Interim Decision #3281
Interim Decision #3281
In re L-O-G-, Respondent
File A28 862 064 et al.- Miami
Decided June 14, 1996
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Reopening may be had where the new facts alleged, together with the facts already of
record, indicate a reasonable likelihood of success on the merits, so as to make it worthwhile
to develop the issues at a hearing. Where ruling on a motion requires the exercise of judgment regarding eligibility for the relief sought, the Board does not require a conclusive
showing that, assuming the facts alleged to be true, eligibility for relief has been established.
By granting reopening the Board does not rule on the ultimate merits of the application for
relief. Matter of Sipus, 14 I&N Dec. 229 (BIA 1972), reaffirmed.
(2) Reopening to apply for suspension of deportation is granted where 1) the 15-year-old
respondent has lived in the United States since the age of 6; 2) the adult respondent, her
mother, also has a 6-year-old United States citizen child; 3) the respondents are from a country where economic and political conditions are poor; and 4) the respondents have been covered by the Nicaraguan Review Program since 1987.
FOR RESPONDENT: Ernesto Varas, Esquire, Miami, Florida
FOR IMMIGRATION AND NATURALIZATION SERVICE: Mark N. Glickman, General
Attorney
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES,
HURWITZ, VILLAGELIU, COLE, ROSENBERG, MATHON, and GUENDELSBERGER,
Board Members. Dissenting Opinion: FILPPU, Board Member, joined by VACCA and
HEILMAN, Board MEMBERS
SCHMIDT, Chairman:
This case was last before us on May 10, 1995, when we dismissed an
appeal from an Immigration Judge’s denial of the respondents’ applications
for asylum and withholding of deportation. The respondents, a mother and
her 15-year-old daughter, have now filed a motion to reopen their deportation
proceedings to apply for suspension of deportation. The respondents claim
extreme hardship to themselves. The adult respondent also claims extreme
hardship to her 6-year-old United States citizen child.
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The Immigration and Naturalization Service opposes the motion to reopen
for two reasons. First, the Service asserts that the respondents do not merit
suspension of deportation, or reopening, as a matter of discretion because of
their “obvious disregard for the immigration laws of the United States.” Second, the Service argues that the respondents “have not shown that they or
their United States citizen child/brother would suffer extreme hardship if
returned to Nicaragua,” because they have not shown “unique and extenuating circumstances.”
The motion to reopen will be granted.
I. REQUIREMENTS FOR REOPENING
An alien may file a motion to reopen to this Board in order to apply for discretionary relief from deportation. 8 C.F.R. § 3.2 (1995). The Board has
“broad discretion to grant or deny such motions.” INS v. Doherty, 502 U.S.
314 (1992); INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Jong Ha Wang,
450 U.S. 139 (1981); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
There are at least three grounds on which the Board may deny motions to
reopen. Failure to comply with the regulatory requirements which govern
such motions can result in denial of the motion. In addition, a motion to
reopen may be denied because the applicant has not established prima facie
eligibility for the underlying relief being sought. INS v. Abudu, 485 U.S. 94
(1988). Finally, where the relief being sought is discretionary, the Board may
deny reopening on discretionary grounds alone. INS v. Doherty, supra; INS v.
Abudu, supra; INS v. Rios-Pineda, supra; Matter of Barrera, 19 I&N Dec.
837 (BIA 1989).
The Service does not argue, and we do not find, that the respondents have
failed to satisfy the regulatory requirements for reopening. See 8 C.F.R.
§§ 3.2, 3.8 (1995). The questions raised by the Service, which we must
address, are (1) whether the respondents have made a prima facie showing of
eligibility for suspension of deportation, and (2) whether their motion should
be denied on discretionary grounds.
We find no basis for denying the respondents’ motion to reopen in the
exercise of discretion. The Service argues that the motion should be so
denied because the respondents filed a “frivolous” appeal and failed to depart
voluntarily when required to do so. We do not agree that the respondents’
appeal was frivolous. The Immigration Judge issued a 9-page decision denying the respondents’ applications for asylum and withholding of deportation.
The respondents filed a thoughtful brief in support of their appeal from that
decision. We affirmed the Immigration Judge’s decision in a brief order that
did not indicate that the respondents’ appeal was frivolous or otherwise
wholly lacking in merit.
