Alejandro Ravancho and Zenaida Ravancho v. Immigration and Naturalization Service

658 F.2d 169, 1981 U.S. App. LEXIS 18210

• Court: Court of Appeals for the Third Circuit
• Decided: August 26, 1981
• Docket: 79-2646
• Status: Published

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case is before us on rehearing before the original panel following our exercise of our discretionary authority to recall the certified judgment issued in lieu of mandate, an action which we take only in “unusual circumstances.” American Iron and Steel Institute v. EPA, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978). We followed that practice in this case so that we could consider the contention of respondent Immigration and Naturalization Service that our original decision is contrary to the subsequent decision of the Supreme Court in INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). On consideration of the parties’ additional briefs and oral arguments, we believe that the primary basis for our original decision, that the Board abused its discretion in refusing to reopen the record to consider psychiatric data not available during previous hearings, is not foreclosed or undermined by the Wang decision, and we once again conclude a remand to the Board of Immigration Appeals is appropriate.

Zenaida Ravancho and her husband, Alejandro Ravancho, are both citizens of the Philippines who entered the United States on November 7, 1968 and December 19, 1968 respectively. On December 10, 1969, their daughter Patricia was born in the United States. Zenaida and Alejandro Ravancho were authorized to remain in the United States until February 7, 1974, but remained beyond their authorized stay and were charged with being deportable under 8 U.S.C. § 1251(a)(2) (1976). At the hearings before the immigration judge on February 1, 1978 and on March 15, 1978, the Ravanchos conceded deportability and sought to establish that deportation should be suspended on the ground of “extreme hardship” as provided for in 8 U.S.C. § 1254(a)(1) (1976).¹

The Ravanchos proved, inter alia, that they are both presently employed; that they have had stable employment records, Mr. Ravancho having been employed as an engineering aide by the Wallace & Tiernan Company of Belleville, New Jersey, since December 1969, and Mrs. Ravancho having been employed by the New Jersey Bell Telephone Company as a keypunch operator since 1970; and that they have purchased a house in New Jersey. They sought to show economic hardship to them which would ensue if they were deported. They also sought to establish hardship to their child (then 8 years old) by their testimony at the hearing on March 15, 1978 that she knows no other life than that in the United States, is unable to speak the Philippine language, was a straight A student in school, and that her “life would be dramatically upset by being uprooted from her home, friends, and the only life she knows.” 1

On October 24, 1978, the immigration judge denied the Ravanchos’ applications for suspension of deportation. The judge concluded that the Ravanchos met the physical presence and good moral character requirements for relief under that statute, but had failed to satisfy their statutory burden of showing that extreme hardship would result. He stated:

A careful review of all the facts as presented including the difficulties the respondents would have in attempting to obtain employment in their native Philippines, their family situation, the loss of the income that they have now in the United States and the possible transfer of their United States citizen child to relocate in the Philippines does not appear to satisfy the burden placed upon them to show that they would suffer extreme hardship under this Section of the law. Such economic disadvantage does not constitute the required statutory hardship. (emphasis added).

The Ravanchos’ appeal to the Board of Immigration Appeals was dismissed on June 14, 1979. The Board held that the immigration judge properly found that the economic detriment the Ravanchos might suffer if deported to the Philippines would not amount to extreme hardship within the purview of the statute. The Board further stated in affirming the decision of the immigration judge: “We also find that their United States citizen child, born less than one year after her mother’s arrival in this country as a nonimmigrant visitor, would not suffer extreme hardship.”² The Ravanchos filed a Motion to Stay Deportation and to Reopen Proceedings on July 31, 1979.³ They attached to that motion a psychiatric evaluation of Patricia dated July 17, 1979, which had been made to evaluate the effect on Patricia’s mental, physical and emotional stability of a return to the Philippines. They also filed an affidavit where they averred, as they had previously testified, that Mrs. Ravancho had a brother and sister who are both lawful permanent residents of the United States and that Mr. Ravancho has a sister who is also a lawful permanent resident of the United States.

