Luna-Rodriguez v. INS ( 1997 )

UNITED STATES COURT OF APPEALS Filed 1/6/97
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A.
Shumaker
Clerk Chief Deputy Clerk
January 6, 1997
TO: All recipients of the captioned opinion
RE: No. 95-9551, Luna-Rodriguez v. Immigration & Naturalization Service
January 3, 1997
Please be advised of the following correction to the captioned decision:
The last line of the opinion contains the phrase “if AFFIRMED.” It should read
“is AFFIRMED.”
Please make the appropriate correction.
Very truly yours,
Patrick Fisher, Clerk
Susan Tidwell
Deputy Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
Filed 1/3/97
TENTH CIRCUIT
RAUL LUNA-RODRIGUEZ,
SOSTENES LUNA-SALGADO,
Petitioners,
No. 95-9551
v.
IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.
ON PETITIONS FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
(BIA Nos. A73 372 973 and A73 372 974)
Submitted on the briefs:
Anthony J. Garcia, for Petitioners.
Joan E. Smiley, Senior Litigation Counsel, Madeline Henley, Office of
Immigration Litigation, Civil Division, Department of Justice, Washington, D.C.,
for Respondent.
Before EBEL and HENRY, Circuit Judges, and DOWNES, * District Judge.
*
Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
EBEL, Circuit Judge.
Petitioners Raul Luna-Rodriguez and Sostenes Luna-Salgado, husband and
wife, are natives and citizens of Mexico who entered the United States without
inspection in 1986. See 8 U.S.C. § 1251(a)(1)(B). They petition for review of a
final order of deportation by the Board of Immigration Appeals (Board). We have
jurisdiction under 8 U.S.C. § 1105a(a). We affirm the Board’s decision, and deny
the petition for review. 2
The Lunas applied for and were denied relief under § 244 of the
Immigration and Nationality Act, which gives the Attorney General discretion to
suspend deportation and admit for permanent residence an alien who: (1) has
been physically present in the United States for at least seven years; (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). Even if these
statutory prerequisites are satisfied, the Attorney General retains discretion to
2
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
-2-
suspend, or refuse to suspend, deportation. INS v. Rios-Pineda, 471 U.S. 444,
446 (1985). The immigration judge (IJ) denied suspension of deportation in this
case because the Lunas failed to demonstrate seven years’ continuous physical
presence in the United States, or that they would suffer extreme hardship if
deported. Admin. R. at 35-36.
On appeal, the Board affirmed the IJ’s decision, determining on its own
reasoning that the Lunas failed to show they would suffer extreme hardship if
deported. Id. at 2-4. The Board noted that, at the time of its decision, Mr. and
Mrs. Luna were 36 and 39 years old, respectively. Mr. Luna had worked for
several years as a mason, and Mrs. Luna was a child care provider. Both had
several close relatives in Mexico. They also had a few relatives residing in the
United States, but none that qualified under § 1254(a)(1). 3 As a result, the Lunas
were required to demonstrate extreme hardship through themselves alone to
establish their eligibility for suspension of deportation. Mr. and Mrs. Luna both
claimed they would be unable to find work in Mexico. The Board found that the
Lunas’ “residence in this country is not so lengthy nor their family ties so
extensive that their deportation would amount to extreme hardship.” Admin. R. at
3
At the time of the Board’s decision, the Lunas’ only child, a
daughter, was married and living here, but she was neither a citizen nor a lawful
permanent resident. Their permanent resident son-in-law and United States
citizen granddaughter do not come within the language of § 1254(a)(1), which is
construed strictly. INS v. Hector, 479 U.S. 85, 88-90 (1986).
-3-
4. The Board further found “that these middle-aged, employable respondents,
who are in good health and have no one depending upon them for support, have
not shown that the economic and emotional difficulties that they would
experience upon deportation can be characterized as extreme hardship.” Id. The
Board concluded that the Lunas were not eligible for suspension of deportation
under § 1254(a)(1) because they had failed to establish extreme hardship, and that
it was therefore unnecessary to determine whether the Lunas had shown seven
years’ continuous physical presence in the United States.