The respondents technically should have departed from the United States
voluntarily within 30 days of our May 10, 1995, decision in this case.
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However, we note that the respondents, as Nicaraguan nationals, were eligible to apply for work authorization even after our decision in their case was
rendered, pursuant to the Nicaraguan Review Program. While that program
terminated on June 13, 1995, those covered by the program were authorized
to request permission to work pending resolution of their applications for
suspension of deportation. Given the fact that the Service has taken no action
to deport these respondents and, indeed, indicated its acquiescence in the filing of suspension applications by similarly situated individuals, we find no
reason to deny reopening as a matter of discretion. See discussion infra part
III. See generally Matter of Pena-Diaz, 20 I&N Dec. 841 (BIA 1994).
The determinative issue in this case, then, is whether the respondents have
established prima facie eligibility for suspension of deportation.
To establish eligibility for suspension of deportation, an alien must show
that (1) she has been physically present in the United States for the 7 years
immediately preceding the filing of the suspension application; (2) she has
been a person of good moral character for the same period of time; and (3) her
deportation would result in extreme hardship to herself or to her United
States citizen or lawful permanent resident spouse, child, or parent. Section
244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1)
(1994). The older respondent in this case, now 38 years of age, entered the
United States in April of 1988. Her daughter, now 15, entered in 1986. Neither has left the country since their respective arrivals. The continuous physical presence requirements have been met. The record does not indicate that
these respondents lack good moral character.
The remaining and critical issue is whether the respondents have made a
prima facie showing of extreme hardship so as to warrant reopening of their
deportation proceedings.
II. MEANING OF THE TERM “EXTREME HARDSHIP”
A. The Legislative History
In assessing the meaning of the term “extreme hardship,” it is important to
recall that section 244(a)(1) of the Act previously included the requirement
of “exceptional and extremely unusual hardship.” In 1962, Congress
amended the suspension statute to require only “extreme” hardship, and left
the “exceptional and extremely unusual hardship” language intact solely for
those aliens who were convicted of crimes, or who were otherwise deportable
on other specified grounds. See Act of October 24, 1962, Pub. L. No. 87-885,
§ 4, 76 Stat. 1247. We have previously acknowledged that in amending section 244(a)(1) in this manner, Congress intended to lessen the degree of hardship required to qualify for suspension of deportation. See Matter of Hwang,
10 I&N Dec. 448 (BIA 1964).
The legislative history is silent regarding the reasons for the 1962 change
in the suspension of deportation statute. We do not suggest that the change
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reflects a congressional desire to return to the pre-1952 pattern of allowing
aliens to remain in this country simply because they had been here for a time,
or had acquired United States citizen relatives. However, it is clear that Congress found the “exceptional and extremely unusual” language inappropriate,
and that it intended to make the suspension remedy more widely available by
amending the statute in 1962. That clearly was a remedial intent.
Moreover, section 244(a)(2) of the Act, which provides for suspension of
deportation for certain criminal or otherwise deportable aliens, still requires a
showing of “exceptional and extremely unusual hardship” for eligibility for
this relief. The term “extreme hardship” in section 244(a)(1) should not be
defined or applied so restrictively that it effectively subsumes this heightened
standard under section 244(a)(2).
B. The Case Law
“Hardship” is itself a difficult term to define or quantify, and the case law
on this subject has reflected this difficulty. As this Board recognized over 30
years ago, the term “extreme hardship” under our immigration laws “is not a
definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case.” Matter of
Hwang, supra, at 451. In assessing hardship, and perhaps especially in considering a possible prima facie showing of such hardship, we must keep in
mind the subjective nature of the term. Moreover, in analyzing any case
involving suspension of deportation, we should also be mindful of the remedial nature of the suspension statute. See generally Wadman v. INS, 329 F.2d
812 (9th Cir. 1964).
A comprehensive discussion of the concepts underlying the meaning of
extreme hardship was most recently set forth by the Board in Matter of Ige,
20 I&N Dec. 880 (BIA 1994). In that case we first referred to the general factors often cited as relevant to the issue of extreme hardship, including the
alien’s age; the length of her residence in the United States; her family ties in
the United States and abroad; her health; the economic and political conditions in the country to which she may be returned; her financial status, business, or occupation; the possibility of other means of adjustment of status, her
immigration history; and her position in the community. This summary of
factors, initially noted by the Board in Matter of Anderson, 16 I&N Dec. 596
(BIA 1978), was derived from a discussion in a committee report in the 94th
Congress on § 4 of H.R. 8713, a bill which provided for discretionary adjustment of status for certain aliens whose deportation would result in unusual
hardship. Id. at 597.
