Betancourt v. INS

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60141
CARLOS BETANCOURT,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
Petition for Review of an Order of the
Immigration and Naturalization Service
(A19 864 960)
January 16, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Petitioner seeks review of a deportation order entered by the
Board of Immigration Appeals.
Facts and Proceedings Below
Petitioner Carlos Betancourt-Olivares (Betancourt-Olivares),
a native and citizen of Mexico, entered the United States illegally
in 1967 at the age of twenty-one. He was first deported in
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
November of 1971 and was again deported in February of 1972. He
returned to the United States illegally shortly after his second
deportation and has lived continuously in this country since that
time.
In an Order to Show Cause dated July 8, 1991, the Immigration
and Naturalization Service (INS) alleged that Betancourt-Olivares
was in violation of 8 U.S.C. Sections 1251(a)(1)(A) & (B) because
he had entered the United States without inspection in 1972 and
because he was excludable at the time of his entry due to his prior
deportations. Betancourt-Olivares conceded deportability, but
applied for suspension of deportation and voluntary departure. The
Immigration Court denied his request for suspension of deportation
because he failed to prove that his deportation would cause extreme
hardship to himself, his wife, or his ten year-old daughter. His
request for voluntary departure was granted. Betancourt-Olivares
appealed the denial of his request for suspension of deportation to
the Board of Immigration Appeals (BIA). The BIA affirmed.
Betancourt-Olivares filed a timely petition for review with this
Court.
Discussion
To be eligible for suspension of deportation pursuant to 8
U.S.C. Section 1254(a)(1), an alien must have (1) been physically
present in the United States for a continuous period of at least
seven years immediately preceding the application; (2) good moral
character; and (3) shown that the deportation would result in
“extreme hardship” to himself or to a citizen or lawful permanent
2
resident spouse, parent, or child. 8 U.S.C. § 1254(a)(1);
Hernandez-Cordero v. United States, 819 F.2d 558, 560 (5th Cir.
1987)(en banc). The burden is on the alien to demonstrate
eligibility for a suspension of deportation, and even if the
eligibility requirements are met, the Attorney General retains the
discretion to refuse to suspend deportation. Hernandez-Cordero v.
United States, 819 F.2d at 560. This Court has likened the
Attorney General’s discretion to suspend deportation to that
exercised in dispensing presidential pardons. Id. at 561.
“Judicial review of such a highly discretionary decision is
strictly limited. . . .” Id.
The Board of Immigration Appeals (BIA) exercises discretion as
the Attorney General’s delegate and is empowered to decide what
constitutes extreme hardship in each case. Id. The BIA may
narrowly define extreme hardship, and such a narrow interpretation
is consistent with the “exceptional nature of the suspension
remedy.” INS v. Jong Ha Wang, 101 S. Ct. 1027, 1031 (1981).
Accordingly, the BIA’s substantive1 finding regarding extreme
hardship is reviewed under a strict standard for abuse of
discretion. Hernandez-Cordero v. INS, 819 F.2d at 561-63. We may
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
1
“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.” Hernandez-Cordero v. INS, 819
F.2d at 563. Betancourt-Olivares does not assert that the BIA
failed to satisfy its procedural responsibilities, thus this Court
does not address that matter.
3
severe hardship the alien could suffer and so severe that
any reasonable person would necessarily conclude that the
hardship is extreme.” Id. at 563.
Betancourt-Olivares has lived in the United States for most of
his adult life, and his wife and two of his children are United
States residents.2 He argues that he would suffer extreme hardship
if he is deported because: it will be difficult to find employment
in Mexico given his age and physical limitations; the adverse
economic conditions in Mexico will make it difficult to support his
family; he would not receive the medical care he requires; and his
close-knit family would be forced to separate when his wife and
children remained in the United States due to their inability to
face the hardships in Mexico.
Betancourt-Olivares also argues that his wife and daughter3
would face extreme hardship whether they return to Mexico with him
or remain in the United States. If his wife and daughter remain in
the United States, family separation would be an emotional and
financial strain on them. Alternatively, if his wife and daughter
return with Betancourt-Olivares to Mexico, they would face even
more difficult hardships. Betancourt-Olivares’s wife would not be
2
Betancourt-Olivares’s wife and minor daughter were permanent
legal residents at the time of the BIA decision; his seventeen
year-old son had applied for resident status but was in the United
States illegally.
3
Betancourt-Olivares does not limit his argument to the
hardships imposed on his wife and daughter. He also claims that
his deportation would cause extreme hardship to his seventeen year-
old resident son. The Immigration Court properly refused to
consider any hardship to the son, however, because he was present
in the United States illegally at the time of the hearing. See 8
U.S.C. § 1254(a)(1).
4
able to obtain employment, and his daughter would be denied
educational opportunities. Although all of the purported hardships
are very real problems likely to befall Betancourt-Olivares and his
family if he is deported, they are exactly the types of hardships
many aliens face on returning to their native countries on
deportation. Mere economic and social hardship which most aliens
would experience upon return to their native country is
insufficient to constitute the “uniquely extreme” hardship this
Court requires to overturn a BIA decision.4 Hernandez-Cordero v.
United States, 819 F.2d at 563; Vargas v. INS, 826 F.2d 1394, 1397
(1987).
On the record before us, the BIA did not abuse its discretion
in determining that the deportation would not result in extreme
hardship to Betancourt-Olivares or his lawfully resident family.
Accordingly, the BIA did not err in denying Betancourt-Olivares’s
application to suspend deportation.
Conclusion
For the foregoing reasons, the order of the BIA is
AFFIRMED.
4
In addition, there are factors which mitigate the above-
mentioned hardships. Betancourt-Olivares’s mother, two married
children, his sister-in-law, and his father-in-law all live in
Mexico. He owns property in Mexico, and his lawfully resident
daughter is bilingual. The Immigration Court also found that he is
in relatively good health.
5