Phinpathya v. Immigration and Naturalization Service, No. 80-7454

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CANBY, REINHARDT; REINHARDT
Citation673 F.2d 1013
Decision Date05 April 1982
Docket NumberNo. 80-7454
PartiesNiyom PHINPATHYA and Padungsri Phinpathya, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

Page 1013

673 F.2d 1013
Niyom PHINPATHYA and Padungsri Phinpathya, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent
No. 80-7454.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 6, 1981.
Decided Oct. 1, 1981.
As Amended on Denial of Rehearing and Rehearing En Banc April 5, 1982.

Page 1015

Michael D. Ullman, Beverly Hills, Cal., for petitioners.

Peter R. Osinoff, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Before CANBY, REINHARDT, Circuit Judges, and PFAELZER *, District Judge.

REINHARDT, Circuit Judge.

Petitioners appeal the denials of their applications for suspension of deportation. We reverse.

Petitioners, husband and wife, are natives and citizens of Thailand who first entered the United States as nonimmigrant students. Mr. Phinpathya entered in August, 1968 and Mrs. Phinpathya in October, 1969. They were authorized to remain in the United States until July, 1971, but they remained beyond that date without permission. In 1974, Mrs. Phinpathya visited her sick mother in Thailand for three months; she reentered the United States as the spouse of a nonimmigrant student.

Deportation proceedings commenced in January, 1977. Orders to Show Cause were issued charging petitioners with deportability under 8 U.S.C. § 1251(a)(2) as nonimmigrants who had remained beyond the time authorized. At the deportation hearing, petitioners admitted deportability and applied for suspension of deportation under 8 U.S.C. § 1254(a)(1). The immigration judge granted Mr. Phinpathya's application, but denied Mrs. Phinpathya's application. The immigration judge found Mrs. Phinpathya to be statutorily ineligible for suspension of deportation on the ground that she had not satisfied the seven years continuous physical presence requirement of section 1254(a)(1). Mrs. Phinpathya was given voluntary departure.

The immigration judge's rulings were appealed to the Board of Immigration Appeals (BIA). The BIA reversed as to Mr. Phinpathya on the ground that he failed to meet the extreme hardship requirement of section 1254(a)(1). The BIA affirmed as to Mrs. Phinpathya on the grounds that (1) she failed to meet the continuous physical presence requirement of section 1254(a)(1), and (2) she failed to meet the good moral character requirement of section 1254(a)(1).

Section 1254(a)(1) empowers the Attorney General, in his discretion, to suspend deportation. 1 To be eligible for this discretionary suspension of deportation, however, an alien must show: (1) continuous physical presence in the United States for the seven years immediately preceding his application for suspension of deportation, (2) good moral character for these seven years, and (3) extreme hardship to himself or to his spouse, parent or child who is an American citizen or a lawful permanent resident. 8 U.S.C. § 1254(a)(1). The issue in the case before us is whether the BIA erred in its determination that neither Mr. nor Mrs. Phinpathya was eligible for suspension of deportation.

Page 1016

A. Mr. Phinpathya

The BIA denied Mr. Phinpathya's application for suspension of deportation on the ground that he did not prove extreme hardship. 2 We must decide whether the BIA abused its discretion in its finding that Mr. Phinpathya would not suffer extreme hardship if deported. See INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam).

In Wang, the Supreme Court stated that the Immigration and Naturalization Act commits the determination of extreme hardship "in the first instance to the Attorney General and his delegates, and (that) construction and application of (the extreme hardship) standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute." 101 S.Ct. at 1031. We proceed in our review of the decision of the BIA, therefore, mindful of the limited nature of our function.

This is not the usual case in which the parents of an American citizen child are to be deported. Cf. Wang, 101 S.Ct. at 1031. Here, the Phinpathyas have a young daughter, Nissa, who was born in the United States and is an American citizen. What distinguishes this case, however, is the fact that Nissa has epilepsy. She regularly suffers from convulsive attacks. Nissa's epilepsy, although controlled, requires constant medical attention. She has a personal physician whom she visits weekly. She takes anti-convulsive medicine on a daily basis. Without constant medical attention and medication, Nissa's life would be endangered.

The BIA, in making its determination, considered both the hardship to Mr. Phinpathya and to Nissa. 3 It found no extreme hardship because there was insufficient evidence on the record that Nissa would receive inadequate medical care in Thailand. Following the mandate of the Supreme Court, we do not question this finding on the basis of our own view of what constitutes extreme hardship.