Our decision in Matter of Ige, supra, which cited to a variety of Board and
court precedents which we shall not repeat here, also summarized certain
principles or maxims that have evolved over the years when evaluating the
question of extreme hardship. For example, the birth of a United States
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Interim Decision #3281
citizen child does not in itself establish extreme hardship. Further, a showing
of a significant reduction in one’s standard of living does not alone compel a
finding of extreme hardship, but the political and economic conditions in
one’s homeland are relevant. A showing of some degree of financial hardship
is not in itself sufficient to demonstrate extreme hardship. A claim that an
adult or child will have difficulty in readjusting to life in one’s native country
is also not sufficient without more. The fact that economic, educational, and
medical facilities and opportunities may be better in the United States does
not in itself establish extreme hardship. Also, the possibility of other means
to adjust one’s status weighs against a finding of extreme hardship.
Other general maxims, not referenced in Matter of Ige, supra, may be
gleaned from a review of the case law. The most obvious of these is perhaps
the long-recognized rule that a mere showing of 7 years’ presence in the
United States does not constitute extreme hardship. Matter of Sipus, 14 I&N
Dec. 229 (BIA 1972). Also, while conditions in the alien’s native country may
be considered in evaluating an allegation of extreme hardship, a claim of persecution may not generally be presented as a means of demonstrating extreme
hardship for purposes of suspension of deportation. See Gebremichael v. INS,
10 F.3d 28 (1st Cir. 1993); Farzad v. INS, 802 F.2d 123 (5th Cir. 1986);
Kashefi-Zihagh v. INS, 791 F.2d 708 (9th Cir. 1986); Sanchez v. INS, 707 F.2d
1523 (D.C. Cir. 1983); Hee Yung Ahn v. INS, 651 F.2d 1285 (9th Cir. 1981);
Matter of Kojoory, 12 I&N Dec. 215 (BIA 1967); Matter of Liao, 11 I&N
Dec. 113 (BIA 1965). But see Blanco v. INS, 68 F.3d 642 (2d Cir. 1995). Further, equities which are acquired after a final order of deportation has been
entered are generally entitled to less weight than those acquired before entry
of such an order. Matter of Correa, 19 I&N Dec. 130 (BIA 1984).
General rules also revealed by study of the case law are that, with all else
being equal, the younger the children, or the wealthier, better-educated, or
more employable the alien, the less likely a finding of extreme hardship. See,
e.g., Matter of Kim, 15 I&N Dec. 88 (BIA 1974). See generally INS v. Jong
Ha Wang, supra. Additionally, applicants returning to a developed country
are less likely to be able to demonstrate extreme hardship than those returning to a less developed or particularly impoverished country. See Banks v.
INS, 594 F.2d 760 (9th Cir. 1979).
This litany of factors which do not, by themselves, generally constitute
extreme hardship, must be considered in proper context. Each case must be
carefully evaluated, and all possible hardship factors must be weighed
together. See, e.g., Turri v. INS, 997 F.2d 1306 (10th Cir. 1993);
Hernandez-Cordero v. INS, 819 F.2d 558, 563 (5th Cir. 1987); Prapavat v.
INS, 662 F.2d 561 (9th Cir. 1981). A factor which may not in itself be determinative should be considered, and may become a significant or even critical
factor when weighed with all the other circumstances presented. In all cases,
the particular degree of personal hardship resulting from each of the factors
must be taken into account.
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The Supreme Court has held that the Attorney General and her delegates
“have the authority to construe ‘extreme hardship’ narrowly should they
deem it wise to do so,” and has stated that a narrow interpretation of the term
is consistent with the exceptional nature of the suspension remedy. INS v.
Jong Ha Wang, supra, at 145. The Court used the “narrowly construe” language in ratifying this Board’s authority to interpret “extreme hardship” in
the particular case before it. Wang involved affluent, educated respondents.
We do not suggest that the denial of reopening in Wang was incorrect. A
“narrow” interpretation that denies reopening to aliens such as the Wangs
need not be as restrictive as the Service argues.
