Pelaez v. Immigration and Naturalization Service

• Decision Date: 22 May 1975
• Docket Number: No. 74-3197,74-3197
• Citation: 513 F.2d 303
• Parties: Cecelia PELAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 303

513 F.2d 303

Cecelia PELAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-3197.

United States Court of Appeals, Fifth Circuit.

May 22, 1975.

David A. Kattan, New Orleans, La., for petitioner.

William B. Saxbe, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Troy A. Adams, Jr., Dist. Director, Immigration & Naturalization Service, New Orleans, La., Chester J. Halicki, John L. Murphy, Government Reg. Section Criminal Division, Washington, D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service (Louisiana Case).

Before GIBSON ^*, THORNBERRY and AINSWORTH, Circuit Judges.

PER CURIAM:

Petitioner Cecelia Pelaez, a 36-year-old native and citizen of the Philippines, seeks review of the decision of the Board of Immigration Appeals dated July 24, 1974, which affirmed the denial by the immigration judge of the suspension of her deportation.

Petitioner entered the United States on November 11, 1964 as a nonimmigrant visitor for business. Her status was later changed to a nonimmigrant student which authorized her to remain here until November 17, 1968. She was ordered deported in May 1969 but two private bills pending, introduced in Congress on her behalf, continued her stay. When the bills failed of passage, she filed this application for suspension of deportation under 8 U.S.C. § 1254(a)(1).

8 U.S.C. § 1254(a)(1) reads as follows:

(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and

(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence; or

The immigration judge found that petitioner had satisfied the first two requisites of the subsection pertaining to physical presence in the United States for seven years, and that she was of good moral character, but had not shown that her deportation would result in extreme hardship, and thus had failed to establish the statutory conditions precedent to the Attorney General's exercise of discretionary relief. Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299 (1960); United States v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); 2 Gordon and Rosenfield, Immigration Law and Procedure § 7.9e (1972).

Petitioner is not married and has no family ties in the United States but has three brothers living in the Philippines, two of whom are tenant farmers and one of whom is unemployed. Though educated in this country as a computer programmer, she works as a governess earning $135 per week and holds property, cash and stock worth approximately $3,000.

She claims extreme hardship will result from deportation primarily because of the difficulty of obtaining employment and the lower standard of living in the Philippines. Additional factors urged are the impossibility of obtaining a return visa, the inability to continue the support of her brothers and the disruption of the way of life to which she has become accustomed.

Economic hardship has consistently been rejected as sufficient to compel a finding of extreme hardship. Nishikage v. Immigration and Naturalization Service, 9 Cir., 1971, 443 F.2d 904; Fong Choi Yu v. Immigration and Naturalization Service, 9 Cir., 1971, 439 F.2d 719; Yeung Ying Cheung v. Immigration and Naturalization Serv., 3 Cir., 1970, 422 F.2d 43, 46-47; Kasravi v. Immigration and Naturalization Service, 9 Cir., 1968,400 F.2d 675, 676. Petitioner, who has the burden of establishing the statutory prerequisites, has failed to carry this burden. Considering all these factors, the immigration judge found that Pelaez failed to prove extreme hardship. We agree with this finding for the reasons stated by the judge. ¹

Finally, Pelaez asserts that 8 U.S.C. § 1254(a)(1) is unconstitutional on its face and as applied because it discriminates against aliens without family ties in the United States. ² She contends that an alien with family here can base suspension of deportation on his family's hardship but an alien without family is limited to personal hardship. We find no merit in this contention. Congress has plenary power in the immigration area, particularly in determining which aliens will be admitted and the period they shall remain. Harisiades v. Shaughnessy, 342 U.S. 580, 588-591, 72 S.Ct. 512, 519-520, 96 L.Ed. 586 (1952); Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); United States v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490. Additionally, the statutory history of Section 1254(a) discloses that the suspension provision was originally enacted in 1940 solely to deal with...