The Board appeared to treat the petition as one for reconsideration rather than reopening. Although it did not at any time state that the evidence presented failed to meet the requirements of the regulation which limits reopening to cases where the evidence sought to be offered is material and was unavailable at the time of the former hearing, 8 C.F.R. § 3.2, it failed to rule directly on the request for reopening. Instead it denied reconsideration on the ground that the psychiatrist’s report did not demonstrate the “extreme hardship” required by the statute. It was that denial which was the subject of the petition for review before this court.⁴

In our original decision, we held that a remand to the Board was appropriate because the Board

appears to have considered the proffered psychiatrist’s report in isolation, only in terms of whether, on its own, that report sufficed to demonstrate extreme hardship within the statutory terms. This is contrary to the requirement that the decision whether to suspend deportation must be made on a consideration of all relevant factors. The psychiatrist’s report may well have been the increment which would have tipped the balance toward suspension. There is no indication in the Board’s opinion that it evaluated the proffered evidence on this basis.

We also stated that the Board appeared to give too little weight to the psychological burden on Patricia, a factor that the immigration judge had erroneously subsumed in his discussion of “economic disadvantage”. We concluded our observations with the statements:

We recognize that the determination of whether petitioners have shown extreme hardship to warrant suspension of deportation is entrusted to the discretion of the immigration judge and Board, in the first instance. However, we hold that petitioners have produced evidence which, on its face, is relevant to that determination and which must be considered by the agency in the exercise of its discretion, (footnote omitted).

The thrust of the respondent’s position on rehearing is that “[t]he decision in this case is incorrect because this court substituted its own judgment for that of the Board of Immigration Appeals in determining what will constitute extreme hardship warranting suspension of deportation,” Respondent’s Brief on Rehearing, p. 7, and thus is contrary to I.N.S. v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), decided after this court’s original decision. Therefore our inquiry must focus upon the Supreme Court’s Wang decision to determine whether it requires us to reverse our previous disposition remanding this matter to the Board.

Before undertaking that analysis, we feel compelled to comment upon one aspect of the dissenting opinion. As we noted in our recitation of the facts, the immigration judge found that the Ravanchos established that they met “the good moral requirements of the statute”, a finding the government has not challenged before us. Notwithstanding that finding, the dissenting judge has chosen to rehash the same facts which were before the immigration judge, whose ultimate finding as to the Ravanchos’ good character reflects his acceptance of their explanation. It is therefore regrettable that the dissenting judge has chosen to castigate petitioners with no criminal record at all for “their sordid past conduct” and “deceptive conduct”⁵ and, perhaps worst of all, invites the Board to take note of conduct which its own immigration judge found did not reflect adversely upon the Ravanchos.

We turn to the consideration of the Wang decision. The Wang case involved denial by the Board of a second petition to reopen filed by the petitioners, aliens who had overstayed their authorization. The Wangs had originally been unsuccessful in seeking adjustment of status under § 245 of the Act, and then filed the second motion to reopen their deportation proceedings, this time seeking suspension under § 244 of the Act. Their motion alleged that deportation would cause both economic harm to themselves and “extreme hardship to respondents’ two American-born children because neither child spoke Korean and would thus lose ‘educational opportunities’ if forced to leave this country.” INS v. Wang, 101 S.Ct. at 1030. The Board found the Wangs had failed to present a prima facie case warranting reopening and denied their motion without a hearing. The Court of Appeals for the Ninth Circuit reversed, finding that the Wangs had alleged a sufficient prima facie case of extreme hardship to entitle them to a hearing.

In reversing the Ninth Circuit, the Supreme Court stated:

The Court of Appeals erred in two respects. First, the court ignored the regulation which requires the alien seeking suspension to allege and support by affidavit or other evidentiary material the particular facts claimed to constitute extreme hardship. Here, the allegations of hardship were in the main conclusory and unsupported by affidavit. By requiring a hearing on such a motion, the Court of Appeals circumvented this aspect of the regulation, which was obviously designed to permit the Board to select for hearing only those motions reliably indicating the specific recent events that would render deportation a matter of extreme hardship for the alien or his children.

