Ramos v. I.N.S.

• Decision Date: 14 January 1983
• Docket Number: No. 81-4479,81-4479
• Citation: 695 F.2d 181
• Parties: Joaquin Marcelo Veron RAMOS and Maria Milagros Ramos, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 181

695 F.2d 181

Joaquin Marcelo Veron RAMOS and Maria Milagros Ramos, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 81-4479

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 14, 1983.

Eugenio Cazorla, Dallas, Tex., for petitioners.

Stephen M. Weglian, Jr., Lauri Steven Filppu, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

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

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is a petition for review of an order of the Board of Immigration Appeals ("the Board") denying petitioners' application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254(a)(1). The primary questions are whether the Board failed to consider the noneconomic hardship that petitioners' deportation might have on their family, especially on their two United States citizen children, and if so, whether the Board thereby failed to properly exercise its discretion. We hold that the Board's decision fails to reflect consideration of all the relevant hardship factors asserted by petitioners in reaching its decision regarding the existence of "extreme hardship." Accordingly, we remand the case to the Board for further proceedings so that the "extreme hardship" determination may be made upon a proper consideration of all the asserted hardship factors.

I.

Petitioners Joaquin and Maria Ramos are natives and citizens of the Philippines. On July 20, 1967, petitioners entered the United States at Savannah, Georgia, as nonimmigrant visitors for pleasure with permission to stay until October 20, 1967. They subsequently obtained permission to stay until April 20, 1968.

In February 1968, Mr. Ramos was hired by his present employer, the 3M National Advertising Company, to work in Chicago, Illinois. Mrs. Ramos obtained employment at a Chicago hospital as a medical technologist. While in Chicago, Mrs. Ramos gave birth to two children, Michael, who was born in May 1968, and Mark, who was born in December 1970. Because they were born in this country, both children are United States Citizens.

Petitioners lived and worked in Chicago with their two children until 1974, when 3M transferred Mr. Ramos to Dallas, Texas. Mrs. Ramos obtained employment in Dallas, again as a medical technologist. Petitioners and their children have lived in Dallas since that time. Mr. Ramos's parents, who are aliens lawfully admitted for permanent residence and partially dependent on petitioners for support, also lived with them in Dallas for a while. ¹

Because petitioners failed to leave the United States within the time authorized for their departure, ² deportation proceedings were instituted against them. Petitioners conceded deportability, and applied for discretionary relief under 8 U.S.C. Sec. 1254(a)(1). ³ Petitioners asserted that if they were deported extreme hardship would result to themselves, to their United States citizen children, and to Mr. Ramos's resident alien parents.

Following several hearings which concluded on January 26, 1977, an immigration judge, in a written decision dated November 21, 1977, rejected petitioners' claims of hardship and denied their application for suspension of deportation. Petitioners appealed to the Board, which, on March 19, 1980, remanded the case to the immigration judge, holding that:

"In view of the amount of time that has passed since the last hearing on [petitioners'] application, and the representations made on appeal concerning extreme hardship to the [petitioners'] two United States citizen children, we have concluded that the record must be remanded so that it may be updated."

On remand, the immigration judge conducted a hearing on October 21, 1980, during which he received additional evidence. He then issued a written decision, dated April 8, 1981, which tracked almost word for word his initial decision denying suspension of deportation. ⁴ In his decision, the immigration judge recited petitioners' assertions respecting the acclimation of their children to the "American way of life" and the difficulty they would undergo as a result of a change of schools. And he referred to petitioners' attempt to obtain a continuance for psychiatric evaluation of the effect a return to the Philippines might have on their children. ⁵ But the judge's only response to or evaluation of these assertions was that "the children could stay with a sister of Mr. Ramos." ⁶ The immigration judge instead concentrated almost exclusively on the economic hardship that petitioners' deportation would have on themselves and on their children:

"The mere fact that an alien's economic opportunity 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...."

