Saldana v. I.N.S.

• Decision Date: 28 March 1986
• Docket Number: 84-7549,Nos. 84-7118,s. 84-7118
• Citation: 762 F.2d 824
• Parties: Herman SALDANA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

762 F.2d 824

Herman SALDANA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 84-7118, 84-7549.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1985.

Decided June 10, 1985.

A Amended March 28, 1986. ^*

Heriberto Gonzales, Los Angeles, Cal., for petitioner.

Dzintra Janavs, Los Angeles, Cal., for respondent.

An Appeal From Board of Immigration Appeals.

Before GOODWIN, FLETCHER, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge.

Petitioner, Herman Saldana, appeals the decisions of the Board of Immigration Appeals (BIA) denying his motions to reopen his deportation proceeding and to reconsider his prior motion to reopen immigration proceedings to permit him to apply for suspension of deportation. For the reasons stated below, we reverse and remand for further proceedings.

FACTS

Petitioner, a native and citizen of Peru, entered the United States in March, 1971 as a nonimmigrant visitor. The Immigration and Naturalization Service (INS) subsequently changed Saldana's status to that of a student and authorized him to enroll at California State University at Los Angeles where he eventually earned a B.A. degree in Political Science. Saldana failed to maintain his student status when he completed attendance at the university and began working.

At his deportation hearing, in August 1981, Saldana conceded that he had failed to comply with the conditions of student status under which he had been authorized to remain in the United States. The Immigration Judge (IJ) continued the hearing to allow Saldana time to file for adjustment of status and for suspension of deportation. In November 1981, at the continued hearing, the IJ found Saldana deportable based on his admissions to the charges against him, and granted him voluntary departure. At this hearing, Saldana admitted that he could not establish extreme hardship to qualify for suspension of deportation. In addition, the IJ found that Saldana could not qualify for adjustment of status because his first wife, upon their divorce, had withdrawn her application to classify him as a near-relative. In April 1983, the BIA denied Saldana's appeal of the IJ's decision.

In March 1983, Saldana married a widow, Graciela, with whom he had been friends for twelve years and whose first husband had been shot and killed in July 1982. Graciela has been a permanent resident of the United States since June 1967, and has four young children from her prior marriage In July 1983, Saldana filed a motion to reopen the deportation proceedings to apply for suspension of deportation under section 244 of the Immigration and Naturalization Act (INA), 8 U.S.C. Sec. 1254(a) (1982). Saldana alleged in the motion that his deportation would result in extreme hardship to himself and his family. He asserted that he had attended school in the United States for nine years, worked as a "punch-press operator" in South Gate for the past fifteen years, that all his friends were in this country, that he had a permanent resident sister here, that he sent $125.00 per month to his mother in Peru, and that severing his ties with the United States would render him unable to further support his mother, wife, and prospective child. The BIA denied this motion stating that Saldana had failed to establish the required prima facie eligibility for suspension of deportation. The BIA found that Saldana and Graciela had known of the possibility of Saldana's deportation before both their marriage and Graciela's subsequent pregnancy. The Board also found no merit in petitioner's contention that he could earn more money in the United States as a "punch press operator" than he could in Peru, with the benefit of his political science degree.

who are United States citizens. In addition, in December 1983, Graciela gave birth to a fifth child. Saldana is the child's father.

In October 1983, Saldana filed a motion to reconsider the BIA's denial of his motion to reopen to permit him to apply for suspension of deportation. In the motion to reconsider, Saldana's counsel alleged, among other things, that when he originally filed the motion to reopen he was unaware that Saldana was supporting Graciela's four children from her former husband. In support of the motion for reconsideration, Saldana submitted affidavits indicating that he was the sole support of his wife and family. He also submitted a psychiatric-medical report which indicated the special extreme hardships which Graciela and her children would encounter if Saldana were deported so soon after the violent death of Graciela's first husband. The BIA denied reconsideration upon its finding that Saldana had again failed to make a prima facie showing of extreme hardship. Saldana appeals from the BIA's rulings.