In this petition for review, the Lunas argue that: (1) the Board abused its
discretion by failing to consider all of the factors relevant to the determination of
extreme hardship; (2) the IJ abused his discretion when he found that they had
failed to show seven years’ continuous physical presence in the United States; and
(3) the IJ distorted or disregarded important aspects of their claim, resulting in an
arbitrary denial of relief. Because the Board reviewed the case de novo, we
review only the Board’s decision and not that of the IJ. Rubio-Rubio v. INS, 23
F.3d 273, 274 n.1 (10th Cir. 1994); cf. Panrit v. INS, 19 F.3d 544, 546 (10th Cir.
1994) (holding that when Board relies on express reasoning of IJ, court of appeals
reviews only that reasoning). As a result, we do not reach the Lunas’ second or
third issues.
-4-
We review the Board’s determination that the Lunas failed to establish
extreme hardship only for abuse of discretion. Turri v. INS, 997 F.2d 1306, 1308
(10th Cir. 1993). The words “extreme hardship . . . 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 [her] delegates.”
INS v. Wang, 450 U.S. 139, 144 (1981) (per curiam). Several nonexclusive
factors are relevant to the determination of extreme hardship: “the alien’s age;
the length of his residence in the United States; his family ties in the United
States and abroad; his health; the economic and political conditions in the country
to which he may be returned; his financial status, business, or occupation; the
possibility of other means of adjustment of status; his immigration history; and
his position in the community.” Matter of Ige, Int. Dec. 3230, 1994 WL 520996,
at 3 (BIA Sept. 16, 1994). These factors must be considered in the aggregate. Id.“‘[W]e may . . . scrutinize the [Board’s] decision for procedural regularity,’”
Turri, 997 F.2d at 1308 (quoting Hernandez-Cordero v. United States INS, 819
F.2d 558, 563 (5th Cir. 1987)), but our substantive review of a no “extreme
hardship” determination would allow us to find an abuse of 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
-5-
reasonable person would necessarily conclude that the hardship is extreme,”
Hernandez-Cordero, 819 F.2d at 562-63.
The Lunas do not point out what specific factor the Board supposedly
overlooked. The crux of their argument, rather, is that they will be completely
unable to find work in Mexico and that this, by itself, demonstrates extreme
hardship. We note that this allegation is not supported by any evidence. See,
e.g., Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1211-12 (9th Cir. 1983) (holding
unsupported allegations insufficient to establish inability to find employment if
deported or to trigger Board’s duty to consider personal hardships resulting from
unemployment); Santana-Figueroa v. INS, 644 F.2d 1354, 1357 & n.8 (9th Cir.
1981) (holding alien seeking suspension of deportation must offer more than
“bare allegation” of extreme hardship); Pelaez v. INS, 513 F.2d 303, 304-05 &
n.1 (5th Cir. 1975) (rejecting unsupported claim that petitioner would be unable
to find suitable work if deported). Therefore, we find their argument to be
without merit.
Moreover, the inability to find work, without more, does not establish that
the Board abused its discretion in finding no “extreme hardship.” “[I]t is only
when other factors such as advanced age, severe illness, family ties, etc. combine
with economic detriment to make deportation extremely hard on the alien or the
citizen or permanent resident members of his family that Congress has authorized
-6-
suspension of the deportation order.” Matter of Anderson, 16 I. & N. Dec. 596,
598 (BIA 1978). That is not the case here.
A narrow interpretation of “extreme hardship” is consistent with the
structure and legislative history of the statute. See Hernandez-Patino v. INS, 831
F.2d 750, 752-53 (7th Cir. 1987); Hernandez-Cordero, 819 F.2d at 562. Although
Congress supplied the suspension remedy for aliens who enter this country
illegally, the eligibility requirements themselves, and the nearly “‘unfettered’
discretion” accorded the Attorney General to deny suspension even when they are
met, see id. (quoting Jay v. Boyd, 351 U.S. 345, 354 (1956)), indicate that
Congress intended this dispensation rarely to be bestowed. The Supreme Court
has previously upheld the Board’s narrow interpretation of “extreme hardship,”
because “a narrow interpretation is consistent with the ‘extreme hardship’
language, which itself indicates the exceptional nature of the suspension remedy.”
Wang, 450 U.S. at 145.
The decision of the Board of Immigration Appeals is AFFIRMED, and the
petition for review is DENIED.
-7-