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9th District: Santana-Figueroa v. INS

9th District: Santana-Figueroa v. INS

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Federal & State Cases, Combined2008-01-26 16-17-1
Federal & State Cases, Combined2008-01-26 16-17-1

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Published by: Amy on Sep 14, 2008
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Jorge SANTANA-FIGUEROA, Petitioner, v. IMMIGRATION ANDNATURALIZATION SERVICE, Respondent.No. 79-7691UNITED STATES COURT OF APPEALS, NINTH CIRCUIT644 F.2d 1354; 1981 U.S. App. LEXIS 13452November 5, 1980, ArguedMay 11, 1981, DecidedSUBSEQUENT HISTORY: [**1]
As Corrected May 19, 1981.
PRIOR HISTORY:
Petition to Review a Decision of the Board of Immigration Appeals.
CASE SUMMARY:PROCEDURAL POSTURE:
Petitioner, a citizen of Mexico residing in the United States, sought review of a decisionof the Board of Immigration Appeals finding him ineligible for discretionary relief from deportability, asserting that hewould suffer "extreme hardship" if deported, pursuant to 8 U.S.C.S. § 1254(a)(1).
OVERVIEW:
Petitioner was a 70 year-old citizen of Mexico who had resided in the United States for nearly 14 years.An immigration judge ordered deportation. Petitioner conceded deportability, but asserted that he was entitled todiscretionary relief because deportation would cause him extreme hardship, pursuant to 8 U.S.C.S. § 1254(a)(1). The judge found petitioner ineligible for relief because his hardship was based primarily on speculative economic factors.The Board of Immigration Appeals (BIA) agreed. Petitioner sought review by this court. The court reversed, findingthat petitioner demonstrated the "extreme hardship" required by 8 U.S.C.S. § 1254(a)(1) to be entitled to relief. Thecourt explained that although the BIA had discretion to rule, it abused its discretion by ruling arbitrarily because it failedto consider all of petitioner's circumstances, including the fact that petitioner proved he would be unable to findemployment upon returning to Mexico because of his age. The court also held that the BIA neglected to considerpetitioner's noneconomic sources of hardship in its determination, namely that petitioner would be uprooted from hiscommunity and close friends if deported.
OUTCOME:
The court reversed and remanded, holding that petitioner was entitled to discretionary relief fromdeportation. The court reasoned that petitioner met the statutory requirements for relief because he demonstrated hewould suffer both economic and noneconomic "extreme hardship" if returned to Mexico.
CORE TERMS:
hardship, alien, detriment, deportation, noneconomic, immigration, exercise of discretion,disregarded, severe, unable to find, abuse of discretion, eligibility, foreclosing, irrational, livelihood, distorted, earning,germane, church, years old, discretionary, unemployment, uneducated, unskilled, skill
LexisNexis(R) Headnotes
 Immigration Law > Deportation & Removal > Relief > Suspension of Deportation
[HN1] Congress has given the Attorney General discretion to suspend deportation of certain deportable aliens to prevent"extreme hardship." 8 U.S.C.S. § 1254(a) (1).Page 1
 