Wang does not require that extreme hardship be construed in the narrowest
sense. We have never in our published precedents interpreted the term so narrowly that it is reserved only for those cases involving the most compelling or
manifestly unique hardships. Indeed, we do not accept the Service contention
in this case that the motion should fail because no “unique or extenuating circumstances” have been shown. The word “extreme” should not be equated
with “unique,” and hardship for suspension purposes need not be unique to
be extreme.
A restrictive view of extreme hardship is not mandated either by the
Supreme Court or by our published case law. Our granting of this motion is
fully consonant with our seminal decision in Matter of Anderson, supra.
Moreover, a flexible approach to extreme hardship harmonizes Board law
with prevailing case law from the judicial circuits. See, e.g., Salameda v. INS,
70 F.3d 447 (7th Cir. 1995); Blanco v. INS, supra; Tukhowinich v. INS, 64
F.3d 460 (9th Cir. 1995); Watkins v. INS, 63 F.3d 844 (9th Cir. 1995); Turri v.
INS, supra; Babai v. INS, 985 F.2d 252 (6th Cir. 1993).
III. PRIMA FACIE SHOWING OF EXTREME HARDSHIP
Bearing in mind all these considerations regarding the meaning of extreme
hardship, we turn now to the question of what constitutes a prima facie case
of extreme hardship. Just as there are no bright line tests for determining what
constitutes extreme hardship and what does not, so there are no easy rules for
deciding what makes a prima facie case of such hardship and what does not.
Certain clear requirements must be met, of course, to make such a showing. It is not enough, for example, simply to allege extreme hardship for reasons that will be explained at the reopened hearing. See Matter of Sipus,
supra; see also INS v. Jong Ha Wang, supra. In addition, the allegations of
hardship that are made in a motion to reopen should be specific, not
conclusory, and should be supported by evidence in the form of affidavits or
other documentation.
However, where, as in suspension cases, ruling on a motion to reopen
requires the exercise of judgment regarding eligibility for the relief sought,
the Board historically has not required a conclusive showing that, assuming
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the facts alleged to be true, eligibility for relief has been established. Rather,
we have been willing to reopen “where the new facts alleged, when coupled
with the facts already of record, satisfy us that it would be worthwhile to
develop the issues further at a plenary hearing on reopening.” Matter of
Sipus, supra, at 231. As the Supreme Court stated in INS v. Jong Ha Wang,
supra, reopening for a hearing on suspension of deportation is appropriate
where the Board is presented with a motion “reliably indicating the specific
recent events that would render deportation a matter of extreme hardship.”
Id. at 143.
In considering a motion to reopen, the Board should not prejudge the merits of a case before the alien has had an opportunity to prove the case. See generally Motamedi v. INS, 713 F.2d 575 (10th Cir. 1983). By finding that an
alien has made out a prima facie case of extreme hardship, we are not deciding that the respondents should be granted suspension of deportation as a
matter of law or discretion if the facts alleged are shown to be true. We are
deciding only that there is a reasonable likelihood that the statutory requirements for the relief sought have been satisfied, and that there is a reasonable
likelihood that relief will be granted in the exercise of discretion. See M.A. v.
United States INS, 899 F.2d 304 (4th Cir. 1990); Marcello v. INS, 694 F.2d
1033 (5th Cir.), cert. denied, 462 U.S. 1132 (1983).
The ultimate determination on a suspension application rests with the
Immigration Judge after the respondents have had an opportunity to present
all the evidence and arguments in their favor at the hearing. See Matter of
Pena-Diaz, supra. Given the subjective nature of the extreme hardship
requirement, it is appropriate for the Immigration Judge to hear in person the
evidence in support of the claim. We note that the testimony of suspension
applicants, and sometimes of their family members, can often be crucial in
these cases. Frequently, it will be difficult to assess from motion papers alone
what actual hardship will occur upon deportation in a given case. Therefore,
so long as the motion papers do provide objective facts to support a reasonable likelihood of extreme hardship, we do not require a showing that the
facts, if true, definitively establish extreme hardship.
