Wang v. Immigration & Naturalization Service

• Decision Date: 04 June 1980
• Docket Number: No. 78-1243,78-1243
• Citation: 622 F.2d 1341
• Parties: Jong Ha WANG and Kyung Hwa Wang, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1341

622 F.2d 1341

Jong Ha WANG and Kyung Hwa Wang, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 78-1243.

United States Court of Appeals, Ninth Circuit.

June 4, 1980.

Roger J. Gleckman, Gleckman & Prescott, Los Angeles, Cal., for petitioners.

Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

On Petition to Review a Decision of the U.S. Immigration & Naturalization Service.

Before WRIGHT, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG and TANG, Circuit Judges. ^*

CHOY, Circuit Judge:

The Wangs petition for review of the denial of their motion to reopen deportation proceedings to allow them to apply for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254. The only issue raised by the petition is whether in their motion to reopen the Wangs made a prima facie showing of extreme hardship as required by the Act. We chose to take this case en banc because there has been some confusion as to what an alien is required to show and what the Board of Immigration Appeals (the Board) is required to consider in cases where the questions are whether the alien is (1) eligible for and (2) merits suspension of deportation.

In moving to reopen deportation proceedings to apply or in applying for suspension of deportation an alien must present facts that, if proved, would make him eligible for relief. In ruling on a motion or on an application the Board must consider all of the facts of the case and then exercise its discretion.

We reverse the order of the Board and remand for a hearing on the Wangs' eligibility for suspension of deportation and for the exercise of the Board's discretion.

I. Statement of the Case

The Wangs, husband and wife, are natives and citizens of Korea. They entered the United States as nonimmigrant treaty traders in January 1970 authorized to remain for six months. They have two United States citizen children, one born in March 1970, and one born in December 1973.

In November 1974, the Wangs were found deportable at a deportation hearing and granted voluntary departure on or before February 1, 1975. In July 1975, the deportation proceedings were reopened to allow the Wangs to apply for adjustment of status under § 245 of the Act, 8 U.S.C. § 1255. The immigration judge denied the applications for adjustment of status, and two years later the Board dismissed the appeal. ¹

In December 1977, ten months after accruing seven years of continuous physical presence in the United States, the Wangs filed a second motion to reopen their deportation proceedings, this one seeking suspension of deportation under § 244 of the Act, 8 U.S.C. § 1254. Finding that the Wangs had failed to make a prima facie showing of one of the requirements of § 244, extreme hardship, the Board denied the motion to reopen. The Wangs petition for review of that decision.

II. Standard of Review

Section 244(a) provides in part:

(T)he Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and

(1) is deportable . . .; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship ² 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.

In this statute the discretion granted to the Attorney General is twofold. The Attorney General has the discretion to determine whether an alien is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship" and the discretion to determine whether to suspend deportation of an alien who meets all of the requirements of the statute. An additional level of discretion is purportedly created by the regulations, i. e., the discretion to reopen deportation proceedings. See 8 C.F.R. §§ 3.2, 242.22 (1979).

An alien may move to reopen deportation proceedings to seek discretionary relief where circumstances change after a deportation order is entered. Urbano de Malaluan v. INS, 577 F.2d 589, 592 (9th Cir. 1978). The Board may not grant such a motion unless it is based upon material new facts. 8 C.F.R. § 3.2 (1979). The Board must determine whether the alien has set forth sufficient facts in his moving papers to make a prima facie case of eligibility for relief. Urbano de Malaluan v. INS, 577 F.2d at 592-93.

When the Board determines that a prima facie case has not been shown and denies the motion to reopen, review by this court is limited to the question whether the Board abused its discretion. Id.; Lee v. INS, 550 F.2d 554, 555 (9th Cir. 1977). We have taken the position that "(w)hen an application for suspension of deportation establishes a prima facie case of eligibility, it is an abuse of discretion to deny a motion to reopen deportation proceedings." Choe v. INS, 597 F.2d 168, 170 (9th Cir. 1979) (citing Urbano de Malaluan v. INS, 577 F.2d at 593). We reaffirm that position.

