Ordonez v. I.N.S., 96-70904

• Decision Date: 02 March 1998
• Docket Number: No. 96-70904,96-70904
• Citation: 137 F.3d 1120
• Parties: 98 Cal. Daily Op. Serv. 1442, 98 Daily Journal D.A.R. 1991 Carlos Humberto ORDONEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1120

137 F.3d 1120

98 Cal. Daily Op. Serv. 1442, 98 Daily Journal

D.A.R. 1991

Carlos Humberto ORDONEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-70904.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1998.

Decided March 2, 1998.

Amos Lawrence, San Francisco, California, for petitioner.

Kristal A. Marlow, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A73-910-164.

Before: FLETCHER, MAGILL, ^* and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Petitioner Carlos Humberto Ordonez seeks review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"), which denied his application for suspension of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). Because we find that the BIA abused its discretion by failing to consider all relevant factors in its "extreme hardship" analysis, we grant the petition for review, vacate the order and remand for further proceedings consistent with this opinion.

I.

Ordonez, a forty-three-year-old native citizen of Guatemala, entered the United States without inspection on December 5, 1987. His wife and three children continue to live in Guatemala, where Ordonez owns a house, a car, and has about $1,000 worth of savings. Since arriving in the United States, Ordonez has lived in the San Francisco area, working odd jobs such as construction, roofing, and gardening. He sends approximately $350 per month to his family in Guatemala.

In 1981, Ordonez resigned from his position with the Guatemalan police. In 1984, a military official stationed in Ordonez's hometown of Zacapa attacked him with a knife. Ordonez then fled to Esquitla, 250 kilometers away, where in 1987 that town's chief of police, together with several bodyguards, attempted to abduct him. Due to the crowd present at the scene of the incident, Ordonez was able to escape. He subsequently decided to flee the country and came to the United States.

In 1989, Ordonez's brother-in-law was assassinated by members of the Guatemalan army near the Honduran border. Ordonez's original Zacapa attacker has since been promoted to the chief of the military in that city.

Because he entered the United States without inspection, in May 1995 Ordonez was issued an order to show cause why he should not be deported. He admitted the order's allegations at a preliminary hearing in June, yet indicated his intention to apply for asylum, suspension of deportation, and, alternatively, voluntary departure. At a later hearing before an immigration judge ("IJ"), Ordonez withdrew his asylum application for reasons not clear from the record. Instead, he relied solely on his application for suspension of deportation.

At this second hearing, Ordonez described a Guatemalan practice of killing former police officers. He explained that "the system" in Guatemala dictated that when one "resigns working at the police department, they try to find a way to kill you." Ordonez believed that the 1984 knife attack in Zacapa, the 1987 abduction attempt in Esquitla, and his brother-in-law's murder all evidenced an attempt to murder him because of his resignation from the police force.

The IJ found that while Ordonez had met the residency requirements for suspension of deportation, his failure to file any income tax returns, taken together with a 1988 conviction for spousal abuse, precluded him from meeting the "good moral character" requirement. Additionally, the IJ concluded that Ordonez had not met his burden of showing that "extreme hardship" would result from the deportation. The IJ therefore denied the application. While concluding that Ordonez did subjectively fear for his own safety upon his return to Guatemala, the IJ stated, "I have absolutely no objective evidence and I find that I cannot support an objective finding of persecution against him on the basis that he resigned.... Something is wrong, but I don't know what it is, so I cannot make the objective finding and therefore, I cannot find that there is extreme hardship in this case."

The BIA affirmed the IJ's conclusion and dismissed Ordonez's appeal. After clarifying and correcting the IJ's extreme hardship analysis on a number of factors, the BIA agreed with the IJ's conclusion that Ordonez had failed to establish extreme hardship. After noting that he had lived in the United States less than two years more than the statutory minimum, that he arrived here at age thirty-three, that his family is in Guatemala, and that his work history is sporadic, the BIA specifically addressed Ordonez's fear of persecution. Stating that the past attacks could have been due to personal animosities or any number of other reasons not evident in the record, it concluded that Ordonez "has not shown that any attacks he might encounter upon return to Guatemala would be related to the political conditions there." Accordingly, the BIA affirmed the IJ's dismissal of Ordonez's suspension application. This timely petition for review followed.

II.

The BIA's decision to deny an application for suspension of deportation is reviewed for an abuse of discretion. Astrero v. INS, 104 F.3d 264, 267 (9th Cir.1996); but see Hernandez-Luis v. INS, 869 F.2d 496 (9th Cir.1989) (reviewing the BIA's determination of statutory ineligibility due to the failure to establish continuous seven year residency for substantial evidence). This discretion is not abused when the BIA has decided the case on all of the relevant factors before it. Astrero, 104 F.3d at 267 (citing Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981)). The BIA construes the extreme hardship requirement narrowly, and we will not disturb the BIA's conclusion unless: (1) it has abused its discretion by failing to consider all relevant factors bearing on extreme hardship; or (2) it has not articulated reasons for denying the application that are supported by the record. Id.

III.

Although Ordonez applied only for suspension of deportation, the crux of his argument is that he has been and will be persecuted in Guatemala on account of his resignation from the Guatemalan police. Persecution claims are ordinarily considered in the context of an asylum application, rather than one for suspension of deportation. Nevertheless, the only law applicable to this case is that which is relevant to the remedy which Ordonez seeks: suspension of deportation.

Suspension of deportation is an "exceptional" remedy, only available for "unique extenuating circumstances." Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir.1986). In order to qualify for suspension of deportation, an alien must show three things: (1) physical presence in the United States for a continuous period of at least seven years; (2) good moral character for the duration of that period; and (3) the deportation order would result in extreme hardship to the alien or a spouse, parent, or child who is a citizen or lawful permanent resident of the United States. 8 U.S.C. § 1254(a)(1)(1987)(amended 1996). ¹ The alien carries the burden of proving both that he has met the statutory requirements and that he merits a favorable exercise of discretion. Ramirez-Durazo, 794 F.2d at...