Secondly, and more fundamentally, the Court of Appeals improvidently encroached on the authority which the Act confers on the Attorney General and his delegates. The crucial question in this case is what constitutes “extreme hardship.” These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well-settled that a mere showing of economic detriment was insufficient to satisfy the requirements of § 244 and in any event noted that respondents had significant financial resources while finding nothing to suggest that Mr. Wang could not find suitable employment in Korea. It also followed that respondents’ two children would not suffer serious economic deprivation if they returned to Korea. Finally, the Board could not believe that the two “young children of affluent, educated parents” would be subject to such educational deprivations in Korea as to amount to extreme hardship. In making these determinations, the Board was acting within its authority. As we see it, nothing in the allegations indicated that this is a particularly unusual case requiring the Board to reopen the deportation proceedings.

The Court of Appeals nevertheless ruled that the hardship requirement of § 244 is satisfied if an alien produces sufficient evidence to suggest that the “hardship from deportation would be different and more severe than that suffered by the ordinary alien who is deported.” Wang v. INS, supra, 622 F.2d [1341] at 1346 [(9th Cir.)]. Also, as Judge Goodwin observed in dissent, the majority of the Court of Appeals also strongly indicated that respondents should prevail under such an understanding of the statute. Id., at 1352. In taking this course, the Court of Appeals extended its “writ beyond its proper scope and deprived the Attorney General of a substantial portion of the discretion which § 244(a) vests in him.” Id., at 1351 (Sneed, J., 'dissenting from the opinion).

Id. at 1030-31 (footnotes omitted).

The Court noted that the Attorney General and his delegates have the authority to construe the statutory standard of “extreme hardship” narrowly should they deem it wise to do so. The Court also noted that the standard established by the Ninth Circuit, by mandating a hearing upon “quite minimal showings”, was contrary to the Government’s “legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new and meritorious considerations.” Id. at 1031.

We perceive substantial differences between the Wang case and that at issue here. In the first place, this case does not suffer from the first factor stressed by the Supreme Court, the failure of the Wangs to allege and support by affidavit or other evidentiary material “the particular facts claimed to constitute extreme hardship.” On the contrary, in this case the Ravanchos filed the necessary affidavit and proffered as evidentiary material the psychiatric evaluation which related to “the particular facts claimed to constitute extreme hardship.” Unlike the Wangs who apparently proffered merely a conclusory allegation about a general loss of educational opportunities for their children in Korea, the Ravanchos proffered specific evidence relating to a particular child.

We turn then to the more fundamental question of whether a decision by this court to remand constitutes an encroachment on the authority conferred by the Act on the Attorney General. The respondent views our original decision to remand as based on our observations with respect to the Board’s construction of “extreme hardship”. As shown by the previously quoted excerpts from our prior opinion, however, the primary basis for our original decision to remand was the failure of the Board to consider the newly proffered evidence in conjunction with that previously submitted in order to determine whether the circumstances justified exercise of the Board’s discretion. It is not necessary to speculate whether our previous observations about the Board’s narrow construction of “extreme hardship”, which appeared to us to be inconsistent with Congressional intent,⁶ would withstand scrutiny following the Wang decision, since our order granting rehearing withdrew the original opinion. In any event, as petitioners correctly note, those comments were not the ground on which we determined remand was appropriate. Instead, our decision then and now turns on the Board’s action, when presented with material evidence previously unavailable, in considering such evidence in isolation in determining whether a prima facie case for reopening was established.

In this respect, this case differs markedly from Wang where there was no contention that the Board failed to consider the totality of all of the evidence presented before it. There, the only issue was the substantive evaluation to be given such evidence. The opinion of the Board in this case expressly indicates that reconsideration was denied only on the basis of an analysis of the newly proffered evidence. We express no view on the procedure to be followed by the Board where the petition merely seeks reconsideration based on rearguments with regard to evidence previously submitted. But where, as in this case, petitioners seek to reopen proceedings based on evidence which on its face showed it was not previously available,⁷ then we believe the Board abused its discretion in failing to consider the cumulative effect of that evidence. In fact, at the oral argument before us, counsel for the respondent stated that it was the Board’s position that in deciding whether there is a prima facie basis for reopening, the Board must consider all of the evidence, not merely the newly proffered evidence. Although counsel also suggested that we should conclude that the Board in fact followed that procedure, it is conceded that there is nothing in the Board’s short statement that indicates that anything other than the newly proffered evidence was considered. The Board, after referring to the psychiatric report, stated “This is not the type of extreme hardship necessary for a grant of suspension of deportation and, accordingly, we will deny the respondents’ request for reconsideration.” (emphasis added). We must make our decision based on the Board’s own articulation of its actions, rather than on the assumption of or reconstruction by its counsel.

