Osuchukwu v. I.N.S.

• Decision Date: 26 October 1984
• Docket Number: No. 83-4686,83-4686
• Parties: Fidelis OSUCHUKWU, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1136

744 F.2d 1136

Fidelis OSUCHUKWU, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 83-4686.

United States Court of Appeals, Fifth Circuit.

Oct. 26, 1984.

Harry J. Joe, Steve Ladik, Dallas, Tex., for petitioner.

Robert L. Bombaugh, Director, Civil Div., Hillary B. Burchuk, Charles E. Hamilton, III, Joseph F. Ciolino, Civil Div., Justice Dept., Washington, D.C., for respondent.

David H. Lambert, Dist. Dir., I.N.S., New Orleans, La., William J. Chambers, Dist. Dir., I.N.S., Dallas, Tex., for other interested parties.

Petition for Review of an Order of the Immigration & Naturalization Service.

Before RUBIN, REAVLEY, and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The sluggishness of immigration and judicial procedures makes it inevitable that changes in the lives of the people affected will occur while these processes move slowly along. An alien who was ordered deported four years ago when his citizen wife was expecting their first child seeks to avoid return to his native country on the ground that deportation would cause extreme hardship to his wife, the child, and to another child whom his wife was expecting by the time we heard the appeal. Finding that the immigrant's wife and son would not suffer extreme hardship on the basis of the record made in 1980, the Board of Immigration Appeals denied his request for relief from deportation. Limited by the considerable authority granted to the Attorney General, which permits us to review such actions only for abuse of discretion, and by the record, we refuse to reverse the Board's finding, but express no opinion concerning the possible reopening of the record in response to a motion based on the existence of evidence not then available.

I.

Fidelis Osuchukwu entered the United States in 1975 as a student. On the basis of his marriage in 1976 to Pamela Ladd, a citizen, he was accorded lawful permanent resident status in 1977. In 1979, Osuchukwu was convicted of theft in a Texas court and sentenced to two years imprisonment. He was released from confinement under the state sentence in May, 1980. In August, 1980, he was convicted by a federal court of making a false statement in an application for a checking account and of mail fraud. The imposition of sentence was suspended, and he was placed on probation for three years. He was discharged from probation, however, in July, 1981. Shortly after his federal conviction, Osuchukwu was ordered to show cause why he should not be deported under Sec. 241(a)(4) of the Immigration and Naturalization Act because he had been convicted of a crime involving moral turpitude. ¹

The deportation hearing was commenced on November 18, 1979, and then recessed to permit Osuchukwu to retain counsel. It was resumed more than a year later, on December 12, 1980, with Osuchukwu represented by West Texas Legal Services. Even though Osuchukwu's lawyer questioned whether the two crimes arose out of separate schemes of criminal misconduct so as to satisfy the requirements of Sec. 241(a)(4), ² she ultimately admitted the two crimes and conceded deportability. She then sought a waiver of inadmissibility on the basis of extreme hardship under Sec. 212(h) of the Act. ³ Immediately after the hearing, the Immigration Judge, on the basis of these admissions, found Osuchukwu deportable and denied the waiver of inadmissibility.

Osuchukwu, then represented by retained counsel, Wallace Heitmann, appealed to the Board of Immigration Appeals, arguing that the Immigration Judge had failed to give proper weight to the extreme hardship that would befall his citizen wife and child and by failing to consider all relevant factors in favor of his good character and rehabilitation. Osuchukwu also alleged that his wife, at the time of appeal, was nearing the end of a new pregnancy. ⁴ The Board of Immigration Appeals' denial of the appeal was not rendered until March 7, 1983, but the record shows no reason for the delay. ⁵

The Board found that deportation would not cause extreme hardship to Osuchukwu's wife and child: "We do not find that this wife, who is a native born citizen, fluent in English and apparently healthy, will be unable to support herself and her child." In response to the argument relating to extreme emotional hardship, the Board stated, "We believe that they [his wife's immediate family] may assist her and the child emotionally and otherwise, upon the Respondent's departure from the United States." The Board, therefore, found it unnecessary to reach the issue whether the waiver was contrary to national welfare, safety, or security, the second factor to be considered for a Sec. 212(h) waiver.

