Saldana v. I.N.S.
| Decision Date | 30 June 1986 |
| Docket Number | Nos. 84-7118,84-7549,s. 84-7118 |
| Citation | 793 F.2d 222 |
| Parties | Herman SALDANA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Heriberto Gonzales, Los Angeles, Cal., for petitioner.
Dzintra Janavs, Los Angeles, Cal., for respondent.
DISSENT FROM DENIAL OF COURT TO CONSIDER THIS CASE EN BANC
This case takes another large step toward limiting the Board of Immigration Appeals' (BIA) discretion in deciding motions to reopen on the ground of extreme hardship. Because I believe the opinion goes beyond our precedents and is in conflict with those of the Supreme Court, I dissent from the denial of rehearing en banc.
In this dissent, I do three things. First, I describe the faults the panel majority found with the BIA's disposition and assess those faults within the framework of our prior cases. Then, I examine the distinctions the panel majority drew between this case and the Supreme Court decisions in INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), and INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985). Finally, I discuss the methodology of the panel's majority opinion.
The opinion identifies three faults with the BIA's disposition of this motion. First, the BIA "gave no recognition to the trauma Saldana's wife, child, and step-children would experience" if the INS deported Saldana. 762 F.2d at 828. This is not true. The BIA did examine the psychiatric report, as even the panel's opinion reflects. See id. The BIA obviously concluded that the report only confirmed an ordinary common-sense conclusion: a forced separation of one spouse from the other spouse and children usually causes severe emotional anguish. Our past cases have done no more than require that the BIA address similar psychiatric reports. See, e.g., Gonzales-Batoon v. INS, 707 F.2d 399 (9th Cir.1983). The existence of such reports does not require reopening. Our cases have acknowledged that the equities arising from marriages entered into under contemplation of deportation do not require the BIA to grant a motion to reopen. See, e.g., Ahwazi v. INS, 751 F.2d 1120, 1123 (9th Cir.1985). The majority's analysis strongly suggests that this type of situation necessarily constitutes extreme hardship and that the BIA should find the existence of extreme hardship more easily. Aside from the fact that we are not empowered to act as the BIA, to make "extreme hardship" mean "substantial discomfort" is to debase the currency of our profession--the English language.
Second, the panel majority points out a mistake of fact in the BIA's opinion. The BIA described Saldana's present wife as divorced from her first husband. The BIA failed to point out that, after the first husband's divorce from Saldana's present wife, the first husband was murdered. See 762 F.2d at 828. Few BIA decisions would survive our review if we reversed each time an arguably relevant fact was omitted. The BIA's decision would not have been any different had it noted the death of Saldana's wife's first husband. The divorce preceded the murder. The wife did not lose her first husband because of an assassin's attack. The loss was by way of divorce.
Third, the panel majority chides the BIA for discounting the hardship likely to ensue upon deportation because Saldana's marriage took place at a time when he knew he was subject to deportation. It does not argue that the BIA could not conclude that the parties' hardship would be less because they married with knowledge of Saldana's immigration status. This court has recognized the legitimacy of such a conclusion. See, e.g., Ahwazi v. INS, 751 F.2d 1120, 1123 (9th Cir.1985). Instead, the panel argues that the BIA is to be faulted because it did not express this conclusion clearly enough. This is nit-picking and is not consistent with our role of reviewing the decisions of the BIA. Although the panel majority can cite Prapavat v. INS, 662 F.2d 561 (9th Cir.1981) (per curiam), to support its supervision of BIA draftmanship, there are a number of cases in which panels of this circuit have refused to employ such scrutiny. See, e.g., Ahwazi; Vasquez v. INS, 767 F.2d 598 (9th Cir.1985); Israel v. INS, 710 F.2d 601 (9th Cir.1983); Hamid v. INS, 648 F.2d 635 (9th Cir.1981).
In a recent amendment to Saldana, see 785 F.2d at 650, the panel majority attempts to respond to Judge Goodwin's dissent, 762 F.2d at 829-30. Because Judge Goodwin has accurately portrayed the tenor of the Supreme Court's opinion in Wang v. INS, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), reversing 622 F.2d 1341 (9th Cir.1980) (en banc), I will not repeat his points. My effort is directed toward the majority's efforts to distinguish Wang and Rios-Pineda.
First, it is asserted that Wang differs because there "the BIA had 'considered the facts alleged.' " 785 F.2d at 650 (quoting Wang, 450 U.S. at 144, 101 S.Ct. at 1031). As we have seen, the only fact the BIA failed to notice here was the murder of the first husband of the current spouse of the petitioner after their divorce. The majority's other two criticisms of the BIA opinion contribute nothing toward distinguishing Wang. The BIA considered the psychiatric report as well as the circumstances surrounding Saldana's current marriage. Perhaps the majority felt the BIA considered too much, not too little.
Second, the majority relies on the Supreme Court's characterization of Wang, as not a "particularly unusual case." 450 U.S. at 145, 101 S.Ct. at 1031. It sees Saldana, unlike Wang, as a " 'particularly unusual case.' " 785 F.2d at 650. The judges of the majority are much too experienced not to have previously encountered cases quite similar to this one.
Third, the panel majority distinguishes Rios-Pineda, 105 S.Ct. 2098 (1985), by noting that "[w]e do not attempt to impose any particular definition of hardship on the BIA." 785 F.2d at 650. Perhaps not, but the majority does wish to narrow the discretion of the Attorney General. The Supreme Court has taken great pains to make it clear to us that Congress has bestowed the authority to regulate immigration upon the Attorney General. He has delegated that authority in turn to the INS. We should recognize these juridical facts. To repeat, we are not the BIA.
Finally, a comment on the methodology employed by the majority is necessary. Discretion effectively can be eliminated by holding that under certain specific circumstances discretion must be exercised in one, and only one, manner. It also can be reduced by erecting procedural rules governing the manner in which it is to be exercised. Procedural rules, of course, need not reduce discretion. In their benign form they merely assure that the determination was the result of a genuine exercise of discretion and not the consequence of whim or caprice. In a more restrictive form they can substantially channel the direction to be taken by the discretionary act. For example, the inadmissibility of certain facts and the illegitimacy of certain concerns can function in this manner.
Operating in a somewhat similar manner are rules that require that the process by which discretion is exercised be set forth in some detail. Such rules required that discretion's tracks be made visible to the reviewing authority. Each track can then be examined to determine whether it is the...
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