We acknowledge our prior decisions holding that the moving party generally bears a heavy burden in seeking reopening of proceedings. Matter of Ige,
supra; Matter of Coelho, supra. The Supreme Court has also recognized this
heavy burden. See INS v. Doherty, supra; INS v. Abudu, supra. However, this
principle does not require a conclusive showing on elements of eligibility
which involve the exercise of judgment, such as the extreme hardship
requirement for suspension of deportation.
We further note that in those cases where we have emphasized the heavy
burden of proof faced by an alien seeking reopening, the facts warranted the
strict imposition of such a burden. In Matter of Coelho, supra, for example,
the alien had already had an opportunity to fully present and litigate his
request for discretionary relief from deportation under section 212(c) of the
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Act, 8 U.S.C. § 1182(c) (1988). He sought a remand for further consideration
of the section 212(c) application. We held that “in cases such as this,” reopening should not be granted unless the alien had met the “heavy burden” of
showing that the new evidence presented “would likely change the result in
the case.” Id. at 473.
In another case, Matter of Reyes, 18 I&N Dec. 249 (BIA 1982), the alien
had entered the United States in October of 1968, had been ordered deported
in May of 1970, and had been granted 30 days’ voluntary departure. She did
not depart, but went into hiding and filed a motion to reopen to apply for suspension 9 years later, in July of 1979. We held that “under the factual background of cases such as this, we consider it warranted and reasonable to
require a clear, unambiguous showing of evidentiary support to justify
reopening.” Id. at 251.
Many motions to reopen, however, do not present these special, adverse
considerations. Where an alien is seeking previously unavailable relief and
has not had an opportunity to present her application before the Immigration
Judge, the Board will look to whether there is sufficient evidence proffered to
indicate a reasonable likelihood of success on the merits, so as to make it
worthwhile to develop the issues further at a full evidentiary hearing. See
Matter of Sipus, supra.
The case before us presents none of the more egregious factors present in
such cases as Matter of Coelho, supra, and Matter of Reyes, supra. The
absence of any dilatory tactics in this case is a proper matter for our consideration. See generally Blanco v. INS, supra; Matter of Pena-Diaz, supra.
IV. THE RESPONDENT’S MOTION
With these considerations in mind, we turn now to the question of whether
the respondents in this case have made a prima facie showing of extreme
hardship sufficient to warrant reopening of their deportation proceedings.
We find that such a showing has been made, and we therefore reopen the
proceedings.
As mentioned above, the respondents have remained in the United States
continuously since their entries in 1988 and 1986. The adult respondent now
also has a 6-year-old United States citizen child. The minor respondent has
now lived here for most of her life. In support of the motion to reopen, the
respondents filed individual applications for suspension of deportation. The
applications are supported by affidavits, letters, and other documentation. An
affidavit submitted by the adult respondent states that she would be unable to
get a job comparable to the one she has in this country, because the economic
situation in Nicaragua is “unbearable.” The affidavit also states that her
daughter would suffer extreme hardship upon deportation because she has
lived in this country since the age of 6, speaks English better than Spanish,
and “feels as American.” The respondent further states that her 6-year-old
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citizen son would suffer hardship if he accompanied his mother to Nicaragua
because he also feels American, only speaks English, and now attends
school. Moreover, it is alleged that the medical assistance and economic situation in Nicaragua are “chaotic.”
The adult respondent’s affidavit is not artfully drawn and we note the dissent’s concern over the claim that her 6-year-old son speaks only English.
However, even discounting the alleged language abilities of the citizen child,
we find the affidavit, together with the underlying facts of the case and the
other documentation offered in support of the motion, sufficient to establish a
prima facie case of extreme hardship. Our conclusion is primarily based on
several critical factors.
First, the minor respondent has now lived in this country since the age of 6.
She has essentially grown up in the United States. All her education has been
here. Life in Nicaragua would likely be completely foreign to her now in
every respect. The degree of her integration into the society of the United
States is a proper matter for consideration on remand. See Matter of O-J-O-,
21 I&N Dec. 381 (BIA 1996). Her claim that she does not speak Spanish well
may also be explored at the reopened hearing.
Second, the adult respondent’s citizen child, while still of tender years, has
now begun school. There is nothing in the record to suggest that he could
remain in the United States with another relative or friend, even if his mother
would consider such a course of action.
