Filipinas Lucero Casem v. Immigration and Naturalization Service , 8 F.3d 700 ( 1993 )

HARLINGTON WOOD, Jr., Senior Circuit Judge:

Filipinas Lucero Casern faces deportation for lying about her marriage. Finding the Immigration and Naturalization Service did not consider all relevant factors in making its decision, we reverse and remand for proceedings consistent with the following opinion.

I. BACKGROUND

In November 1983 Filipinas Lucero Ca-sern, a citizen of the Philippines, applied for a visa to the United States as an unmarried child of a permanent United States resident pursuant to 8 U.S.C. § 1153(a)(2) (now codified at 8 U.S.C. § 1153(a)(2)(A)). Shortly thereafter Casern discovered that she was pregnant. On December 12, 1983, Casern married the father of her unborn child, Eduardo Valera, also a citizen of the Philippines, in their native land. Six days later Casern entered the United States as a “second preference immigrant,” i.e. as an unmarried child of a resident, her father.

On May 25,1984, Casern’s son was born in this country. On November 27, 1984, Casern returned to the Philippines to visit her husband. The couple remarried in a church ceremony on January 6, 1985. Casern then came back to the United States on March 5, 1985. On March 7, 1985, she submitted a visa petition on behalf of her husband and listed their wedding date as January 6, 1985. The Immigration and Naturalization Service (“INS”) interviewed Casern regarding the petition on July 17, 1985. At the interview, Casem admitted that she had previously married her husband on December 12, 1983, and she withdrew her petition.

On July 18, 1985, the INS issued an Order to Show Cause (“OSC”) to Casern. The OSC charged Casern was deportable under 8 U.S.C. § 1251(a)(1). That statute classifies an alien as being “deportable” if the alien was “excludable by law” at the time of entry to the United States. An alien may be “ex-cludable” for dozens of reasons; the OSC stated Casern was excludable for the following three: (1) for committing fraud or misrepresentation to procure a visa or entry into the country by claiming to be unmarried, 8 U.S.C. § 1182(a)(19) (now codified at § 1182(a)(6)(C)(i)); (2) for entering the country to perform skilled or unskilled labor without certification from the Secretary of Labor, id. § 1182(a)(14) (now codified at § 1182(a)(5)(A)); and (3) for applying for admission without possessing a valid entry document, id. § 1182(a)(20) (now codified at § 1182(a)(7)(A)).

At a hearing before an Immigration Judge on April 30, 1986, Casern admitted she was deportable under section 1182(a)(19) by virtue of having obtained her visa by fraud or willful misrepresentation of material fact. In return for this admission, the government dropped the other charges against Casern. The sole issue then remaining was whether Casern was entitled to a waiver of deportation under section 1251(f) (now codified at § 1251(a)(1)(H)). That section allows the Attorney General at' her discretion to waive deportation of an alien who gained entry or a visa through fraud or misrepresentation if that alien is a “spouse, parent, son, or daughter” of a citizen or alien admitted for permanent residence. Id.

Casern argued that the equities favor waiving her deportation. Casern has extensive family in the United States, has a job here, and has no criminal record. Casern asserted that the sole reason for marrying her husband before leaving the Philippines was to avoid her child being born out of wedlock.

Casern also argued that if she were deported, her son, a United States citizen, would suffer. The son, now nine years old, had spent virtually his entire life in the United States, but likely would accompany Casern to the Philippines upon her deportation. Ca-sern argued that if her son returned to the United States upon reaching maturity, he would be deficient in education, language ability, social contacts, and cultural acclimatization compared to citizens who spend their entire pre-adult life in this country.

The Immigration Judge balanced the equities in this case and on June 2, 1986, denied Casern a waiver of deportation. On one hand, the judge noted that Casern was now the mother of a United States citizen, had a large extended family in the United States, including her father, stepmother, and brothers, has been a person of good moral character, and was employed. “She is in fact behaving,” stated the judge, “as we would wish someone to behave who wishes to seek the privileges of being a resident of this country....” On the other hand, the judge found Casern had not disclosed her marital status to the INS for a considerable period of time, had come to this country so that her child could be born here and become a United States citizen, and planned to later bring her husband to this country. The judge characterized her conduct as “a deliberate deception” and refused to exercise his discretion to grant a waiver. The judge failed to consider the hardship deportation would have on Casern’s son. Casern was allowed to exit the country voluntarily, in lieu of deportation, provided she left before August 1, 1986.

Casern appealed the Immigration Judge’s decision to the Department of Justice’s Board of Immigration Appeals (“BIA”). Four years later, and without explanation for its lengthy delay, the BIA issued its decision dismissing Casern’s appeal. The BIA also failed to address the hardship to Casern’s son.

II. DISCUSSION

The central issue in this case is whether the BIA must examine the hardship to Casern’s son that would result from the deportation of his mother. A statutory provision similar to section 1261(a)(1)(H), the provision at issue here, allows the Attorney General at her discretion to suspend a deportation order if, among other things, “deportation would ... 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. § 1264(a)(1). Although section 1254(a)(1) encompasses aliens excludable at the time of entry due to fraud or misrepresentation (as well as many other categories of aliens), that section requires seven years of continuous presence in the United States immediately preceding the date of application for suspension of deportation, a requirement Casern could not have satisfied at the time. See id.

