Patricio Hernandez-Cordero and Maria Guadalupe Ortega De Hernandez v. United States Immigration & Naturalization Service

819 F.2d 558, 1987 U.S. App. LEXIS 7828

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 1987
• Docket: 85-4587
• Status: Published

Opinions

W. EUGENE DAVIS, Circuit Judge:

Patricio Hernandez-Cordero and his wife, Maria Guadalupe Ortega de Hernandez, appeal the denial of their application for a suspension of deportation. 8 U.S.C. § 1254(a)(1). We affirm.

I.

Mr. and Mrs. Hernandez are citizens of the Republic of Mexico. They have resided in the United States continuously since they were married in 1975. Mr. Hernandez is a self-employed trim-carpenter contractor and earns approximately $12,000 per year. Mrs. Hernandez is a housewife. The Hernandezes’ assets are valued at approximately $70,000.

The Hernandezes have four children: Victor, age 14, Patricio Jr., age 11, Lisa, age 9 and Veronica, age 8. Victor is a Mexican citizen; the three youngest children are American citizens.

Mr. Hernandez is subject to deportation because he has never obtained a visa. 8 U.S.C. § 1251(a)(1). Although Mrs. Hernandez obtained a visitor’s permit upon her entry to the United States, she is also subject to deportation because she did not depart when it expired. 8 U.S.C. § 1251(a)(2).

Mr. and Mrs. Hernandez applied for a suspension of deportation and contended that they were eligible for discretionary relief because deportation would cause them “extreme hardship.” See 8 U.S.C. § 1254(a)(1). The Hernandezes argued that deportation would cause economic hardship because they would be forced to sell their newly-bought home at a loss and would have difficulty finding work in Mexico. The evidence of economic hardship was supported by an affidavit from an economist who specializes in Latin America. The Hernandezes also argued that deportation would cause emotional and psychological hardship because they would be uprooted from the community to which they had grown accustomed. An affidavit was submitted from a licensed psychologist detailing the emotional difficulties the Hernandez family would likely suffer if deported. Six teachers also submitted affidavits regarding the diminished educational opportunity available in Mexico and the adverse impact this would likely have on the Hernandez children.

After evaluating all of the evidence, the immigration judge denied the application for a suspension of deportation. Although the immigration judge found that deportation would cause hardship for Mr. and Mrs. Hernandez and their children, he found that the hardship was not “extreme.” The immigration judge recognized the economic hardship of selling a newly-bought home at a loss, but concluded that this was a “self-inflicted wound” because the house was built several months after deportation proceedings commenced. The immigration judge also recognized that the employment opportunities in Mexico are not as favorable as those in the United States, but noted that it is well-established that economic hardship alone cannot constitute “extreme hardship.” See, e.g., Zamora-Garcia v. INS, 737 F.2d 488, 491 (5th Cir.1984). Even considering the combined effect of economic hardship with the other potential hardship factors, the immigration judge found that the hardship was not “extreme.” The Hernandezes are young, healthy and have significant family ties in Mexico where their parents and most of their brothers and sisters reside. The immigration judge specifically found that deportation would not cause “extreme hardship” to any of the three American citizen children who, notably, are bilingual.

The Board of Immigration Appeals (BIA) upheld the denial of the application for a suspension of deportation. The BIA evaluated all of the alleged hardships that deportation would cause for the Hernandez family, including the financial hardship, the difficulties of adjusting to life in Mexico, and the educational burden on the children. In affirming the immigration judge’s determination that deportation would not cause “extreme hardship,” the BIA expressly stated that it had “considered all of the factors presented, both individually and cumulatively.”

Mr. and Mrs. Hernandez brought the instant appeal, arguing that the BIA abused its discretion in denying the application for a suspension of deportation. A panel of this court agreed and reversed the BIA, finding that “the mere recitation that all of the factors were considered cumulatively is not sufficient.” Hernandez-Cordero v. INS, 783 F.2d 1266, 1269 (5th Cir.1986). For the reasons that follow, we affirm the determination of the BIA.

II.