Third, Nicaragua is an extremely poor country, still in political turmoil,
with a shattered economy, very high unemployment, and minimal government services. The employment prospects for the adult respondent and the
opportunities for further education for the minor respondent and her United
States citizen brother will not simply be less in Nicaragua than in this country: their opportunities will be vastly diminished if they are returned to one of
the poorest countries in the Western Hemisphere.
Fourth, as discussed above, it appears that the respondents have been covered since 1987 by the Nicaraguan Review Program. Under that program,
essentially no Nicaraguan nationals were deported, and virtually all were
granted employment authorization. Even now, work authorization is authorized for those Nicaraguans who have applied for suspension of deportation
and who meet the 7 years’ physical presence requirement for that relief. As
we recognized in Matter of Pena-Diaz, supra, where the Service affirmatively indicates that it does not intend to deport an alien, the alien’s reliance
on that fact can “contribute to the respondent’s other allegations of hardship.”
Id. at 847. This consideration may not necessarily be of particular significance in any given case. However, it is one factor which may be considered in
assessing hardship as a whole. We further note in this regard that the Service
itself has recognized that the Nicaraguans who have lived here for many
years under color of law may face hardship upon their return. See Immigration and Naturalization Service Fact Sheet 5 (June 2, 1995).
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In and of themselves, each of these factors may not have been sufficient to
warrant reopening. Nor will we speculate in this case as to whether the
absence of any one of these factors would or would not have been be fatal to
the motion. However, the facts just mentioned, considered as a whole, convince us that it is worthwhile to develop the extreme hardship issue further at
a full evidentiary hearing before the Immigration Judge.
We caution that this decision is not a determination that the respondents
should be granted suspension of deportation as a matter of law or discretion.
That decision rests with the Immigration Judge after the respondents have
had the opportunity to present all evidence and arguments in favor of their
applications for suspension of deportation.
Accordingly, the motion to reopen will be granted.
ORDER:
The motion to reopen is granted, the proceedings are
reopened, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion, and for the entry of a new
decision.
DISSENTING OPINION: Lauri S. Filppu, Board Member, in which
Fred W. Vacca and Michael J. Heilman, Board Members, joined
I respectfully dissent.
This case involves an adult female respondent, who came here at age 30
and has 8 years’ residence in Florida, and her 15-year-old daughter, who traveled with an aunt and arrived here, ahead of the mother, about 10 years ago at
age 6. This family now includes a 6-year-old United States citizen child. The
respondents would be returning to a poor country, Nicaragua. The family
would experience a reduced standard of living and would encounter the other
difficulties associated with adjustment and readjustment to life in another
society. The majority finds that the respondents have made a prima facie
showing of statutory eligibility for suspension of deportation on the basis of
these circumstances and the existence of the Nicaraguan Review Program.
This Board recognized over 30 years ago that the term “extreme hardship”
is “not a definable term of fixed and inflexible content or meaning. It necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). Indeed, deportation will
involve some hardship to almost every alien, but a wide spectrum of hardships will be encountered depending on the facts of the various cases. The
majority recognizes these principles, but they generously accord weight to
hardship factors which do not rise to the level of extreme.
Further, the majority fails to identify which, if any, of the qualifying persons have made a prima facie showing of extreme hardship. It is not clear
whether the majority finds that the alien respondents and the citizen child
each independently has a reasonable likelihood of suffering extreme hardship in Nicaragua, or whether it finds the hardships to all of the qualifying
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individuals in the aggregate make out a case for reopening. This question,
moreover, is not unimportant in a case that is being issued as guidance for
Immigration Judges and the public. For example, if the adult respondent has
made a showing of hardship to herself that is sufficient for reopening, it is
likely to affect other cases involving aliens who arrived here as adults, have 8
years’ residence here, and would be returning to poor countries.
On the other hand, aggregating the hardships would appear to run contrary
to the mandate of the statute. The extreme hardship requirement is not satisfied by adding together the individual, but not “extreme,” hardships of all
members of a family. There must be at least one person whose individual
hardship can be said to be “extreme,” and who satisfies the affinity requirements of the statute. The majority may mean that the adult respondent’s
motion prevails because of possible hardship to the citizen child, and that the
minor respondent has her own qualifying claim. But if so, the majority ought
to make this clear.
In this respect, section 244(a)(1) of the Immigration and Nationality Act, 8
U.S.C. § 1254(a)(1) (1994), requires that the suspension applicant prove that
her deportation would, “in the opinion of the Attorney General, result in
extreme hardship to the alien or to [her] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” The adult respondent must show extreme hardship to herself or her
citizen child. The minor respondent must show extreme hardship to herself.