Unlike section 1254(a)(1), section 1251(a)(1)(H), which is limited to aliens ex-cludable at the time of entry due to fraud or misrepresentation, contains no “extreme hardship” provision or other limitations on the discretion of the Attorney General. 8 U.S.C. § 1251(a)(1)(H) (placing the waiver decision “in the discretion of the Attorney General”). We cannot judicially combine two separate statutory provisions into one. Because section 1251(a)(1)(H) leaves the matter to the discretion of the Attorney General, we review the BIA’s determination using the abuse of discretion standard. Hernandez-Robledo v. I.N.S., 777 F.2d 536, 540 (9th Cir.1985). The abuse of discretion standard requires that the BIA take into account all relevant factors without acting in an arbitrary, illegal, or irrational fashion. Braun v. I.N.S., 992 F.2d 1016, 1019 (9th Cir.1993). We shall not assume the BIA considered factors that it failed to mention in its decision. Id.

Both the Immigration Judge and the BIA completely failed to address the effect Ca-sern’s deportation will have on her son, a nine-year-old United States citizen for whom the Philippines is a foreign land, obviously one of many relevant considerations. Although Casern appealed the Immigration Judge’s decision in June 1986, and filed her brief in 1987, the BIA did not render a decision until October 1991. In that lengthy interval, Casern’s son aged from two- to seven-years old. As best we can tell, the delay in addressing Casern’s appeal rests squarely with the INS — a delay which is not as exceptional as could be desired. See Rodriguez-Barajas v. I.N.S., 992 F.2d 94, 97 (7th Cir.1993) (noting “unconscionable” seven-year delay between petitioner’s appeal and BIA’s decision); Saywack v. Attorney General, No. 91 Civ. 7797, 1993 WL 205121, at *1 (S.D.N.Y. June 9, 1993) (discussing BIA’s series of “lengthy and unexplained delays”).

We have admonished the INS in section 1254(a)(1) cases to appraise carefully the effect deportation would have on an alien’s children who are United States citizens. See Cerrillo-Perez v. I.N.S., 809 F.2d 1419, 1426 (9th Cir.1987) (BIA must “consider the specific circumstances of citizen children and reach an express and considered conclusion as to the effect of those circumstances upon those children.”). Congressional, intent was similar with regard to section 1251(a)(1)(H). Congress enacted the waiver provision of section 1251(f), the predecessor to section 1251(a)(1)(H), to prevent the break-up of families comprised in part of American citizens or lawful permanent residents. See I.N.S. v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 480, 17 L.Ed.2d 318 (1966). Congress “was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties.” Reid v. I.N.S., 420 U.S. 619, 630, 95 S.Ct. 1164, 1170, 43 L.Ed.2d 501 (1975); see also Braun, 992 F.2d at 1018 (discussing humanitarian purpose of statute).

In its brief the respondent claims that the BIA takes into account the family ties of aliens requesting waivers of deportation. The inquiry into family ties, however, must not be limited to noting the benefits of living near one’s immediate or extended family. The BIA also must examine the impact of “untying” the family ties Congress sought to safeguard. That examination is especially important in this case in light of the BIA’s delays, during which time Casern’s son began attending school in this country. See Ramos v. I.N.S., 695 F.2d 181, 187 n. 16 (5th Cir.1983) (noting the “great difference between the adjustment required” of infants going to parent’s homeland and school age children facing same fate); Prapavat v. I.N.S., 662 F.2d 561, 562-63 (9th Cir.1981) (discussing potential hardship to six-year-old American in accompanying parents to foreign country); see also Jara-Navarrete v. I.N.S., 813 F.2d 1340, 1342 (9th Cir.1986) (directing INS to give United States citizen children individualized consideration); Ravancho v. I.N.S., 658 F.2d 169, 175-77 (3d Cir.1981) (instructing INS to consider effect move to Philippines would have on eight-year-old American citizen). Discretion, although a broad concept, is not so all-encompassing that it permits the BIA in a section 1251(a)(1)(H) proceeding to ignore totally a plainly relevant factor. Although the statute does not set forth that factor for particular consideration specifically as done in section 1254(a)(1), in making the epochal decision of whether to allow an alien to remain legally with her family in the United States the BIA must consider hardship to the children of potential deportees along with all other relevant factors.

III. CONCLUSION

Having found the BIA failed to consider all relevant factors, we must reverse and remand this case for further proceedings. We need not reach Casern’s remaining arguments. The BIA should note, however, that this circuit withdrew an authority upon which it relies heavily, and the decision therefore is not controlling. Compare Start v. I.N.S., 803 F.2d 539 (9th Cir.1986) (allowing fraudulent conduct to be divided for separate consideration in § 1251(f) waiver proceedings), withdrawn, 862 F.2d 787 (9th Cir.1988), with Braun v. I.N.S., 992 F.2d 1016 (9th Cir.1993) (forbidding initial fraud from being considered).¹

REVERSED AND REMANDED.

1 . We join in Judge Rymer's well-expressed concurrence, except only for the last paragraph. We seem to differ primarily as to the consideration the BIA must give to the effect of deportation on children as it arises in this case. In the majority’s view the specific mention of children in 8 U.S.C. § 1254(a) surely does not mandate that the BIA may not also consider children along with other factors when considering a waiver of deportation under 8 U.S.C. § 1254(a)(1)(H).

Casern raised the issue of hardship to her child in this appeal, and that point serves as an alternate basis for the remand in addition to the issue explained by Judge Rymer. Our holding in this respect should be useful to the Immigration and Naturalization Service when it re-examines the case.