Represented by yet another lawyer, Osuchukwu filed a motion to reconsider with the Board and attached xerox copies of articles discussing the psychological effect on young boys of separation from their fathers. The motion represents that Mrs. Osuchukwu is working for a cleaning service. It does not recite her earnings but refers to a Bureau of Labor Statistics Study made in December 1981 showing that the average wage of a woman thus employed is $3.86 an hour and data concerning the cost of child care. No representation is made concerning Osuchukwu's earnings, his contributions to his family, personal or financial, or why Mrs. Osuchukwu is working. In his argument to us Osuchukwu recited that his wife was expecting a second child, who was due in August, 1984. We are not informed of the result of the 1972 pregnancy.

The motion to reconsider offered no other new evidence but relied upon the Board's alleged "failure to meaningfully address and reach a reasoned conclusion" on Osuchukwu's specific assertions of extreme hardship to his wife and child. Restating its previous conclusions in light of the evidence presented, the Board denied the motion on October 27, 1983. On appeal, Osuchukwu contends that the Board abused its discretion in denying his request for relief from deportation under Sec. 212(h) by failing to meaningfully consider all of the issues raised by him and by applying an incorrect legal standard in its determination of extreme hardship. While Osuchukwu does not contend that we should apply any standard other than "abuse of discretion," the applicability of that standard is not self evident and its scope is not clearly defined. We, therefore, first consider those matters.

II.

Our review of the Board's denial of the motion to reconsider and its determination that the hardship to Osuchukwu's spouse and child does not satisfy 8 U.S.C. Sec. 1182(h) is limited by the broad discretion accorded to the Attorney General and the Board of Immigration Appeals as his delegate. Under Sec. 212(h), the Attorney General, in his discretion, may grant a waiver of inadmissibility if he determines that (1) deportation would result in extreme hardship to the alien's citizen spouse or child, and (2) the waiver would not be contrary to the national welfare, safety, or security of the United States. ⁶ Although Sec. 212(h) speaks to the admission of an alien, the Board has determined that it is also available to an alien present in the United States who applies for adjustment of status under Sec. 245 of the Act. ⁷

Like Sec. 244(a)(1), ⁸ which authorizes suspension of deportation, Sec. 212(h) authorizes the Attorney General, in his discretion, to grant relief from deportation upon a showing of "extreme hardship." The latter section looks only to the hardship to the citizen spouse and child, whereas the former also looks to the hardship to the alien. ⁹ In interpreting Sec. 244(a)(1), the Supreme Court has considered the scope of the discretion given the Attorney General and his delegates ¹⁰ to define the term "extreme hardship" and to determine when that plight exists. We have no reason to define the scope of discretion under Sec. 212(h) differently.

In its discussion of "extreme hardship" in INS v. Wang, ¹¹ the Court stated, "These words are not self-explanatory, and reasonable men could easily differ as to their construction." But it continued, "[T]he Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute." ¹²

The Board had "considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of Sec. 244." ¹³ While the Court noted that the Board also found no serious economic detriment, it found that "in making these determinations the Board was acting within its authority." ¹⁴ The Attorney General and its delegates, it said, "have the authority to construe 'extreme hardship' narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the 'extreme hardship' language, which itself indicates the exceptional nature of the suspension remedy." ¹⁵ Our power to review the hardship determination under Sec. 244(a), therefore, is straitened by the statute. We are to determine only whether the agency has abused the discretion imparted to it by Congress. ¹⁶

We recently described this review as "most restricted." ¹⁷ This standard accords greater freedom from judicial review to the agency than is granted by the seventh amendment to the verdict of a jury, whose conduct we may overturn if not supported by substantial evidence, ¹⁸ and far greater latitude for unreviewable judgment than is accorded to the fact findings of a trial judge, whose determination may not be overturned if not clearly erroneous. ¹⁹

To recite that we are not to substitute our judgment for the Board's is a bromide. The standard sets the level of conviction that we must feel before deciding that the Board was wrong and we are right. Although we may review the denial of an extreme hardship finding "procedurally" to ensure that the alien has received full and fair consideration of all...