Collective family hardship, while relevant as to the exercise of discretion,
does not make out a case for statutory eligibility.
As this case involves a motion to reopen, the precise question before the
Board is whether a prima facie showing of extreme hardship has been made.
The majority does not find that extreme hardship has actually been established here. It only concludes that there is a reasonable likelihood of success,
such that it would be worthwhile to develop the issues at a full evidentiary
hearing. The prima facie case concept evidently has at least two meanings:
1) that the evidence is “sufficient to render reasonable a conclusion in favor”
of the asserted contention, and thereby allow the claim to go to the trier of
fact; and 2) that the “evidence compels” a particular conclusion if the opposing party fails to produce evidence in rebuttal. Black’s Law Dictionary
1189-90 (6th ed. 1990). I understand the majority to be using the first of these
meanings, such that a grant of reopening does not “compel” a finding of
extreme hardship in the absence of contradictory evidence from the Immigration and Naturalization Service.
Nevertheless, the assessment of a “prima facie case of extreme hardship”
is inextricably linked to the meaning of “extreme hardship” itself, even if we
mean that a finding of the requisite hardship is merely reasonable, as opposed
to being compelled, on the strength of the presentation made in the motion.
The concept of a prima facie case must be measured against the ultimate statutory requirement in order to have practical meaning.
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In analyzing the concept of “extreme hardship,” we are instructed by the
actual language of the statute. One of the definitions of the term “extreme” is
“being in a very high degree,” “extending far beyond the norm,” or “of the
greatest severity.” See Webster’s II New Riverside University Dictionary
457-58 (1984); cf. Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996) (Filppu,
dissenting) (offering yet another, similar dictionary definition). The choice
of the word “extreme,” in contrast with other possible adjectives, is consistent with Congress’ goal of limiting the availability of suspension of deportation for aliens who manage to remain here for a number of years or who
acquire ordinary ties to United States citizens, while providing relief for
those who exhibit hardships “far beyond the norm.”
The legislative history of section 244 of the Act, the Board’s practice over
the last two or more decades, and the Supreme Court’s and Congress’
implicit endorsement of a narrow view of the term “extreme hardship” support an interpretation that is consistent with the ordinary meaning of the word
“extreme.” See S. Rep. No. 1137, 82d Cong., 2d Sess. 25 (1952); H.R. Rep.
No. 1365, 82d Cong., 2d Sess. 62-63 (1952), reprinted in 1952 U.S.C.C.A.N.
1653, 1718; INS v. Rios-Pineda, 471 U.S. 44 (1985); INS v. Jong Ha Wang,
450 U.S. 139 (1981); Matter of Ige, 20 I&N Dec. 880 (BIA 1994); Matter of
Kim, 15 I&N Dec. 88 (BIA 1974); Matter of Sipus, 14 I&N Dec. 229 (BIA
1972); see also Matter of O-J-O-, supra (Filppu, dissenting), for a detailed
discussion of the above. Although the Board’s longstanding interpretation of
extreme hardship has not been a generous one, it is consistent with the literal
language of the statute. It is with this benchmark for “extreme hardship” that
I examine whether the respondents have made their case for reopening.
Contrary to the majority, I find that the respondents have not met their burden of showing a reasonable likelihood of extreme hardship either to themselves, or, in the case of the adult respondent, to her United States citizen son.
The respondents have presented unpersuasive, and in one instance, questionable evidence of hardship in support of the motion. The adult respondent
asserts that she would suffer extreme emotional, economic, and political
hardship if she is returned to Nicaragua. She claims that she would be unable
to get a “good job” in Nicaragua like the one she has in this country on
account of her seniority and the adverse economic conditions in her native
country. The adult respondent also alleges that both she and her daughter
would endure such hardship because her daughter, the minor respondent,
came to the United States when she was 6 years old. The mother asserts that
her daughter would suffer extreme emotional hardship because “she is
adapted to the American system and she speak[s] English better than Spanish
and she feels as American.” Further, the mother claims that her son, a United
States citizen, would suffer emotional and economic hardship if he leaves
this country and goes to Nicaragua where the medical assistance and the economic situation are chaotic. Finally, she claims that her son is attending
school and “only speaks English and he feels as American.”