DISCUSSION

Section 244 of the Immigration and Nationality Act (INA) provides that an alien is eligible for suspension of deportation if he has resided continuously in the United States for seven years, is 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...." 8 U.S.C. Sec. 1254(a)(1) (1982).

While issues concerning suspension of deportation usually arise in an alien's deportation hearing, they can arise, as they did here, on a motion to reopen or a motion to reconsider the denial of a motion to reopen after the IJ has ordered deportation. The BIA may reopen or reconsider any case in which it has rendered a decision, either on its own motion or on the motion of the affected alien. 8 C.F.R. Sec. 3.2, 3.8(a) (1984); Chudshevid v. INS, 641 F.2d 780, 783 (9th Cir.1981).

A motion to reopen must be based upon new material evidence which was not available and which the alien could not have discovered or presented at the prior hearing. 8 C.F.R. Sec. 3.2 (1984); Batoon v. INS, 707 F.2d 399, 401 (9th Cir.1983) (citing INS v. Wang, 450 U.S. 139, 140-41, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (per curiam) ). A motion to reconsider, on the other hand, merely needs to "state the reasons upon which the motion is based" and "be supported by such precedent decisions as are pertinent." 8 C.F.R. Sec. 3.8(a) (1984). There is no requirement that motions to reconsider be based on allegations of new fact or even new precedent. Chudshevid, 641 F.2d at 784.

A. Standard of Review

The BIA has the discretion to construe "extreme hardship" narrowly. INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981). However, the exercise of its discretion must not be " 'arbitrary, irrational, or contrary to law.' " Reyes v. INS, 673 F.2d 1087, 1089 (9th Cir.1982) (quoting Santana-Figueroa v. INS, 644 F.2d 1354, 1355 (9th Cir.1981) ). We should review the BIA's exercise of discretion concerning motions to reopen and motions to reconsider under an abuse of discretion standard. Id.

B. Merits

While the immigration authorities may construe "extreme hardship" narrowly when dealing with suspensions of deportation, INS v. Wang, 450 U.S. at 144-45, 101 S.Ct. at 1031, the BIA nonetheless abused its discretion in finding that Saldana had not made a prima facie showing of "extreme hardship." ¹

The BIA did not properly consider all the factors relevant to the "extreme hardship" determination. When the BIA distorts or disregards important aspects of the alien's claim, denial of relief is arbitrary, and the BIA is considered to have abused its discretion. Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981). See also, Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984) (the BIA must consider all circumstances relevant to the hardship determination). Further, when the BIA dismisses an alien's claims with conclusory or laconic statements, this court may conclude that the BIA has abused its discretion by failing to " 'give reasons which show that it has properly considered the facts which bear on its decision.' " Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.1981) (per curiam) (quoting Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981) ). See also De La Luz v. INS, 713 F.2d 545, 546 (9th Cir.1983) (per curiam) (BIA must view situation realistically).

Saldana alleges that his deportation would result in "extreme hardship" due to his unique family situation. Specifically, he alleges that his deportation, so soon after the death of his wife's former husband and his four step-children's natural father, would have a traumatic psychiatric effect on them. The psychiatric report Saldana submitted supports this allegation:

It is our opinion, the rupture of this family unit thru the forced deportation of Mr. Saldana, would precipitate a family crisis and cause undue and lasting psychological damage to Graciela, the unborn child and the existing children. Graciela could potentially be suicidal or suffer a severe post-partum depression which also would seriously affect the baby and the children.

Saldana's statements in his affidavit, attached to his motion to reconsider, further support his contention of extreme hardship. In this affidavit, Saldana swore that he loved his wife and step-children dearly and that his deportation would cause them all extreme hardship. Furthermore, Saldana alleged that if he were deported he was certain he could not find sufficient employment in Peru to support his family. ²

Graciela also executed an affidavit in October 1983, in which she swore that if her husband were deported she would have to give birth to their child alone and that she would be unable to support all her children. She further asserted that while she could not bear to live without Saldana, she would not remove her children from the United States to be brought up in Peru.

The BIA's interpretation of the psychiatric report which Saldana submitted typified the extremely generalized manner in which it...