Petitioners again appealed to the Board, which, by decision dated November 17, 1981, affirmed the immigration judge's order. In its discussion respecting the "extreme hardship" issue, the Board, like the immigration judge, concentrated almost entirely on the assertions of economic hardship to petitioners and to their children, though the record plainly shows that petitioners did not rely primarily upon economic factors to establish extreme hardship. ⁷ In addition, neither the immigration judge nor the Board recited or discussed the asserted hardship on Mr. Ramos's parents.

II.

To be eligible for discretionary suspension of deportation under 8 U.S.C. Sec. 1254(a)(1), an alien must show: (1) that he has been physically present in the United States for a continuous period of time not less than seven years immediately preceding an application for relief; (2) that during this period, he was and is a person of good moral character; and (3) that "in the opinion of the Attorney General," his deportation would result in "extreme hardship" to himself or to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident. An alien who meets these requirements is merely eligible for suspension of deportation, and is in no way entitled to such relief. Faddah v. INS, 580 F.2d 132, 133 (5th Cir.1978). Thus, even where all the requirements are met, suspension of deportation may be denied in the exercise of discretion. Vaughn v. INS, 643 F.2d 35, 37 (1st Cir.1981). The decision whether to suspend the deportation of an alien who satisfies the three statutory requirements is therefore discretionary, and is subject only to a most restricted judicial review. Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281 (1963).

As to an alien's eligibility for discretionary relief, the determination whether he has satisfied the first and second statutory requirements are "findings of fact," and must "be supported by reasonable, substantial, and probative evidence on the record as a whole." 8 U.S.C. Sec. 1105a(a)(4). ⁸ However, unlike the first two requirements, the third statutory requirement, that of extreme hardship, is phrased in terms of "in the opinion of the Attorney General," rather than simply in terms of the ultimate standard (extreme hardship) itself.

In INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), the Supreme Court observed with respect to the words "extreme hardship" that "the Act commits this definition in the first instance to the Attorney General and his delegates," id. at 144, 101 S.Ct. at 1031, and they "have the authority to construe 'extreme hardship' narrowly should they deem it wise to do so." Id. at 145, 101 S.Ct. at 1031. We believe that the Supreme Court's decision in Wang is inconsistent with those earlier Courts of Appeals decisions, such as Bastidas v. INS, 609 F.2d 101, 104 (3d Cir.1979), which held that determinations of no "extreme hardship" were reviewable under the conventional "substantial evidence" test of section 1105a(a)(4) to essentially the same extent as determinations of the seven continuous years of physical presence and good moral character requirements of section 1254(a)(1). Other pre-Wang Courts of Appeals decisions had indicated that review of no "extreme hardship" determinations was under a more limited "abuse of discretion" standard. See Brathwaite v. INS, 633 F.2d 657, 659-60 (2d Cir.1980) (recognizing differing standards, but not choosing between them).

Our own pre-Wang decisions, while not expressly referring to differing standards of review for "extreme hardship" determinations as contrasted to the other two requirements of eligibility for discretionary relief under section 1254(a)(1), appear to have followed an abuse of discretion approach. See Chokloikaew v. INS, 601 F.2d 216, 218 (5th Cir.1979). ⁹ In view of Wang 's language concerning the authority of the Attorney General to define "extreme hardship" and to construe it narrowly, we doubt that there remains much, if any, scope for judicial substantive review, even under an "abuse of discretion" standard, of no "extreme hardship" determinations.

We do not believe, however, that Wang foreclosed all review in this area. Wang does not question Foti, which clearly held that in a deportation proceeding denial of requested suspension of deportation under section 1254(a)(1) was judicially reviewable pursuant to section 1105a(a). At the very least, then, it would appear that judicial review remains available to ensure that an alien, denied relief under section 1254(a)(1) by reason of a no "extreme hardship" determination, has had a fair and full consideration of his claims in this regard. ¹⁰ This seems to be the trend of the post-Wang decisions of other Courts of Appeals, and we are in general agreement with this view. See, e.g., Prapavat v. INS, 638 F.2d 87 (9th Cir.1981), aff'd on rehearing, 662 F.2d 561, 562 (9th Cir.1982) (remanded to Board because it "did not consider all the factors relevant to the 'extreme hardship' determin...