Dragon v. Immigration & Naturalization Service

748 F.2d 1294
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 3, 1984
DocketNo. 83-7338
StatusPublished

This text of 748 F.2d 1294 (Dragon v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dragon v. Immigration & Naturalization Service, 748 F.2d 1294 (9th Cir. 1984).

Opinion

REINHARDT, Circuit Judge:

Dragon petitions for review of the decisions of the Board of Immigration Appeals (BIA) denying her application for permission to reapply nunc pro tunc for admission into the United States and her motion to reopen deportation proceedings. For the reasons stated below, we reverse and remand for further proceedings.

I

Beatriz Jose Dragon is a 35-year old native and citizen of the Philippines. She first entered the United States in 1969 as a visitor and later changed her status to spouse of a nonimmigrant student.1 On May 15, 1974, an Immigration Judge found her deportable for staying in the Unitp ’ States longer than authorized and gr¿ntil Dragon 30 days voluntary depart June 15, 1974.

„ of voluntary One day before her Paragon married departure was to States citizen. Wilfred Dragon.n June 19j 1974) she re-Five days lat'philippines. Her husband immediate relative visa petition on ,1 6 oehalf, and she reentered the country asP the wife of a United States citizen on September 6, 1975.

On April 9, 1976, the INS initiated deportation proceedings against Dragon, [1306]*1306charging that her marriage to Wilfred Dragon was a sham and that her 1975 reentry into the United States was therefore illegal. See 8 U.S.C. §§ 1251(a)(1), 1182(a)(14), (20) (1982). At the deportation hearing, the INS further claimed that Dragon was deportable because her 1975 reentry into the United States was without the permission of the Attorney General. The basis of the added charge was that Dragon’s previous départure from the United States four days after her 1974 grant of voluntary departure expired resulted in self-deportation, see 8 C.F.R. § 243.5 (1984), and she was therefore required to obtain the permission of the Attorney General in order to reenter the country. See 8 U.S.C. § 1182(a)(17) (1982); 8 C.F.R. § 212.2 (1984). Dragon admitted the added charge and sought permission to reapply nunc pro tunc for admission into the United States.2

The Immigration Judge found that the INS had failed to establish that Dragon’s marriage to Wilfred Dragon was a sham, but nevertheless found Dragon deportable based on her admission that she had reentered the United States without the permission of the Attorney General. The Immigration Judge denied Dragon’s application to reapply nunc pro tunc and granted her fluntary departure. The BIA affirmed.

the cT(9n subsequently moved to reopen December^011 proceedings based on her ningham a {^marriage to Terrance Cunthat deportation4 $tates citizen’3 alleging hardship to herself' hi result in extreme children. The BIA denielasband’ and her reopen. Dragon timely pet,lm0^°a t0 court for review of both decisions ed ™1S

II

An alien who seeks to reapply nunc pro tunc for admission into the United States has the burden of establishing that he or she merits a favorable exercise of discretion. See In re Vorrias, 12 I. & N.Dec. 84, 85 (BIA 1967); see also Patel v. INS, 741 F.2d 1134, 1136 (9th Cir.1984) (suspension of deportation). We review the denial of an application for permission to reapply only for an abuse of discretion. Murillo-Aguilera v. Rosenberg, 351 F.2d 289, 290 (9th Cir.1965).

We have held that the BIA, in determining whether to grant other forms of discretionary relief, is required to weigh all factors presented, both favorable and unfavorable. See, e.g., De La Luz v. INS, 713 F.2d 545, 546 (9th Cir.1983) (per curiam) (suspension of deportation). In such proceedings, the stated reasons for denying relief must reflect the BIA’s consideration of all relevant factors. Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984); Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983) (per curiam). Moreover, the BIA is required to consider the cumulative effect of all emotional and economic hardship factors presented, see Prapavat v. INS, 662 F.2d 561, 562-63 (9th Cir.1981) (per curiam), and render a reasoned decision reflecting such consideration. Reyes v. INS, 673 F.2d 1087, 1089 (9th Cir.1982) (motion to reopen). Mere conclusory statements are inadequate. Batoon v. INS, 707 F.2d 399, 401 (9th Cir.1983).

The considerations underlying these important safeguards apply with equal force to the BIA’s decisions whether to grant permission to reapply for admission to the United States. In deciding whether to grant such relief, the BIA must, as in other cases involving discretionary relief, consider expressly all relevant factors presented and issue a reasoned decision reflecting such deliberation. This rule applies in the '"áse of nunc pro tunc applications as well.

Among the factors the BIA has found relevant in cases involving applications for permission to reapply are the following: (1) [1307]*1307the applicant’s ignorance of the need to reapply for admission because he was unaware that he had been deported; (2) the reason the alien was originally deported; (3) the length of time the applicant has legally resided in the United States; (4) his or her moral character; (5) his or her family responsibilities; and (6) hardships resulting from deportation. See In re Lee, 17 I. & N.Dec. 275, 277-78 (Comm.1978); In re Tin, 14 I. & N.Dec. 371, 373-74 (R.C.1973); see also In re Rapacon, 14 I. & N.Dec. 375, 378 (R.C.1973).

In this case, Dragon stated that she believed her 1974 departure from the United States, four days late, had been voluntary and was thus unaware that she had self-deported and needed the permission of the Attorney General to reenter the country. She was originally deported because she had remained in the country beyond the period authorized by her visa and not because of any criminal or other wrongful conduct. Moreover, by granting Dragon voluntary departure, the Immigration Judge implicitly found that she was of good moral character. See 8 U.S.C. § 1254

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