Although respondent argues that the psychiatric evaluation does not demonstrate “severe hardship”, we do not understand it to dispute the general proposition that psychological trauma may be a relevant factor in determining whether a United States citizen child will suffer “extreme hardship” within the statute. Thus, had this or any other relevant factor been disregarded by the immigration judge or the Board when the original determination was made, such action would constitute an abuse of discretion. See, e. g., Lukens Steel Co. v. Klutznick, 629 F.2d 881 (3d Cir. 1980); Mobil Oil Corp. v. Department of Energy, 610 F.2d 796 (Em.App.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). Similarly, if petitioners present a petition to reopen with evidence which is material and was previously unavailable, and the substantive determination is one which must be made on the basis of a consideration of all of the relevant factors, a refusal to reopen would be justified only if the Board found that the cumulative effect of the new evidence could not have affected the decision. No such finding was made in this case.

Decisions as to what circumstances constitute “extreme hardship” require delicate balancing, and are rarely made by the Board on the basis of a single factor alone. In its decisions on this issue, the Board has referred to a variety of factors. See, e. g., In Matter of Louie, 10 I. & N. Dec. 223 (1963); In Matter of M_, 5 I. & N. Dec. 448 (1953); In Matter of T_, 3 I. & N. Dec. 707 (1949). Indeed in this case, the Ravanchos may have been somewhat disadvantaged because the immigration judge inexplicably erroneously mischaracterized the state of the record by his statement that the Ravanchos have no close relatives in the United States.⁸ As the respondent now concedes in its brief, “Mrs. Ravancho has a brother and sister who are lawful permanent residents of the United States, and Mr. Ravancho has a brother [sic] who is a lawful permanent resident.” Respondent’s Brief on Rehearing, p. 12. Mr. Ravancho’s sister lives in New Jersey, as do the Ravanchos. Id. In fact the record indicates they lived in adjoining towns at the time of the 1978 hearing. Respondent concedes that “close family ties and the interest in keeping families together are considerations in granting or denying applications for suspension,” id. at 12, but argues that the facts do not suggest that deportation in this case will adversely affect close family relationships. Whether that is so is not a determination to be made either by this court or the Board’s counsel. It is one to which the immigration judge patently did not give any weight, in light of his mistaken statement that there were no such relatives in the United States, and it is one which the Board did not address because it limited its consideration to the psychiatric evaluation alone.

The Board has expressed the concern that a requirement that it review all prior evidence with each succeeding motion, no matter how insubstantial, would impose an unnecessary burden on the Board. We are not unaware of nor unsympathetic to the Board’s problems in processing the substantial caseload before it. However, since the regulations themselves limit petitions to reopen to cases where there is material new evidence previously unavailable, 8 C.F.R. § 3.2, the Board itself has limited its reopening to preclude insubstantial motions.

We read the Supreme Court’s Wang decision as reiterating the basic precept, which our prior opinion had also referred to, that Congress entrusted to the Attorney General, and not to the courts, discretion to determine whether a petitioner has shown extreme hardship to warrant suspension of deportation. We do not read that decision as foreclosing all judicial review regarding such matters, since such review is expressly provided in the statute. 8 U.S.C. § 1105a (1976). While the scope of such review may be narrow, it extends at least to a determination as to whether the procedure followed by the Board in a particular case constitutes an improper exercise of that discretion. This court has previously held that where the record contains uncontradicted affidavits showing grounds for a suspension of deportation and yet lacks any reasoned evaluation by the INS of these grounds, an order to reopen is proper. Martinez de Mendoza v. INS, 567 F.2d 1222, 1224 (3d Cir. 1977). We view this case in the same light.