Section 244(a)(1) of the Immigration and Nationality Act creates a two-tiered statutory framework for suspension of deportation. 8 U.S.C. § 1254(a)(1). First, eligibility for a suspension of deportation is only available to an alien who: (1) has been physically present in the United States for a continuous period of at least seven years immediately preceding the application; (2) is a person of good moral character; and (3) 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. 8 U.S.C. § 1254(a)(1). The burden is on the alien to establish his eligibility for a suspension of deportation. Gomez-Martinez v. INS, 593 F.2d 10 (5th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979).

Second, even if these eligibility requirements are satisfied, the Attorney General retains the discretion to suspend, or refuse to suspend, deportation. INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (1985). As a corollary to this ultimate discretion to deny relief to an otherwise eligible alien, the Supreme Court has explained that “if the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met.” Id. at 2102.

The standard of review varies depending on which aspect of the statutory scheme is at issue. Under the first tier, we review the BIA’s findings of continuous residency and good moral character under the “substantial evidence” test. Zamora-Garcia, 737 F.2d at 490. A BIA finding regarding the “extreme hardship” requirement is reviewed under the more limited “abuse of discretion” standard. Id.

The standard of review is exceedingly narrow for the Attorney General’s ultimate decision under the second tier of the statute. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). The Attorney General enjoys “unfettered” discretion to decide whether to suspend the deportation of an alien. Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 924, 100 L.Ed. 1242 (1956). It has been said that the ultimate decision whether to suspend deportation “is a matter of grace,” similar to a Presidential pardon. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.1950) (L. Hand). See also, United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957). Judicial review of such a highly discretionary decision is strictly limited because the subject is uniquely within the competence and power of the political branches. See Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1477; Mathews v. Diaz, 426 U.S. at 81-82, 96 S.Ct. at 1892.

The Attorney General’s power under the Act has been delegated to the Commissioner of Immigration and Naturalization who in turn has redelegated the authority to specified INS personnel. 8 C.F.R. § 2.1. The specific power to rule on applications for suspensions of deportation has been delegated to immigration judges,¹ 8 C.F.R. § 242.8, whose decisions are subject to review by the BIA. 8 C.F.R. § 242.21. The BIA’s authority similarly derives from the Attorney General. 8 C.F.R. §§ 3.0, 3.1.

In the instant case, Mr. and Mrs. Hernandez challenge the BIA’s determination under the first tier of the statute that, “in the opinion of the Attorney General,” deportation would not cause “extreme hardship.” The INS has stipulated that Mr. and Mrs. Hernandez have good moral character and satisfy the seven year residency requirement.

The Hernandezes’ argument on appeal is twofold. First, they seek substantive review of the BIA’s narrow definition of “extreme hardship.” Second, they seek procedural review of the BIA’s alleged failure to analyze the relevant hardship factors both individually and cumulatively. We reject both of these arguments in turn.

III.

The Supreme Court has recognized the broad discretion of the BIA to narrowly define “extreme hardship.” INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). In Wang, a Korean family alleged that deportation would result in “extreme hardship” to their two American born children because neither child spoke Korean. Id. at 142, 101 S.Ct. at 1030. Although the BIA found that the family had failed to demonstrate a prima facie case of “extreme hardship,” the Ninth Circuit disagreed, reasoning that the statute should be liberally construed. Id. at 143, 101 S.Ct. at 1030. The Supreme Court reversed and held that the Ninth Circuit had “improvidently encroached on the authority which the Act confers on the Attorney General and his delegates.” Id. at 144, 101 S.Ct. at 1031. The Court explained that “the Act commits [the] definition [of extreme hardship] 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.” Id. at 144, 101 S.Ct. at 1031. The Court emphasized 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. at 145, 101 S.Ct. at 1031.

