Dong Hyung Lee v. Immigration & Naturalization Service ( 1977 )

GOODWIN, Circuit Judge:

Dong Hyung Lee appeals an order of the Board of Immigration Appeals which denied relief from a deportation order.

Lee, a native of Korea, entered the United States in 1965 as a visitor. The following year, he applied for permanent residence but his application was denied. In 1969, Lee was ordered to appear before a deportation hearing, but failed to do so. In 1971, Lee’s wife entered the United States as a student, and in 1972 he again sought adjustment of his status. His request was again denied, and he was ordered deported. Lee did not seek voluntary departure, nor did he report for deportation. He appealed. In August 1973, Lee’s wife gave birth to an American citizen. Lee bought a store and his income increased. In 1974, Lee applied for a suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), and sought to reopen his deportation proceedings. He relied upon the grounds that he had lived in this country for over seven years, was of good moral character, was the father of an American-born child, was the proprietor of his own business, and that deportation would create extreme hardship to his family.

In March 1975 Lee’s motion to reopen deportation proceedings was denied. In April 1975, Lee filed another motion to reopen deportation, and in May 1975 this motion was denied. In June 1975, Lee filed this petition for review to this court under Section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a.

This court’s review is limited to the question whether the Board has abused its discretion. Hun Chak Sun v. Immigration and Naturalization Service, 415 F.2d 791 (9th Cir. 1969), cert. denied, 397 U.S. 908, 90 S.Ct. 905, 25 L.Ed.2d 89 (1970); Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 346 (9th Cir. 1969). See also, Siu Fung Luk v. Rosenberg, 409 F.2d 555 (9th Cir.), cert. dismissed, 396 U.S. 801, 89 S.Ct. 2151, 24 L.Ed.2d 58 (1969).

An alien illegally present in the United States cannot gain a favored status merely by the birth of his citizen child. Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222, 1224 (5th Cir. 1975). The possibility of inconvenience to the citizen child is not a hardship of the degree contemplated by the statutory language of extreme hardship. Mendez v. Major, 340 F.2d 128 (8th Cir. 1965). In view of the relative ease with which aliens can enter this country as students or visitors and then delay their departure long enough to produce citizen children, the proposition urged by this petitioner would virtually do away with the limitations imposed by Congress upon immigration.

Here, the alien mother was brought into the country as a student some three years after Lee knew of his impending deportation. This does not appear to be the kind of fact situation that should cause the Immigration Service to exercise its discretion in the manner demanded by the petitioner, much less one that requires us to treat the action as an abuse of discretion.

The case is not substantially improved by the claim of economic hardship. Financial loss is not synonymous with extreme hardship. See Blanco-Dominquez v. Immigration and Naturalization Service, 528 F.2d 382, 383 (9th Cir. 1975); Nishikage v. Immigration and Naturalization Service, 443 F.2d 904 (9th Cir. 1971); Llacer v. Immigration and Naturalization Service, 388 F.2d 681 (9th Cir. 1968). Economic disadvantage has been consistently rejected by this court as a basis to compel a finding of extreme hardship. Fong Choi Yu v. Immigration and Naturalization Service, 439 F.2d 719 (9th Cir. 1971).

Virtually all of Lee’s acquisitions of property and investment in his business enterprise occurred after he was under valid deportation orders. To reward him now would elevate thrift and industry above immigration policy, and would provide a blueprint for any like-minded alien to enter the country as a visitor and stay indefinitely. Such a result would also be an affront to those overseas aliens who are abiding by the law and waiting with whatever patience they can muster for an opportunity to enter legally as a permanent resident. We find no abuse of discretion.

The order of the Board is affirmed.