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The record reflects that the adult respondent has been in the United States
since her April 1988 entry. She thus exceeds the statutory 7 years’ continuous
physical presence requirement by only 1 year. She has worked steadily and
has remained with her present employer for 4 years. She attends a church and
has made acquaintances during that time. Further, she gave birth to her son in
this country. She claims that economic conditions in Nicaragua are worse
than in the United States. I find nothing in her motion or in the record which
demonstrates a reasonable likelihood that her deportation would result in personal extreme hardship. She resided in Nicaragua until the age of 30. She was
steadily employed in Nicaragua despite the political turmoil of the time; she
even completed her high school education and had a semester of college. Her
father still resides in her native country. Although her mother and siblings are
in the United States, they do not have lawful status, and she places no reliance
on them in her motion papers. There has been a beneficial change in the political climate in Nicaragua. Although there will undoubtedly be some financial
hardship to the adult respondent as a result of deportation, she offers no evidence to show that it would be severe. Further, I do not find that these factors
either individually or cumulatively demonstrate a reasonable likelihood that
she would personally endure extreme hardship.
In addition, it has not been demonstrated that the adult respondent’s
United States citizen son has a reasonable likelihood of suffering extreme
hardship upon his mother’s deportation. He is 6 years old. I find somewhat
disingenuous the mother’s claim that he “only speaks English” given the
mother’s own lack of English language skills. At the time of her asylum hearing in April 1992, she testified that she did not speak English, and in fact
required a Spanish language interpreter. Her son was then almost 3 years old,
and he must have communicated with his mother, both at that time and for at
least sometime thereafter, in her native tongue, Spanish. I therefore will not
credit this “English language” claim of hardship to the son without further
clarification or an explanation. In any event, he is still young and should be
able to adapt to a new culture and even a “new” language in Nicaragua. His
half-sister, the minor respondent, apparently adapted to the language and culture in this country, when she left her native land at the age of 6, the same age
as is the son today. I recognize there will be some economic disadvantages,
and the medical care and educational opportunities are not likely the same in
Nicaragua. Nonetheless, on this record there is nothing to distinguish this
adult respondent and young citizen child from any other similar parent and
young child who are facing a return to a country experiencing the economic
circumstances of Nicaragua in 1996.
With respect to the minor respondent, I first note that she has been in this
country approximately 10 years. She entered the United States at the age of 6,
has continued to grow up in this country, allegedly speaks English better than
Spanish, and has attended school here. She, more than her mother or brother,
may suffer the greatest immediate hardship upon her return to her native
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country because of the obvious change in lifestyle and culture after 10 formative years in the United States. However, she speaks Spanish, spent her first 6
years in Nicaragua, and is young enough to acculturate herself. The record
noticeably does not contain an affidavit by the minor respondent, who, at age
15 1/2 and having the assistance of counsel, should be able to help explain her
own circumstances. The only evidence presented on the daughter’s behalf is
her suspension application and record of school enrollment. On this record
there is no showing that she will endure severe financial or educational hardships if required to return to her native country. Although the hardships that
would be encountered by the minor respondent are significant, there is insufficient evidence on this record to make a showing of a reasonable likelihood
of extreme hardship.
The respondents do not rely on either the Nicaraguan Review Program or
our decision in Matter of Pena-Diaz, 20 I&N Dec. 841 (BIA 1994), in their
motion papers. They claim no special hardship that arises from any possible
past governmental forbearance in relation to their circumstances. The majority references Pena-Diaz and the Nicaraguan Review Program, and uses
them as favorable discretionary factors. The majority also notes them in relation to hardship, yet it fails to explain how either the Nicaraguan Review
Progam or Pena-Diaz may enhance the respondents’ hardship in this particular case. I would require an affirmative explanation, preferably coupled with
some showing of actual reliance on the Nicaraguan Review Program, before
even speculating on the direct application of Pena-Diaz to the hardship issues
in this case.
In sum, the respondents have shown nothing outside the normal hardship
that is routinely experienced by members of a family that have been here a little over the statutory minimum of 7 years and are returning to one of the
world’s less affluent nations. In my view the respondents have not made a
prima facie case of extreme hardship. Accordingly, I would deny the motion
to reopen.
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