In a series of post-Wang decisions, we have consistently adhered to a limited standard of review over the BIA’s authority to define “extreme hardship” and deny eligibility for a suspension of relief. See, e.g., Ganjour v. INS, 796 F.2d 832, 839 (5th Cir.1986); Zamora-Garcia, 737 F.2d at 490; Ramos v. INS, 695 F.2d 181, 185 (5th Cir.1983). Although we often state the standard of review of this determination by the BIA as an “abuse of discretion” standard, Zamora-Garcia, 737 F.2d at 490, those terms do not fully convey the extent to which deference is due in reviewing the substance of the BIA’s determination that the hardship is not “extreme.” Our latitude to review the BIA’s determination of “extreme hardship” by the “abuse of discretion” standard depends on the scope of the BIA’s discretion in the first instance. Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.1984). In evaluating the extent of the BIA’s discretionary authority, we have previously stated that:

In view of Wang’s language concerning the authority of the Attorney General to define “extreme hardship” and to construe it narrowly, we doubt that there remains much, if any, scope for judicial' substantive review, even under an “abuse of discretion” standard, of no “extreme hardship” determinations.

Ramos, 695 F.2d at 185 (emphasis in original).

Substantive review of a no “extreme hardship” determination is strictly limited for two interrelated reasons. First, the statute expressly qualifies the definition of “extreme hardship” as being “in the opinion of the Attorney General.” 8 U.S.C. § 1254(a)(1). The BIA, as the Attorney General’s delegate, is therefore empowered to decide what constitutes “extreme hardship” and to apply that standard to each individual case. 8 U.S.C. § 1103; 8 C.F.R. § 2.1. See also Wang, 450 U.S. at 140, 101 S.Ct. at 1029. Second, the statute declares that the hardship must be “extreme,” a highly subjective standard that is difficult, if not impossible, to review. The BIA is therefore doubly-insulated from substantive review of a finding of no “extreme hardship”: it is not only empowered to formulate its own opinion of what is “extreme,” but to utilize that opinion to define a highly subjective term.²

The nature of the two-tiered statutory scheme designed by Congress bolsters our view that substantive review of a no “extreme hardship” determination is strictly limited. We read the Attorney General’s express Congressional authority to use his “opinion” to define “extreme hardship,” 8 U.S.C. § 1254(a)(1), as similar to the Attorney General’s express Congressional authority to use his “discretion” to determine whether to ultimately suspend deportation. 8 U.S.C. § 1254(a). The Supreme Court has defined the latter as “unfettered” discretion, Jay v. Boyd, 351 U.S. at 354, 76 S.Ct. at 925, and we see no reason why the Attorney General’s discretion to determine extreme hardship should not be equally unfettered. By creating a two-tiered system of discretion, Congress intended the threshold criteria to “restrict the opportunity for discretionary” relief, not expand it. INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 592, 78 L.Ed.2d 401. The Congressional intent was to limit the number of aliens eligible for discretionary relief; it was not meant to increase the number of eligible aliens only to have the Attorney General use his “unfettered” discretion to ultimately deny relief.³ After all, the Attorney General may freely pretermit the eligibility factors and deny a suspension of deportation, subject to virtually no substantive review. INS v. Rios-Pineda, 105 S.Ct. at 2100.

In sum, the language of the statute, the historical nature of the remedy of suspension of deportation and the holdings of the Supreme Court, our court and other circuit courts leads us to conclude that a court has an exceedingly narrow substantive review of the BIA’s determination of no “extreme hardship.”⁴ We are persuaded that in the substantive review of a no "extreme hardship" determination, we are entitled to find that the BIA abused its discretion only in a case where the hardship is uniquely extreme, at or closely approaching the outer limits of the most severe hardship the alien could suffer and so severe that any reasonable person would necessarily conclude that the hardship is extreme. Measured against this standard, the DIA did not abuse its discretion in finding that the hardship facing the Hernandezes in Mexico was not "extreme."

Iv.

Although a court has virtually no substantive review of the BIA's "extreme hardship" finding, we may still scrutinize the BIA's decision for procedural regularity. We recently clarified that this procedural review "is limited to ascertaining whether any consideration has been given" by the BIA to the factors establishing "extreme hardship." Sanchez v. INS, 755 F.2d 1158, 1160 (5th Cir.1985) (emphasis in original). In Sanchez we affirmed the denial of a suspension of deportation because the BIA did not "utterly fail" to give consideration to the factors pertinent to a determination of "extreme hardship." Id. We reasoned that a procedural review that focuses on whether the petitioner's claims of hardship have been adequately considered should be strictly limited because "we .. lack the authority to determine the weight, if any, to be afforded each factor." Id. at 1160.

