is preschool age, and the other is so young that the move to Korea would not be a significant disruption of his educational program. It is not apparent that the children will lack educational and economic opportunities in Korea, nor is it evident that the educational and economic situation in Korea would be such as to preclude their ever returning to the United States. Both of the respondents were able to obtain college educations in Korea, to learn English, and to come to the United States and adapt to life here; there is no reason to believe that their children will not be able to do the same.
Under the circumstances present in this case, we find that the respondents have not shown their deportation would result in "extreme hardship" to their citizen children. We note that Congress has specifically precluded minor United States citizen children from conferring preferred immigration status upon their parents under section 201(b) of the Act.
We will sustain the Service appeal and reverse the immigration judge's order granting suspension of deportation. The record will be remanded to the immigration judge for further proceedings.
ORDER: The Service appeal is sustained, and the order granting suspension of deportation is reversed.
Further order: The record is remanded to the immigration judge for whatever further proceedings may be necessary and the entry of an appropriate order.
Warren R. Torrington, Board Member, concurring:
The dissenting opinion assumes certain facts which simply are not true. Aliens have never been "compelled, on departing from the United States, to leave behind their American citizen children." [Emphasis added.] Such children are not "banished from the country of their birth" when they join their deportable parents in the parents' home country. I find particularly uncalled for the dissenter's intimation that the majority decision may be "based on some notion that there is a Congressional policy favoring the departure of United States citizen minor children of deportable aliens." There has, of course, never been, and could never have been, such a Congressional policy which would be in clear violation of the Constitution of the United States. On the other hand, the courts have consistently held that a deportation order entered against the parents of United States citizen children does not deprive the children of any Constitutional rights. Application of Amoury, 307 F.Supp. 213 (S.D.N.Y.1969); Perdido v. INS, 420 F.2d 1179 (C.A. 5, 1969); Dayao v Staley, 303 F.Supp. 16 (S.D.Tex.1969); aff'd 424 F.2d 1131 (C.A. 5, 1970); and Faustino v. INS, 302 F.Supp. 212 (S.D.N.Y.1969). This view was also shared by the writer of the present dissenting opinion in Matter of Lopez, 14 I. & N. Dec. 424 (BIA 1973), in which the Board stated, inter alia:
The statute (section 244(a)(1) of the Immigration and Nationality Act) has been on the books for many years. Congress knew what it meant. We have known what it meant. The novel theories advanced by the dissenters would now expand grants of suspension of deportation in previously unheard-of ways.
Any American-born child was born in what we believe to be the greatest country on earth. Thus, such a child may indeed be considered to suffer some hardship of one kind or another the moment it leaves with its parents for their home country, in which, by definition, conditions cannot be equal to those in the United States. That kind of hardship, however, has never been considered by Congress, the courts, or otherwise, to be the "extreme hardship" required for eligibility for relief under section 244(a)(1) of the Act.
All but one of the cases cited in the dissenting opinion have nothing to do with the provisions of section 244(a)(1) of the Immigration and Nationality Act, the only statute here involved....
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