Vaughn v. Immigration and Naturalization Service
| Decision Date | 11 March 1981 |
| Docket Number | No. 80-1552,80-1552 |
| Citation | 643 F.2d 35 |
| Parties | Mavis Malvina VAUGHN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Jose M. Gonzalez Cintron, Rio Piedras, P. R., for petitioner.
Eric A. Fisher, Atty., Criminal Division, Dept. of Justice, Washington, D. C., with whom James P. Morris, Atty., General Litigation and Legal Advice Section, Criminal Division, Dept. of Justice, Washington, D. C., was on brief, for respondent.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
Mavis Malvina Vaughn petitions for review of a decision of the Board of Immigration Appeals (Board), upholding the immigration judge's denial of suspension of her deportation.
Vaughn is a citizen of St. Kitts, British West Indies, who last entered the United States on January 17, 1970 as a nonimmigrant visitor for pleasure with authority to remain until January 19, 1970. She is the mother of four children born in the United States, who are United States citizens. Vaughn has been receiving welfare and food stamp benefits since 1973, and at this time her full support is from public assistance.
On February 10, 1975, Vaughn received a grant of voluntary departure by March 10, 1975, but did not depart. On November 17, 1975, she was charged with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), as a non-immigrant who had remained in the United States beyond the period of her authorized stay. Vaughn conceded deportability at a hearing before an immigration judge in December 1975, and was again granted the privilege of voluntary departure in lieu of deportation. Again, she failed to depart.
On February 8, 1977, Vaughn applied for suspension of deportation pursuant to section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), which provides for this discretionary remedy in the case of aliens of good moral character, continuously present in the United States for at least seven years immediately preceding the application, "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...." An immigration judge reopened Vaughn's deportation proceedings on March 30, 1977, and, on January 17, 1978, held a hearing concerning her application for suspension. That same day the judge issued a decision denying the application, on the ground that, while Vaughn had established the necessary period of continuous presence and good moral character, she had not demonstrated that she would suffer "extreme hardship" if deported.
On appeal, the Board reversed, finding that Vaughn's deportation would result in "extreme hardship" to her four citizen children who would be unable to remain in the United States without her and would thus "forfeit educational, cultural, and financial advantages" available to them here. The Board remanded to the immigration judge for a determination whether Vaughn's application merited a favorable exercise of discretion. On March 28, following another hearing, the immigration judge reaffirmed the original decision denying the application. The judge found that Vaughn's complete dependence on public assistance, her failure to seek work despite good health, and her repeated refusals to depart voluntarily when given the privilege to do so, militated against an exercise of discretion on her behalf. 1 The Board affirmed this decision on review, and on June 18, 1980, denied Vaughn's motion for reconsideration.
The sole issue on this appeal is whether the Board abused its discretion in denying petitioner's application for suspension of deportation. See Bonsukan v. INS, 554 F.2d 2, 4 (1st Cir.), cert. denied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977). While petitioner devotes most of her brief to an argument that "extreme hardship" was shown, this fact was expressly found by the Board in its decision of November 22, 1978, and Vaughn's eligibility for relief under the statute is conceded. Nevertheless, even where an applicant meets all the requirements of section 244(a)(1), suspension of deportation may be denied in the exercise of discretion. Fong Choi Yu v. INS, 439 F.2d 719 (9th Cir. 1971) (per curiam); Yeung Ying Cheung v. INS, 422 F.2d 43, 46-47 (3d Cir. 1970) (per curiam). See United States ex rel....
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