The BIA will ordinarily satisfy its procedural responsibilities by demonstrating that it has considered all the relevant factors of an "extreme hardship" determination, both individually and collectively. Luciano-Vincente v. INS, 786 F.2d 706, 708-09 (5th Cir.1986); Ganjour v. INS, 796 F.2d 832, 840 (5th Cir.1986). "It has no duty to write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Osuchukwu v. INS, 744 F.2d at 1142-43.

Both the immigration judge and the BIA considered all of the relevant hardship factors in this case, and they both concluded that they were not "extreme." The BIA specifically stated that it "considered all of the factors presented, both individually and cumulatively." Although the panel opinion was critical of the BIA's lack of analysis on the cumulative effect of the Hernandezes' individual claims of hardship, we see little else on this record the BIA could have said on the subject. Petitioner points to no independent factor created by the synergistic effect of the combination of hardship claims that requires separate consideration and discussion. The BIA therefore did not "utterly fail" to consider the relevant hardship factors. Sanchez, 755 F.2d at 1160. On the contrary, the BIA analyzed each factor and then concluded that even when analyzed cumulatively, the hardship was not "extreme."

V.

The question in this case is not whether the Hernandezes are honest, dependable, hardworking members of society. They clearly are. Any of us would be happy to see them gain citizenship. But Congress in its wisdom has determined that this is not enough to avoid deportation under 8 U.S.C. § 1254(a)(1). To be eligible for this discretionary relief, aliens with the highest character and strictest work ethic must also establish that they will "in the opinion of the Attorney General" suffer "extreme hardship" if deported. Thus the only issue in this case is whether the record demonstrates that the BIA, as the Attorney General’s delegate, abused its discretion in finding that the Hernandezes will not suffer “extreme hardship” if deported to Mexico. The record in this case simply does not reveal such an abuse of discretion. Indeed, we would expect any hardworking aliens who are deported to an economically deprived country after enjoying a high standard of living in this country for seven years to suffer hardship similar to that demonstrated by the Hernandezes. In short, we see no unique hardship or unusually severe hardship that the Hernan-dezes will suffer if they are deported to Mexico that approaches the level of hardship required to compel a finding of “extreme hardship” by the BIA.

Accordingly, the order of the BIA denying the application for a suspension of deportation is

AFFIRMED.

1 . Although the regulations state that the power is delegated to "special inquiry officers,” 8 C.F.R. § 242.8, that term is used interchangeably with the title "immigration judge.” 8 C.F.R. § 1.1.

2 .The dissent asserts that our analysis conflicts with previous interpretations of the phrase "in the opinion of which utilized a more rigorous standard of review than we use here. But in this case, unlike the cases cited by the dissent, the Attorney General’s authority is doubly-insulated from judicial review: he is directed to formulate his opinion as to what constitutes "extreme” hardship. None of the cases cited by the dissent involves statutes that authorize the formulation of an opinion about the definition of such a highly subjective term.

3 . The fact that Congress has reserved for itself the right to veto a grant of discretionary relief, but not a denial, is further evidence that Congress meant to narrow the availability of the relief, not expand it. See 8 U.S.C. § 1254(c).

4 . The authorities do not support the argument that less deference is due the Attorney General’s opinion if the opinion is reached by the Attorney General’s delegate rather than the Attorney General personally.

In INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 201, 50 L.Ed.2d 190 (1976), the Supreme Court upheld the Attorney General's ultimate authority to deny a suspension of deportation. The opinion in Bagamasbad makes it clear that the initial discretion to deny a suspension of deportation was exercised by an immigration judge and that this determination was affirmed by the BIA. Even though the initial decision to deny a suspension of deportation in Bagamasbad was made by the Attorney General's delegates, and not by the Attorney General himself, the Court did not alter the rule that the ultimate decision to deny a suspension of deportation is to be accorded "unfettered discretion." See Jay v. Boyd, 351 U.S. at 354, 76 S.Ct. at 925. Similarly in the instant case, we see no reason why the determination of no "extreme hardship" should be accorded less deference merely because the initial decision was made by the Attorney General's delegates, and not by the Attorney General himself.