We do, however, question the finding relating to Nissa on a different ground. The BIA proceeded on the assumption that when evidence of a serious medical problem is presented, a finding of extreme hardship cannot be made unless there is a factual showing of inadequate medical care in the country to which the alien will be deported. It then based its hardship determination on the fact that there was no proof offered that medical care for epileptics was inadequate in Thailand.

While the absence of proof of inadequate medical care may in some cases be dispositive of extreme hardship claims based on medical problems, it is not the exclusive factor to be considered in all such cases. In this case, the BIA did not consider, for example, whether the mere removal, and uprooting, of an epileptic child, wholly apart from the question of comparative medical care, constitutes extreme hardship. The effects on an epileptic child of a long trip and of being placed in a wholly different environment are factors that, at the least, bear on a hardship determination and should have been considered by the BIA. None of the reasons asserted by the BIA reflects consideration of those factors, although there is evidence in the record relating to them.

A failure to consider factors relevant to the determination of hardship is an abuse of discretion. Santana-Figueroa v. INS, 644 F.2d 1354, 1356 n.5 (9th Cir. 1981); see Carnalla-Munoz v. INS, 627 F.2d 1004, 1006 (9th Cir. 1980). Thus, the BIA's failure to consider the factors involved in uprooting an epileptic child from her community

Page 1017

and moving her to Thailand constitutes an abuse of discretion. Accordingly, the order of the BIA as to Mr. Phinpathya is reversed and remanded for reconsideration of the question of extreme hardship.

B. Mrs. Phinpathya

The basic principles to be applied in determining whether an alien's departure is "meaningfully interruptive" of the seven years continuous presence requirement of section 1254(a)(1) were recently set forth by this court in Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979). 4 The court stated:

To effectuate the purposes underlying the continuous period requirement, and to realize Congress's desire (identified in (Rosenberg v.) Fleuti (, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963) ) ) to avoid exposing aliens to unexpected risks and unintended consequences, the Board must determine whether a particular absence during the seven-year period reduced the significance of the whole period as reflective of the hardship and unexpectedness of expulsion.

Id. at 1257. Thus, when deciding whether an absence is "meaningfully interruptive" we must be mindful of what we identified in Kamheangpatiyooth as the Congressional purpose underlying the seven years continuous presence requirement:

It was Congress's judgment that presence of that...

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33 practice notes
  • U.S. v. Nunez-Garcia, No. CV 01-4159-JWJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 20, 2003
    ...(9th Cir.1998) (the term "testimony" does not encompass all statements, or even all statements made under oath); Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981) (false written statement in an application to the INS for suspension of deportation did not constitute "false testimony"......
  • Andrianova v. INDIANA FAMILY & SOCIAL SERV., No. 29A05-0301-CV-49.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 20, 2003
    ...of appeals decisions created an exception in cases where the absence was not meaningfully interruptive. See, e.g., Phinpathya v. INS, 673 F.2d 1013 (9th Cir.1981), rev'd, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984). The Supreme Court reversed that line of cases upon its determination......
  • In re R-S-J-, Interim Decision No. 3401.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 10, 1999
    ...officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 Madan Ahluwalia, Esquire, San Francisco, California, for respondent. Richard C. Cunan, Assi......
  • In re R-S-J-, Interim Decision #3401
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 10, 1999
    ...officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 Madan Ahluwalia, Esquire, San Francisco, California, for respondent Richard C. Cunan, Assis......
  • Request a trial to view additional results
33 cases
  • U.S. v. Nunez-Garcia, No. CV 01-4159-JWJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 20, 2003
    ...Cir.1998) (the term "testimony" does not encompass all statements, or even all statements made under oath); Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981) (false written statement in an application to the INS for suspension of deportation did not constitute "false ......
  • Andrianova v. INDIANA FAMILY & SOCIAL SERV., No. 29A05-0301-CV-49.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 20, 2003
    ...of appeals decisions created an exception in cases where the absence was not meaningfully interruptive. See, e.g., Phinpathya v. INS, 673 F.2d 1013 (9th Cir.1981), rev'd, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984). The Supreme Court reversed that line of cases upon its determination......
  • In re R-S-J-, Interim Decision No. 3401.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 10, 1999
    ...officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 Madan Ahluwalia, Esquire, San Francisco, California, for respondent. Richard C. Cunan, Assi......
  • In re R-S-J-, Interim Decision #3401
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 10, 1999
    ...officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 Madan Ahluwalia, Esquire, San Francisco, California, for respondent Richard C. Cunan, Assis......
  • Request a trial to view additional results

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