III. Extreme Hardship

In the present case the parties agree that the Wangs have established a prima facie case of seven years' presence in the United States and good moral character during that time. The sole question is whether the Wangs have made a prima facie showing of extreme hardship.

Almost every alien who is deported will suffer some hardship. The statute was not designed to provide relief from deportation for every alien of good moral character who has been in this country for seven years. Nonetheless, the statute should be liberally construed to effectuate its ameliorative purpose, see Wadman v. INS, 329 F.2d 812, 817 (9th Cir. 1964), so that suspension of deportation will be granted to the alien for whom the hardship from deportation would be different and more severe than that suffered by the ordinary alien who is deported.

A. Prima Facie Case

In a motion to reopen an alien must allege new facts that are supported by affidavits or other evidentiary material. 8 C.F.R. § 3.2 (1979); Wosough-Kia v. INS, 597 F.2d 1311, 1312 (9th Cir. 1979) (quoting 8 C.F.R. § 3.8 (1979)). Conclusory allegations alone will not trigger any responsibility to reopen and afford the alien a hearing. "Notice" pleading will not suffice. See Tenorio-Martinez v. INS, 546 F.2d 810, 812 (9th Cir. 1976). Moreover, the facts must be such as would, if proved, establish eligibility and potentially affect the result of the proceedings. See Ballenilla-Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S.Ct. 58, 54 L.Ed.2d 75 (1977); 8 C.F.R. § 3.2 (1979); 1 C. Gordon & H. Rosenfield, Immigration Law & Procedure § 1.10g, at 1-82 (1979).

We believe that equities arising when the alien knows that he is in this country illegally, e. g., after a deportation order is issued, are entitled to less weight than are equities arising when the alien is legally in this country. That is not to say that facts arising after a deportation order has been issued are to be totally discounted, however. Rather, we feel that it is necessary for the Board to consider all of the surrounding circumstances. The nature of each fact and the underlying motivation that caused any change in circumstances undoubtedly will affect the weight to be given to any fact supporting the alien's application for relief from deportation. ³ Some facts in and of themselves establish extreme hardship; other facts establish extreme hardship only in conjunction with other factors, if at all. Some facts raise a suspicion that an alien has a calculated purpose to delay or completely to avoid deportation, see, e. g., Der-Rong Chour v. INS, 578 F.2d 464 (2d Cir. 1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1786, 60 L.Ed.2d 239 (1979), whereas other facts demonstrate only that life has not stopped for the alien merely because he is in the country illegally. ⁴ Such facts should be given different weights, and those that are less severe or more calculated should receive less weight.

It should be noted that the "extreme hardship" portion of the statute is written in the disjunctive rather than in the conjunctive. Thus, an alien must allege facts that demonstrate extreme hardship to only one of those persons mentioned in the statute: i. e., extreme hardship to himself, to his spouse, to one of his parents, or to one of his children, so long as the spouse, parent, or child ⁵ is a United States citizen or an alien admitted for permanent residence. In determining whether the alien has set forth a prima facie case for eligibility the Board should consider the aggregate effect of deportation on all such persons when the alien alleges hardship to more than one. However, a showing of extreme hardship to any one is sufficient to establish eligibility. ⁶

The determination whether a prima facie showing of extreme hardship has been made, like the post-hearing discretionary determinations whether extreme hardship actually exists and whether, if it does, deportation should be suspended, "is not bound by hard and fast rules; each case must be decided on its own facts," Banks v. INS, 594 F.2d 760, 762 (9th Cir. 1979). The Board should avoid drawing fine lines of distinction, and also should avoid acting inconsistently with guidelines provided by earlier decisions. See, e. g., Urbano de Malaluan v. INS, 577 F.2d at 595.

Although an alien who sets forth a prima facie case of eligibility for relief must be afforded a hearing, the mere fact that a prima facie case is made does not preordain the result of the hearing. Proof of eligibility does not compel that relief be granted, Fong Choi Yu v....