 Immigration Law > Deportation & Removal > Relief > Suspension of Deportation
[HN2] To qualify for relief, the alien must establish continuous physical presence in the United States for seven years,good moral character, and extreme hardship to himself or to a spouse, parent, or child who is a citizen or permanentresident of the United States. 8 U.S.C.S. § 1254(a)(1).
 Immigration Law > Judicial Review > Scope of Review
[HN3] The court's task is to review the Board of Immigration Appeals exercise of discretion. The Board may construe"extreme hardship" narrowly, but the exercise of discretion must not be arbitrary, irrational or contrary to law.
 Immigration Law > Judicial Review > Scope of Review
[HN4] Because hardship depends on specific circumstances, discretion can be properly exercised only if thecircumstances are actually considered. When important aspects of the individual claim are distorted or disregarded,denial of relief is arbitrary.
 Immigration Law > Judicial Review > Scope of Review
[HN5] The Board of Immigration Appeals abuses its discretion if it is unduly influenced by factors that are not germaneto the eligibility requirements set out in 8 U.S.C.S. § 1254(a), or fails to consider important facts that are germane to thestatutory purpose.
 Immigration Law > Deportation & Removal > Relief > General Overview
[HN6] Difficulty in finding employment or inability to find employment in one's trade or profession is also meredetriment, relevant to a claim of hardship but not sufficient to require relief.
 Immigration Law > Deportation & Removal > Relief > Suspension of Deportation Immigration Law > Judicial Review > Scope of Review
[HN7] No alien has an absolute right to suspension of deportation under 8 U.S.C.S. § 1254(a)(1), and an alien seekingrelief must have more to offer than a bare allegation. But when allegations are specific and supported by evidentiarymaterial, and the Board of Immigration Appeals denies eligibility for relief, it must give reasons for its decisionsshowing that it has properly considered the circumstances.
COUNSEL:
Dennis W. Campbell, Los Angeles, Cal., for petitioner.Katherine V. Tooks, Los Angeles, Cal., for respondent.
JUDGES:
Before WRIGHT and TANG, Circuit Judges, and HANSON, Senior District Judge.
** Of the Northern and Southern Districts of Iowa.
OPINION BY:
WRIGHT
OPINION[*1355]
A 70 year-old citizen of Mexico has resided in the United States nearly 14 years as a responsible, law-abiding,taxpaying, church-going member of his community. Uneducated and unskilled, he has been employed as a maintenanceman and has used his meager earnings to support both his family in Mexico and himself without public assistance. Heconcedes deportability but asserts that deportation would cause him extreme hardship, not only severing his ties to thecommunity but also rendering him unable to find any employment.An immigration judge found the petitioner ineligible for discretionary relief, not because he had failed to show anyhardship but because "(h)is hardship is bottomed primarily on economic factors."
1
Employing similar reasoning, adivided Board of Immigration Appeals dismissed
[**2]
the petitioner's appeal.Page 2644 F.2d 1354, *; 1981 U.S. App. LEXIS 13452, **1
 
1 At the time of the initial decision, the petitioner was 67 years old and had been in the United States 11 years. The circumstances were notmaterially different.
I. Principles of Review
[HN1] Congress has given the Attorney General discretion to suspend deportation of certain deportable aliens toprevent "extreme hardship." 8 U.S.C. § 1254(a) (1)
2
"These words are not self-explanatory, and ... the Act commitstheir definition in the first instance to the Attorney General and his delegates ...." INS v. Wang, 450 U.S. 139, 101 S. Ct.1027, 1031, 67 L. Ed. 2d 123 (1981) (per curiam).
32 [HN2] To qualify for relief, the alien must establish continuous physical presence in the United States for seven years, good moralcharacter, and extreme hardship to himself or to a spouse, parent, or child who is a citizen or permanent resident of the United States. 8U.S.C. § 1254(a)(1).3 Wang, unlike this case, involved a motion to reopen after deportation had been ordered. The Board had already "considered the factsalleged and found" no hardship. -- - U.S. at -- , 101 S. Ct. at 1031.
[**3]
[HN3]Our task is to review the Board's exercise of discretion. Foti v. INS, 375 U.S. 217, 221, 84 S. Ct. 306, 309, 11 L. Ed. 2d281 (1963); Bastidas v. INS, 609 F.2d 101, 104 (3d Cir. 1979); Asimakopoulos v. INS, 445 F.2d 1362, 1365 (9th Cir.1971). The Board may construe "extreme hardship" narrowly, Wang, 450 U.S. 139, 101 S. Ct. at 1031, but the exerciseof discretion must not be "arbitrary, irrational or contrary to law." Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1979).
44 See also Chokloikaew v. INS, 601 F.2d 216, 218 (5th Cir. 1979) (exercise of discretion must not be "arbitrary or capricious") (quotingPaul v. INS, 521 F.2d 194, 197 (5th Cir. 1975)).
[*1356]
[HN4] Because hardship depends on specific circumstances, Banks v. INS, 594 F.2d 760, 762 (9th Cir.1979), discretion can be properly exercised only if the circumstances are actually considered. When important aspectsof the individual claim are distorted or disregarded, denial of relief is arbitrary.
5
Without prescribing any final result,we
[**4]
must remand such cases for proper consideration.
5 [HN5] The Board abuses its discretion if it is unduly influenced by "factors that are not germane to the eligibility requirements set out inthe Act," Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1979), or fails to consider important facts that are germane to the statutory purpose.Tovar v. INS, 612 F.2d 794, 797 (3d Cir. 1980). See also Bastidas v. INS, 609 F.2d 101, 104 (3d Cir. 1979) (special inquiry officer failed toconsider noneconomic hardship).
II. Asserted Hardship to the PetitionerA. Economic Sources of Hardship
Page 3644 F.2d 1354, *1355; 1981 U.S. App. LEXIS 13452, **2

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