Hee Yung Ahn and Kyung Hee Ahn v. Immigration & Naturalization Service

651 F.2d 1285
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 30, 1981
Docket79-7062
StatusPublished
Cited by17 cases

This text of 651 F.2d 1285 (Hee Yung Ahn and Kyung Hee Ahn 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.

Bluebook
Hee Yung Ahn and Kyung Hee Ahn v. Immigration & Naturalization Service, 651 F.2d 1285 (9th Cir. 1981).

Opinions

SNEED, Circuit Judge:

The Ahns seek suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), arguing that they will suffer extreme hardship if deported. An immigration judge and the Board of Immigration Appeals considered their claim and concluded that they had not shown extreme hardship. The Ahns petitioned this court for review of the Board’s order under 8 U.S.C. § 1105a. We decline to disturb the order denying suspension of deportation.

Mr. and Mrs. Ahn entered the United States from Korea as non-immigrants in 1967 and 1965 respectively. They have two children, both of whom were born in the United States. The Immigration and Naturalization Service instituted deportation proceedings against them in 1974. The Ahns conceded deportability but applied for suspension of deportation. Under section 244(a)(1) the Attorney General may suspend deportation of an alien who has been in the [1286]*1286United States for seven years, is a person of good moral character, and shows that deportation would result in extreme hardship. Following a hearing, an immigration judge found that the Ahns had not established extreme hardship and the Board affirmed.

The Ahns’ primary argument is that their son Shane’s eye condition makes it extremely hard on them to return to Korea. The bulk of their oral presentation to the immigration judge and their briefs to the Board and this court were devoted to this argument. Their evidence consisted of a letter from a doctor stating that Shane is being treated for far-sightedness and a statement by Mr. Ahn that Shane’s condition is worse in the summer. Mr. Ahn told the immigration judge that it would be an extreme hardship on Shane to move to Seoul because it is hotter in Seoul than in Los Angeles in the summer. The immigration judge suggested to Mr. Ahn that Shane’s eye problems might be exacerbated by the extremely smoggy conditions typical of Los Angeles summers rather than by heat. He directed the Ahns’ counsel to present some medical evidence that Shane’s condition would be adversely affected by deportation. None was presented at a hearing five months later.

The Ahns also argued that Mr. Ahn’s political activity as a college student would make it difficult for him to get a job in Korea. A few minutes of the oral presentation to the immigration judge were devoted to this issue. Mr. Ahn does not claim that he would suffer persecution, a ground for withholding deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h). He stated, rather, that a friend from his college days who was a member of his circle told him that he might have difficulty getting a job. In response to his attorney’s questions, Mr. Ahn further stated that his friend had a job in Korea and that the government has not pressured his friend. Upon eliciting this testimony, Mr. Ahn’s attorney dropped this line of questions.

The Board reconsidered these arguments, as well as the Ahns’ claim that forcing them to leave this country would cause them to suffer extreme hardship because they are now accustomed to American ways of life. In its summary paragraph the Board concluded:

Our review of the record leads us to conclude that the respondents have failed to demonstrate that “extreme hardship” will be incurred by them or their children if deported to Korea. The respondents are in their forties and in apparent good health. The prospect of “cultural shock,” a lower standard of living, and diminished job opportunities are faced by nearly every alien who is forced to leave the United States. This type of detriment alone does not amount to “extreme hardship.” See Kasravi v. INS, 400 F.2d 675 (9 Cir. 1968). The uprooting of their citizen children and the probable liquidation of their real estate holdings are additional factors to be considered but they are not conclusive. See Lee v. INS, 550 F.2d 554 (9 Cir. 1977). Finally, the evidence thus far presented concerning the son’s eye ailment does not convince us that he will experience the degree of medical hardship that would warrant suspending deportation of his parents, (emphasis added)

The Board has broad discretion in determining what constitutes extreme hardship. In INS v. Wang,-U.S.-, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), the Supreme Court summarily reversed an en banc decision of this court because we substituted our opinion of what constitutes extreme hardship for that of the Board. The Court stated:

[T]he 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 [1287]*1287because it may prefer another interpretation of the statute.

101 S.Ct. at 1031. The Court went on to note that: “The Attorney General and his delegates have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the ‘extreme hardship’ language, which itself indicates the exceptional nature of the suspension remedy.” Id.

The petitioners claim that the Board made three different errors. They style their claims as arguments that the Board committed procedural errors in an attempt to evade Wang.1 First, the petitioners claim that the Board failed to consider their long duration in this country, IIV2 and 13 years. However, the Board in its decision, issued in 1978, noted that Mrs. Ahn was first admitted in 1965 and Mr. Ahn was first admitted in 1967. The extreme hardship issue cannot arise under section 244(a)(1) unless the deportable alien has been in the country for at least seven years. It is not clear why the additional time these petitioners have spent in this country should be entitled to any weight. While unhelpful to the Ahns, it is relevant to note that much of the additional time has been spent avoiding deportation. Mr. Ahn had only been in this country for eight years when the Immigration and Naturalization Service began their investigation in 1975. And, as the report of that investigation and the immigration judge both concluded, the Ahns had managed to stay that long only because they had deceived the Service.

Second, the petitioners pluck the word “alone” from the conclusion of the Board, printed above, and state that the Board erred by failing to consider the factors cumulatively rather than in isolation. This is not how we read the paragraph. The Board first noted that the Ahns are in good health. It then noted that if deported they would face a lower standard of living, a common situation that “alone” does not constitute extreme hardship.

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Related

L-O-G
21 I. & N. Dec. 413 (Board of Immigration Appeals, 1996)
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20 I. & N. Dec. 915 (Board of Immigration Appeals, 1994)
Hurn Bu Roe v. Immigration & Naturalization Service
771 F.2d 1328 (Ninth Circuit, 1985)

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Bluebook (online)
651 F.2d 1285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hee-yung-ahn-and-kyung-hee-ahn-v-immigration-naturalization-service-ca9-1981.