Sebastian Diaz-Salazar v. Immigration and Naturalization Service, and the Board of Immigration Appeals , 72 A.L.R. Fed. 120 ( 1983 )

CUDAHY, Circuit Judge.

Petitioner Sebastian Diaz-Salazar (“Diaz-Salazar”) asks us to review the Board of Immigration Appeals’ (“BIA”) denial of his petition to stay deportation and to reopen deportation proceedings. Two consolidated petitions are before us: No. 82-1130, a petition for review of an oral denial of a motion to stay deportation, and No. 82-1610, a petition to review the denial of Diaz-Salazar’s motion to reopen proceedings to consider whether his deportation should be suspended on grounds of extreme hardship pursuant to section 244 of the Immigration Act, 8 U.S.C. § 1254 (1976). The Immigration and Naturalization Service (“INS”) also has filed a motion to dismiss the petition in No. 82-1130 for lack of jurisdiction and to reprimand petitioner’s counsel and assess double costs. We grant the petition to dismiss No. 82-1130, but deny the motion to reprimand and assess costs. In No. 82-1610, we hold that the BIA did not abuse its discretion in denying petitioner’s motion to reopen.

I.

Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. The Immigration and Naturalization Service moved to deport him in September of 1980, and at an October hearing he was granted voluntary deportation within 90 days. Diaz-Salazar appealed the decision to deport him to the Board of Immigration Appeals and requested a joint hearing with the woman whom he considered to be his common-law wife.¹ The BIA denied this appeal on February 4,1981, and on March 27, the INS set the date of deportation for April 22, 1981. On April 3, 1981, Diaz-Salazar filed a petition for review with this court and obtained a stay of deportation pursuant to 8 U.S.C. § 1105a(a)(3) (1976).

By late May, Diaz-Salazar had acquired seven years residence in the United States and thus became eligible to apply for suspension of deportation on grounds of extreme hardship pursuant to section 244 of the Immigration Act, 8 U.S.C. § 1254.² In the months of June and July, he divorced his Mexican wife and legally married the woman with whom he had been living in Chicago. On August 6, 1981, he filed an application to suspend deportation pursuant to section 244, and on August 7, 1981, his previous petition before this court was dismissed as moot.

During the pendency of Diaz-Salazar’s application to suspend deportation, the INS ordered him to report for deportation on December 17, 1981. On December 16, he filed an application to stay the deportation and a motion to reopen deportation proceedings before the administrative law judge. His attorney also filed for a temporary restraining order and for a writ of habeas corpus in federal district court. Judge Leighton denied this relief, however, on the grounds that Diaz-Salazar had failed to exhaust administrative remedies. A stay was 'granted by the administrative law judge, however, until a decision was reached upon his motion to reopen. That motion was denied, in turn, on January 6, 1982, on the ground that Diaz-Salazar had failed to make a prima facie showing of extreme hardship; and the stay was lifted. Diaz-Salazar appealed this denial to the BIA on January 15.

During the pendency of this appeal, the INS set January 29, 1982 as a new date for deportation. However, the INS apparently had not transmitted the record in the case to the BIA at this time; thus the BIA could not move forward expeditiously with the appeal. Diaz-Salazar’s counsel therefore telephoned the BIA on January 25 to request a stay of deportation, but this request was orally denied. Counsel also filed a petition for habeas corpus, but it was denied by Judge Leighton on the grounds that the district court had no jurisdiction to review the ease. On January 26, counsel filed a petition to review the oral denial of the motion to stay deportation, one of the two petitions which are before us for review (No. 82-1130). On March 30,1982, the BIA formally denied Diaz-Salazar’s motion to reopen, on the grounds that he had failed to establish a prima facie case that he would be able to obtain suspension of deportation pursuant to section 244. This denial is also before us for review (No. 82-1610), pursuant to 8 U.S.C. § 1105a(a). We shall consider these two petitions and the accompanying motion to dismiss in order.

II.

No. 82-1130

Our jurisdiction to review orders of the BIA is limited by 8 U.S.C. § 1105a(a) to “final orders of deportation.” A denial of a stay of deportation is not such a final order. Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Reyes v. INS, 571 F.2d 505 (9th Cir.1978). This court does not, therefore, have jurisdiction to review the oral denial of a request for the stay of deportation at issue in No. 82-1130.

Although this petition must therefore be dismissed on relatively straightforward jurisdictional grounds, we do not think that the filing of the petition is adequate grounds to sanction petitioner’s attorney. Counsel was attempting vigorously to represent the interests of his client at a time when the INS was moving to deport him during the pendency of a statutorily provided appeal. Had he been deported, that appeal to the BIA would have been moot. Counsel thus essayed several routes to stay deportation of his client pending a final determination of his substantive case under section 244. At argument, the government conceded that the district court’s denial of Diaz-Salazar’s petition for a writ of habeas corpus on jurisdictional grounds was probably incorrect. Thus, the proper appellate route may well have been to appeal that denial to us. But this jurisdictional issue had not been presented in exactly this posture in this circuit before, and there is no reason to assume that the proper course should have been immediately apparent to counsel. We thus deny the motion to reprimand and to assess costs, while granting the petition to dismiss No. 82-1130 for lack of jurisdiction.