Accordingly, we will grant review of the order of the Board and remand so that the Board can determine whether, taking into consideration all of the relevant factors on this record, the facts set forth in the psychiatric evaluation could not have affected the substantive decision on the petition for suspension of deportation, and whether reopening would be appropriate.

1 . Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), provides in part:

Suspension of deportation

(a) Adjustment of status for permanent residence; ... As hereinafter prescribed in this section, the 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 under any law of the United States except the provisions specified in paragraph (2) of this subsection; 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 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 ....

2 . According to the record before us, the Ravanchos’ daughter was born more than a year after her mother’s arrival in the United States. Furthermore, the date of the child’s birth more than ten years ago is patently unrelated to her current hardship.

3 . Applications to reopen proceedings after the entry of the deportation order are usually required to be filed before the immigration judge. 8 C.F.R. § 242.22 (1981). If the order has already been appealed, jurisdiction lies with the Board of Immigration Appeals to rule upon the motion to reopen. 8 C.F.R. § 3.2 (1981).

4 . This court has jurisdiction to review a denial of a motion to reopen proceedings before the Board of Immigration Appeals pursuant to 8 U.S.C. § 1105a. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), rev’g 308 F.2d 347 (9th Cir. 1962); Bufalino v. INS, 473 F.2d 728, 730 (3d Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). In such a case, our scope of review is limited to whether the Board abused its discretion. Jacote v. INS, 578 F.2d 42, 45 (3d Cir. 1978).

5 . All persons who have overstayed their visa, and therefore seek suspension of deportation under 8 U.S.C. § 1254(a)(1), as well as those who have entered illegally, have by one act or other “deceived” our administrative officials. In recognition that such “deception” represents merely an avid and irrepressible desire to remain and live in this country, Congress has enacted the statute in question, the former Chief Executive has granted entry to more than 125,000 illegal entrants, see, Pres. Determination No. 80-16, 45 Fed.Reg. 28,079 (1980) (Cuban refugees), and the present administration has proposed a plan which would grant amnesty for many illegal aliens in this country before January 1, 1980. See Immigration Plan Includes Amnesty, Tighter Controls, Wash. Post, July 31, 1981, at 1.

6 . A 1957 House Report refers to the Congressional intent “to provide for liberal treatment of children.” See H.R.Rep.No.1199, 85th Cong., 1st Sess. 7, reprinted in [1957] U.S.Code Cong. & Ad.News, 2016, 2020. In view of the grounds of our disposition of this case, we need not decide whether the effect of the Wang decision is to preclude all appellate consideration of the Board’s determination whether a particular petitioner has demonstrated the requisite “extreme hardship.” See generally Brathwaite v. INS, 633 F.2d 657, 659-60 (2d Cir. 1980). We note that the statute does not explicitly so provide, in contrast to other statutes where Congress has expressly committed certain determinations to unreviewable agency discretion. See, e. g„ 38 U.S.C. § 211(a) (1976) (decisions regarding veteran’s benefits).

7 . The psychiatric evaluation was made July 17, 1979 and referred to the drop in Patricia’s grades during the school year which had just ended. This occurred substantially after the original hearing conducted by the immigration judge on March 15, 1978.

8 . The immigration judge stated:

The issue to be resolved is whether the deportation of the respondents who have no close relatives in the United States would constitute extreme hardship within the contemplation of the statute, (emphasis added) The immigration judge’s statement is particu-

larly inexplicable in light of the fact that the relevant facts were presented not only in a document which might have been overlooked but by petitioners’ testimony before that very judge that Mrs. Ravancho has a permanent resident brother in active service in the United States Navy, that she has a sister who is resident in the United States, and that Mr. Ravancho has a sister who is a lawful permanent resident of the United States. In fact, the immigration judge’s erroneous statement that the Ravanchos had no close relatives permanently resident in the United States was twice corrected by the petitioners at the hearing. Nonetheless, the report of the immigration judge again repeated the erroneous statement. The correct facts were again stated in the Ravanchos’ affidavit on reopening, which set forth the following status of the family as of that date: Zenaida Ravancho’s brother continues as a lawful permanent resident in military service, and has two children born in the United States. Her sister is a lawful permanent resident married to a United States citizen. Alejandro Ravancho’s sister is a lawful permanent resident.