III.

No. 82-1610

A denial of a motion to reopen deportation proceedings is, on the other hand, a final order of deportation and thus reviewable by this court. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964). We will not overturn a decision of the BIA denying such a motion, however, absent an abuse of discretion. Kashani v. INS, 547 F.2d 376 (7th Cir.1977); Tupacyupanqui-Marin v. INS, 447 F.2d 603 (7th Cir. 1971).

In order to prevail in a motion to reopen deportation proceedings for consideration under the extreme hardship standard of section 244, an alien must establish a prima facie case of eligibility for relief under that section of the Immigration Act. INS v. Wang, 450 U.S. 139, 141, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1980). Thus, unless Diaz-Salazar presented a prima facie case that he would be subjected to extreme hardship of the sort contemplated by section 244, the BIA was entirely within its allowable discretion in denying his petition to reopen. Moreover, the Wang case instructs us that the application of the extreme hardship standard in an individual case is a task allotted primarily to the INS and not to the courts. Id. at 144, 101 S.Ct. at 1031. Although the agency must consider all relevant factors in making its determination, there is no evidence here that the INS has failed to do so or that the agency abused its discretion in concluding that the facts of this case did not place it within the category defined as extreme hardship by the case law.

The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. He also has relatives in Mexico. Petitioner has a good job in Chicago and presumably, due to his lack of formal education and current economic conditions in Mexico, would have a difficult time finding similarly good employment in Mexico. Deportation would be very disruptive of the life which he and his second wife have built in Chicago, as well as psychologically distressing to them.³ Considering all of these factors, however, we are nonetheless constrained to conclude that the BIA was within its discretion in finding that petitioner would not succeed in obtaining suspension of deportation under section 244 and ■ in therefore denying his motion to reopen.

It is well established that economic hardship by itself does not constitute extreme hardship under section 244. See, e.g., Mendoza-Hernandez v. INS, 664 F.2d 635, 638 (7th Cir.1981). Moreover, economic conditions in an alien’s homeland are not a dispositive factor in a suspension hearing. See, e.g., Bueno-Carrillo v. Landon, 682 F.2d 143, 147 (7th Cir.1982). Even the Ninth Circuit cases decided after the Wang decision, upon which petitioner relies, require that some factor beyond the general misery attendant upon deportation present itself in order to justify relief under the extreme hardship standard. Prapavat v. INS, 662 F.2d 561 (9th Cir.1981) (health problems of child); Santana-Figueroa v. INS, 644 F.2d 1354 (9th Cir.1981) (advanced age of petitioner); Mejia-Carrillo v. INS, 656 F.2d 520 (9th Cir.1981) (separation of teenage son from divorced father and from completion of high school).

In the case at hand, no special circumstances are presented sufficient to bring petitioner’s situation within the extreme hardship standard. His children are still of pre-school age and thus less susceptible to the disruption of education and change of language involved in moving to Mexico. There are no unique reasons why petitioner, in comparison with the many other Mexicans in his situation now resident in the United States, will be unable to find employment upon returning to Mexico or why he or any member of his immediate family requires health care available only here. Thus, although we recognize the unhappy prospects which the petitioner faces, we cannot hold that the BIA abused its discretion in denying the petitioner’s motion to reopen deportation proceedings.⁴

The petition for review is hereby

Dismissed.

1 . Diaz-Salazar in fact was separated from a wife and two children whom he had left in Mexico in 1974. Thus the woman with whom he lived in Chicago and by whom he had two children bom here was not his wife, although he seems to have considered her so. His attorney was not aware of the marriage in Mexico until he began to prepare the Petition for Suspension of Deportation.

2 . Section 244, 8 U.S.C. § 1254, provides that an alien who has been present in the United States for seven years and is of good moral character may apply for suspension of deportation on grounds of extreme hardship to himself or to his spouse or family members who are U.S. citizens or residents.

3 . Petitioner urges that the BIA abused its discretion in not reopening to consider testimony submitted by a social worker to this effect. We have considered the material contained in an affidavit submitted by this social worker and find it merely to be cumulatively supportive of the facts already described herein.

4 . We are not insensitive to the fundamental human concerns raised in Judge Weick’s dis- ' senting opinion. Essentially, however, we believe the pain and hardship attendant upon the proposed deportation of Diaz-Salazar is not distinguishable from the conditions surrounding a substantial number of similar deportations. The Supreme Court in Wang has unmistakably instructed us not to substitute our judgment for that of the Immigration and Naturalization Service in these matters. Further, this court is without authority to suspend the immigration laws because Mexico has currently fallen into economic crisis. In this connection, the INS may undertake to review all deportations to Mexico in the light of current conditions.